Lil Shining Stars, Inc. v. Dep't of Human Servs.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lil Shining Stars, Inc., :

Petitioner :

: No. 693 C.D. 2015

v. :

: Submitted: January 22, 2016

Department of Human Services, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

JUDGE McCULLOUGH FILED: June 8, 2016

Lil Shining Stars, Inc. (Petitioner) petitions for review of the March 31,

2015 order of the Chief Administrative Law Judge for the Department of Human

Services (Department), Bureau of Hearings and Appeals (Bureau), adopting in its

entirety the recommendation of an Administrative Law Judge (ALJ) to deny

Petitioner’s appeal from the Department’s revocation of its certificate of compliance

to operate a child care center.

Petitioner was a group child care home with a certificate of compliance

located at 3880 Glendale Street, Philadelphia, Pennsylvania, and was owned and

operated by Regina (nee Guyton) Thompson (hereafter Owner). On September 27,

2012, a Department certification representative and her supervisor arrived for an

unannounced inspection of Petitioner’s facility. A worker at the facility initially

refused entry because Owner was not home. The inspection team informed the

worker that they needed access and the worker responded that she was going to call

Owner. After a few minutes, the worker opened the door and allowed the inspection

team access to the facility.1 (ALJ’s Findings of Fact Nos. 1-2.)

On October 2, 2012, two representatives of the Department,

accompanied by two police officers, conducted another unannounced inspection of

the facility. The Department representatives identified three staff persons at the

facility, including Owner, her mother, and her sister. During the inspection, the

Department representatives noted multiple regulatory violations, including, inter alia,

leaving a child in a highchair for an extended period of time with no contact by staff;

documentation missing from staff members’ files; an open and accessible window; an

uncovered electrical outlet in the child care space; an accessible bottle of hand

sanitizer; lack of a written plan of daily activities and routines; missing emergency

contact information in children’s files; lack of an emergency shelter plan; and two

recalled highchairs.2 (ALJ’s Findings of Fact No. 3.)

By letter dated October 16, 2012, the Department notified Owner of each

of the regulatory violations found during the October 2 inspection and requested that

Petitioner complete a plan of correction. Petitioner submitted two plans of correction,

each of which the Department rejected as unacceptable. After further discussions, the

Department and Owner reached an oral agreement as to an acceptable plan of

1

Nevertheless, as will be discussed below, the Department certification representative and

her supervisor never completed the inspection.

2

When told of the violation relating to the unattended child in a highchair, Owner

immediately removed the child from the chair and placed her on the floor. When told of the

violation relating to the recalled highchairs, Owner immediately placed the chairs in the trash.

2

correction for Petitioner’s facility. The Department then forwarded a written draft of

the agreement to Owner, but she refused to sign.3 (ALJ’s Findings of Fact Nos. 4-8.)

On December 3, 2013, a Department early learning program

representative and certification representative supervisor conducted a third,

unannounced inspection of the facility. During this inspection, Department

representatives again noted multiple regulatory violations, including, inter alia,

missing documentation, including required clearances, in staff member files; seven

uncovered electrical outlets in the child care space; an accessible window in the child

care space; nails protruding from the wall in the child care space; a broken toy that

created a pinch point for a child; an unlabeled bottle; and lack of proof of insurance

for the facility. (ALJ’s Findings of Fact No. 9.)

On January 3, 2014, the Department sent Owner a notice revoking

Petitioner’s certificate of compliance. Owner thereafter filed a notice of appeal and

the matter was assigned to the ALJ. From July to December 2014, the ALJ

conducted five administrative hearings and heard testimony from seven witnesses,

including Owner; Kya Thompson, an Early Learning Program Representative from

the Department’s Office of Child Development and Early Learning (OCDEL); Asia

Sheppard, a Certification Representative Supervisor for OCDEL; Don Jackle, a

retired Certification Representative Supervisor for OCDEL; Amanda Dorris, former

Chief, Division of Regulatory Administration, OCDEL; Tania Schultz, a Certification

Representative for OCDEL; and Carmen Martin, Regional Director, Southeast

Region, OCDEL. The ALJ further admitted numerous exhibits into the record from

both parties. (ALJ’s Findings of Fact Nos. 10-11.)

3

Owner would later testify that the written agreement was substantially different from the

oral agreement reached by the parties.

3

Owner testified she lives at 3880 Glendale Street, Philadelphia,

Pennsylvania, in a 1,200 square foot home which consists of Petitioner’s facility on

the first and second floors and her living space on the third floor. Owner stated that

she graduated high school, attended classes at both a community college and the

Wharton School of Business, and also attended some continuing education courses.

Owner said that she opened her business in 2003 and that she has employed her two

sisters and her mother since that time. 4 Owner noted that she never had any

compliance issues with inspections through 2011. However, Owner testified that she

began having problems with the Department in 2009, including confusion over the

number of different offices, both state and local, that she was required to deal with

and the different information she received, prompting her to make complaints to the

Department and visit the regional office. Following her most recent complaints

regarding unfair treatment over violations notices posted on a website maintained by

the Department and accessible to the public, as well as the filing of a complaint

against Regional Director Martin with the Office of Attorney General, Owner

indicated that the Department conducted its first unannounced inspection in

September of 2012. (N.T., 11/21/14, pp. 96-130.)

Owner recalled receiving a phone call from her mother on her way to the

store on September 27, 2012, regarding the arrival of two women at the facility to

conduct an inspection. She testified that she instructed her mother to allow the

women into the facility and that the women were inside when she returned. Owner

stated that she asked why she was being inspected at that time when she was just

4

Owner stated that her mother dropped out of school in 10th grade and later attended GED

classes and received a certificate, but has not sat for the actual GED test. (Notes of Testimony

(N.T.), 11/21/14, p. 117.) Owner noted that it was her understanding that a secondary staff person

was only required to have a minimum of an 8th-grade education. Id. at 118.

4

inspected in June of 2012, and whether it was in response to her filing of a complaint,

at which point the women exited the facility to make a call. As the women were

exiting, Owner informed them that she was calling her attorney, the police, and a few

parents. Owner noted that the women left without conducting an inspection, after

which she wrote letters to the Philadelphia Daily News, her Congressman and State

Senator, Reverend Al Sharpton, and Deputy Secretary Barbara Metzinger, voicing

her complaints and alleging that certain Department officials manipulate the rules to

their advantage. (N.T., 11/21/14, pp. 137-42.)

Owner also recalled the October 2 inspection conducted by Jackle, as he

had assisted her in the past. She noted that Jackle and another individual waited

outside for two police officers to arrive before proceeding inside. She described one

of the police officers as being nasty and threatening toward her and stated that both

officers searched her entire house, including her private residence on the third floor.

She insisted that she overheard Jackle on the phone with Regional Director Martin,

with Martin advising Jackle to find anything he could. Owner noted that the

inspection took four hours, whereas they normally take forty-five minutes to an hour.

She also noted that she placed two highchairs in the trash after she was advised by

one of the Department’s representatives that the chairs had been recalled. Owner

then proceeded to dispute each of the violations found by the inspectors. (N.T.,

11/21/14, pp. 143-82.)

Owner testified that her attorney at the time prepared and submitted

plans of corrections to the Department, but the Department rejected the same. Owner

stated that she obtained new counsel and was able to reach an oral agreement with the

Department regarding correction of four outstanding issues. However, Owner said

that she later refused to sign a written agreement meant to memorialize the terms of

5

the oral agreement because it was completely different from what she agreed to.

Following this refusal, on December 3, 2013, Owner noted that the Department sent

Thompson to conduct a third, unannounced inspection of the facility. Owner then

proceeded to dispute each of the violations found during this inspection, many of

which were included on the previous inspection summary and for which she believed

she had provided adequate supporting documentation to the Department. (N.T.,

11/21/14, pp. 182-206.)

Subsequent to this inspection, Owner testified that she sent a letter to

Thompson disputing Thompson’s observations/violations and requesting that

Thompson meet with her and her attorney to discuss the same. However, Owner

stated that her counsel was advised her request for a meeting was denied, after which

the Department initiated proceedings to revoke Petitioner’s certificate of compliance.

(N.T., 11/21/14, pp. 206-07.)

On cross-examination, Owner insisted that she attended the necessary

training and received a certificate necessary for her re-entry into the Department of

Education’s child/adult food subsidy program, despite numerous questions raised by

counsel for the Department regarding her attendance. Owner conceded that during

the September 27, 2012 inspection, there was a period of time that her mother was

left alone to watch the children in the daycare when she ran to the store. While the

files failed to indicate that her mother had first-aid training, Owner testified that all

employees, including her mother and her sister, as well as her husband who

occasionally assists her and was present at the facility at the time, had first-aid

training. Owner also alleged that Department representatives had taken

documentation evidencing this training. (N.T., 11/21/14, pp. 222-56.)

6

Owner further conceded that there were times when she had to leave her

mother with the children at the facility in order to pick up other children from a

school bus. Owner stated that she brought this issue up in one of her complaints to

Regional Director Martin. Owner reiterated that her sister or her husband, both of

whom she considered staff members, would often be at the facility when she was not

there. Owner noted that many of her purported violations were corrected onsite,

immediately after she was notified of the same. Owner refused to acknowledge that

she left any toxic substances, including hand sanitizer, in areas accessible to children

in her care. (N.T., 12/9/14, pp. 16-36.)

The Department first presented the testimony of Thompson, an Early

Learning Program Representative from the OCDEL. Thompson testified that she

conducted the December 3, 2013 unannounced inspection of the facility along with

her supervisor, Sheppard. Thompson stated that Owner, as well as Owner’s mother

and husband, were present at the time of the inspection. Thompson identified an

inspection summary she completed following the inspection and proceeded to discuss

each of the fourteen regulatory violations she found and the reasons underlying the

same. Thompson specifically denied ever being asked or coerced into finding

violations against the facility; rather, she noted that she personally observed each of

the violations. (N.T., 10/22/14, pp. 27-58.)

On cross-examination, Thompson acknowledged that the bulk of the

violations present during the October 2, 2012 inspection were not present during the

December 3, 2013 inspection. Thompson also conceded that her inspection summary

reveals that the Department accepted a plan of correction for each of the fourteen

regulatory violations. On re-direct examination, Thompson testified that the fact that

a plan of correction is accepted does not negate the existence of the violation.

7

Thompson stated that, with the exception of new employees, the failure to maintain

employee documentation in their respective files at all times constitutes a violation.

(N.T., 10/22/14, pp. 78-103.)

The Department next called Thompson’s supervisor, Sheppard, to

testify. The parties stipulated that Sheppard would testify that she observed the same

violations as Thompson during the December 3, 2013 inspection. Sheppard testified

briefly regarding the physical/health assessment records that are required to be

maintained in each employee’s file, including whether a physical was performed and

whether the employee had any communicable diseases, such as tuberculosis.

Sheppard stressed that such records are required to be on file at all times. Counsel for

Owner did not cross-examine Sheppard. (N.T., 10/22/14, pp. 107-14.)

Jackle next testified that he retired from the Department in May of 2013,

having worked for the preceding twelve years as a Certification Representative

Supervisor for OCDEL. He described himself as an annuitant, i.e., a retired

employee who returns for some temporary work with the Department. Jackle stated

that he conducted the October 2, 2012 unannounced inspection of the facility along

with another Department representative, Steven Jones, and two police officers.

Jackle noted that he was advised to contact the police because there had been a

previous issue of the Department being denied access to the facility. Jackle identified

an inspection summary he prepared following the October inspection, which lasted

for approximately five hours. (N.T., 10/22/14, pp. 116-26.)

Jackle proceeded to discuss each of the twenty-four regulatory violations

contained in his summary and the reasons underlying the same, as well as Petitioner’s

twice-submitted plans of correction and the Department’s rejection of these plans.

He later clarified that the Department accepted certain corrections offered by

8

Petitioner, but he was not aware if the corrections were actually completed. Finally,

he discussed OCDEL’s process for revoking a facility’s license, noting that the matter

is first discussed locally with inspection staff and the regional director and then the

matter is forwarded to the Department’s main office in Harrisburg where a final

determination is made. Jackle testified that he would estimate that a minimum of

three individuals review a denial recommendation before any final action is taken.

(N.T., 10/22/14, pp. 126-177; N.T., 10/29/14, pp. 10-26.)

On cross-examination, Jackle testified that Martin, his direct supervisor,

directed him to conduct the October 2, 2012 inspection and advised him to bring

police with him due to prior problems with gaining access to Petitioner’s facility.

Jackle acknowledged that Owner approached him on the sidewalk and invited him in

prior to police arriving at the facility. Jackle noted that the police officers were only

present for the first hour or two of the inspection and remained outside in the porch

area of the facility. Jackle stated that he did not recall placing a call to Martin after he

gained access to the facility and denied any knowledge of a June 2012 inspection. He

did indicate that Owner was required to abide by a handbook of regulations that

included approximately 200 individual regulations. (N.T., 10/29/14, pp. 26-41.)

Counsel for Owner then addressed multiple prior violations which Jackle

conceded were not present during his inspection. Jackle further admitted that Owner

corrected at least one of the violations on the day of the inspection, that he could not

recall why the majority of Petitioner’s plans of correction were rejected, and that he

never returned to the facility to check if other corrections had been implemented.

(N.T., 10/29/14, pp. 44-125.)

On re-direct examination, Jackle reiterated that the police officers

remained outside of the facility and were never in the same room with the children.

9

Jackle testified that the children did not appear to be upset during his inspection.

Jackle also stated that the fact that a violation was corrected, or a plan of correction

was accepted, does not negate the violation, even if he was to observe the same

during a follow-up visit. (N.T., 10/29/14, pp. 125-33.)

Dorris next testified that she had served as Chief of OCDEL’s Division

of Regulatory Administration for a period of six years, during which time she

reviewed sanction referrals relating to child care providers/facilities that received

multiple violations. Dorris stated that the referrals are transmitted by the regional

offices, after a discussion between the certification representative, his/her supervisor,

and the regional director. She then discusses the matter with OCDEL’s legal counsel

and either she or her staff draft an enforcement letter, which is forwarded to the

deputy secretary for her signature. By the time it reaches this stage, Dorris noted that

the matter has been reviewed by at least seven different individuals. Dorris also

noted that she rejected revocation referrals during her tenure. (N.T., 10/29/14, pp.

136-44.)

Dorris specifically recalled that matter involving Petitioner, as she

received the revocation referral and may have actually drafted the revocation. She

testified that she believed the facts of the matter warranted revocation of Petitioner’s

certificate of compliance, especially in light of Petitioner’s repeated violations and its

failure to provide an acceptable plan of correction for the bulk of its violations.

Dorris stated that OCDEL requested three plans of correction in this case, all of

which were rejected as unacceptable. (N.T., 10/29/14, pp. 144-56.)

On cross-examination, Dorris testified that the decision to revoke is

based on criteria found in applicable statutes and Department regulations. Dorris

noted that an acceptable plan of correction would be one where a provider shows how

10

it would achieve and maintain compliance with Department regulations. When

questioned about a recalled highchair, Dorris explained that throwing the highchair in

the trash was not an acceptable correction, that Petitioner would have to state how it

will ensure that a child does not use a recalled highchair in the future, e.g., by

routinely checking the consumer product safety recall list. Dorris could not recall if

she discussed Petitioner’s revocation with staff in the local office. Dorris noted that

Petitioner had at least nine repeat violations in the 2013 inspection, which would

justify a revocation based on gross incompetence, negligence, and misconduct.

(N.T., 10/29/14, pp. 156-67.)

The Department next presented the testimony of Schultz, a certification

representative for OCDEL who, along with her supervisor Julie Merit, was to conduct

the September 27, 2012 unannounced inspection of Petitioner’s facility. Schultz

testified that she and Merit knocked on the door of the facility, that a caregiver

partially opened the door, and that they identified themselves and the purpose of their

visit. Schultz stated that the caregiver informed them Owner was not home and shut

the door, only to briefly reopen the door to advise them that she was calling Owner.

Schultz noted that the caregiver eventually opened the door after a few minutes.

Shortly thereafter, Schultz said that Owner called the facility to speak with her, that

Owner was upset and angry, questioning why they were there, and asserting they had

no business being there, after which she handed the phone to Merit. Upon

completion of the call, Merit instructed Schultz that they would wait outside for

Owner to arrive. (N.T., 11/21/14, pp. 11-15.)

Schultz testified that Owner was still upset and angry when she arrived

back at the facility, again questioning why they were there. Schultz explained to

Owner that she and Merit were there for an unannounced inspection and not in

11

response to a complaint as Owner appeared to believe. Schultz stated that Owner

then began making statements about Martin and Martin’s desire to shut down

innocent providers. Schultz noted that a parent arrived at the scene and Owner

advised that the parent was present to observe their office’s “dirty work.” Schultz

said that after a few more people started to gather around them, she and Merit advised

Owner that they needed to contact the office and began walking back to their car,

only to be followed by Owner and the group of people. Schultz characterized her

feelings at that time as unsettled, nervous, and frightened. Schultz noted that after

Merit spoke with someone at the office, Merit informed Owner they were not going

to conduct an inspection and she and Merit got back in their car and returned to the

office. Schultz testified that Owner proceeded to demand that they come back inside

and complete the inspection in front of everyone present. Schultz denied any

perceived bias against Owner by anyone at OCDEL or that she was coerced or asked

to fabricate violations against Petitioner/Owner. (N.T., 11/21/14, pp. 16-27.)

On cross-examination, Schultz admitted that she and Merit were

eventually allowed access to the facility and were there long enough for the caregiver

to identify the children that were present. Schultz denied that Owner later invited her

and Merit back into the building to conduct the inspection, reiterating that Owner

demanded that they return and conduct the inspection in front of all the individuals

present at the facility. Schultz noted that she prepared a report following the incident

and forwarded the report to human resources in Harrisburg. (N.T., 11/21/14, pp. 27-

34.)

The Department then presented its final witness, Martin, Regional

Director of the Southeast Region for OCDEL. Martin explained the role of OCDEL

and her duties as manager of an office that overseas approximately 3,100 facilities in

12

her region. Martin testified that she first came into contact with Owner in early

September of 2012 when Owner arrived at the office to file a complaint regarding a

subsidy coordinator who worked in another office. Martin stated that Owner accused

her of closing down facilities, not being a nice person, and harmful to children.

Martin later discovered that her office had previously investigated and verified a

complaint filed against Petitioner by the subsidy office regarding the capacity of

Petitioner’s facility. Martin stated that the September 27, 2012 unannounced

investigation was to ensure that Petitioner had corrected the capacity issue. Martin

recalled talking to Merit that day and advising her to return to the office, which

prompted the request for police presence during the next inspection. Martin noted

that the decision to request that police accompany an inspector is based on a variety

of factors, including prior inspection experience, and involves a discussion with staff

and legal counsel. (N.T., 11/21/14, pp. 38-47.)

Martin next discussed the revocation process, which begins with the

certificate representative and, at times, a supervisor. She testified that the failure to

remediate violations can be a basis for revocation and that a provider is generally

permitted three attempts to develop an acceptable plan of correction, although the

regulations allow the Department to proceed with a revocation after just two attempts.

She noted that a decision to revoke can be premised on a single violation. Martin

explained that the decision to revoke starts with her and her staff and involves

multiple people and levels of review, including the Division of Regulatory

Administration in Harrisburg, the Bureau director, the Office of Legal Counsel, and

the Department’s Deputy Secretary. (N.T., 11/21/14, pp. 48-51.)

On cross-examination, Martin testified that the decision to request that

police accompany an inspector is made by her, the Bureau director, and the Office of

13

Legal Counsel. Martin stated the police presence was requested for the October 2,

2012 inspection because of the experience of Schultz and Merit during the September

27, 2012 inspection. Martin acknowledged that her staff had no issue with access to

Petitioner’s facility during the October and December inspections. Martin said that,

when she first met with Owner, Owner wished to file a complaint against an

individual with the subsidy office, that she explained she had no oversight of that

office, and that she recommended that Owner put her concerns in writing, but she

never received the same. Martin noted that it was her understanding that the police

would remain onsite for the entire inspection and not participate in the inspection.

Martin specifically denied ever being disciplined for her actions toward Owner in this

matter. Martin also denied that she favored suburban owners of daycare centers or

had knowledge of any newspaper investigating such an allegation. (N.T., 11/21/14,

pp. 51-80.)

On re-direct examination, Martin testified that prior to September 27,

2012, Petitioner had overlapping enrollment where there were more than the

permitted twelve children present in the facility. Martin reiterated that this issue

precipitated the September inspection. Martin further explained that applicable

statutes and regulations permit both announced and unannounced inspections of

childcare facilities. (N.T., 11/21/14, pp. 90-91.)

The ALJ thereafter issued an adjudication recommending that

Petitioner’s appeal from the Department’s revocation of its certificate of compliance

to operate a child care center be denied. The ALJ concluded that the Department had

proved that Petitioner violated multiple Department regulations and, hence, the

Department properly exercised its discretion to revoke Petitioner’s certificate of

compliance. In his adjudication, the ALJ separately reviewed each of the thirty-eight

14

violations identified by Department representatives in both the October 2, 2012, and

December 3, 2013 inspection summaries and found that the Department had

presented sufficient evidence establishing thirty-one of these violations. The ALJ

noted that the Department’s subsequent acceptance of a plan of correction does not

negate the underlying violation. The ALJ rejected Owner’s claims that the

Department initiated the inspections in retaliation for her attempt to file a complaint

against a Department official and that the October 2, 2012 inspection constituted an

unlawful and unconstitutional search and seizure. Finally, the ALJ noted that

Petitioner’s lack of violations prior to the October 2, 2012 inspection carried no

weight in these proceedings. By order dated March 31, 2015, the Bureau’s Chief

Administrative Law Judge adopted the ALJ’s recommendation in its entirety.

Petitioner thereafter filed a petition for review with this Court.

On appeal,5 Petitioner argues that the inspections conducted by the

Department/OCDEL were unconstitutional. We disagree.

Section 1016 of the Public Welfare Code (Code), Act of June 13, 1967,

P.L. 31, as amended, 62 P.S. §1016, provides the Department with the right to enter

and inspect a licensed premises. This section states that:

For the purpose of determining the suitability of the

applicants and of the premises or whether or not any

premises in fact qualifies as a facility as defined in section

1001 of this act or the continuing conformity of the

licensees to this act and to the applicable regulations of the

department, any authorized agent of the department shall

5

Our scope of review in an appeal of an adjudication of the Department is limited to

determining whether constitutional rights were violated, whether an error of law was committed or

whether necessary findings of fact were supported by substantial evidence. Section 704 of the

Administrative Agency Law, 2 Pa.C.S. §704; KC Equities v. Department of Public Welfare, 95

A.3d 918, 925 (Pa. Cmwlth. 2014).

15

have the right to enter, visit and inspect any facility licensed

or requiring a license under this act and shall have full and

free access to the records of the facility and to the

individuals therein and full opportunity to interview, inspect

or examine such individuals.

An authorized agent of the department shall also confer

with the operators of facilities regarding the minimum

standards of the department, encourage the adoption of

higher standards and recommend methods of improving

care and services.

62 P.S. §1016.

The Department’s regulations expound upon this statutory authority.

Sections 20.31 and 20.32 of the regulations provides that an authorized agent of the

Department, such as the OCDEL in this case, will conduct an annual inspection of a

facility and that the facility will be provided with advanced notice of this inspection.

55 Pa. Code §§20.31, 20.32. Section 20.33 of the regulations states that a facility

will be subject to both announced and unannounced inspections, including complaint

inspections. 55 Pa. Code §20.33. Additionally, section 20.34 requires a facility to

provide the Department with “full access to the facility or agency and its records

during both announced and unannounced inspections” as well as “the opportunity . . .

to privately interview staff and clients.” 55 Pa. Code §20.34. Section 3280.23

further discusses the Department’s inspection process, providing as follows:

(a) A staff person shall provide to agents of the Department

immediate access to the facility and, upon request, to the

children and the files and records.

(b) An inspection will be conducted during normal

business hours except when there is reasonable cause to

believe that inspections at other times are necessary to

detect violations of applicable statutes and regulations.

16

(c) An agent of the Department will inspect compliance

with this chapter in all areas of the facility premises that are

accessible to children.

55 Pa.Code §3280.23(a)-(c). Further, the Department may revoke a facility’s

certificate of compliance for even a single violation of its regulations. Section

3290.12(c) of the Department’s regulations, 55 Pa. Code §3290.12(c);6 Altagracia De

Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353, 356 (Pa.

Cmwlth. 2007) (“It is well settled that one regulatory violation is sufficient to revoke

a license issued by DPW....”).

Petitioner’s argument focuses exclusively on the Fourth Amendment to

the United States Constitution, which guarantees:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation,

6

Section 3290.12(c) states that the Department may revoke a certificate of compliance for

one or more of the following reasons:

(1) Noncompliance with the registration law or this chapter.

(2) Fraud or deceit in the self-certification process.

(3) Lending, borrowing or using the certificate of another operator,

or in any way knowingly aiding the improper issuance of a certificate

of registration.

(4) Gross incompetence, negligence or misconduct in operating the

facility.

(5) Mistreating or abusing children cared for in the facility.

(6) Failure to submit to the Department an acceptable plan to correct

noncompliance.

(7) Failure to comply with the acceptable plan to correct

noncompliance.

55 Pa. Code §3290.12(c)(1)-(7).

17

and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. CONST. amend. IV. Petitioner correctly notes that our United States Supreme

Court has long recognized that “the Fourth Amendment’s prohibition on

unreasonable searches and seizures is applicable to commercial premises, as well as

to private homes.” New York v. Burger, 482 U.S. 691, 699 (1987). While Petitioner

admits that it is engaged in a commercial activity that is heavily regulated, Petitioner

contends that the existence of statutes granting a governmental entity the right to

conduct an administrative inspection “does not automatically fulfill the Fourth

Amendment’s ‘reasonableness’ requirement, or always excuse the need for a

warrant.” (Petitioner’s brief at 17.)

Petitioner suggests that there must be a heightened concern for the

reasonableness requirement of the Fourth Amendment where, as here, a statute

authorizes administrative inspections but the governmental entity, i.e., the

Department, has no policies or procedures that direct its employees on the procedure

to be followed during said inspections. Furthermore, Petitioner contends that the

statute and the governmental entity’s actions “must limit the discretion of the

inspecting officers,” especially in regard to “time, place, and scope.” Burger, 482

U.S. at 703 (quoting United States v. Biswell, 406 U.S. 311, 315 (1972)). We do not

disagree with Petitioner as to the overall importance of the “reasonableness”

requirement of the Fourth Amendment or the need for some limitation on the

discretion of inspecting officers; however, we do disagree with Petitioner insofar as it

alleges that the statute and regulations discussed above fail to ensure such

“reasonableness,” fail to limit the discretion of inspecting officers, and are per se

unconstitutional.

18

As noted above, Petitioner admits that it is engaged in a commercial

activity that is heavily regulated. Petitioner does not contest the need for such

regulation in an industry entrusted with the care of children. Indeed, in a recent

unpublished opinion affirming the Department’s order refusing to renew a certificate

of compliance for a day care facility, this Court stated that “[t]here is no question that

the purpose underlying the provisions of the Public Welfare Code and DPW

regulations . . . were enacted for the purpose of protecting the health and safety of the

children of the Commonwealth who enter day care facilities, and that this is a

legitimate and valid objective.” The Preschool Academy, Inc. v. Department of

Public Welfare (Pa. Cmwlth., No. 484 C.D. 2014, filed December 30, 2014), slip op.

at 13.7

Contrary to Petitioner’s arguments, the statutory and regulatory

provisions discussed above do not infringe on Petitioner’s right to be free from an

unreasonable search under the Fourth Amendment, but rather balance the

government’s need to protect these children with the extent of access necessary to

ensure the same, including specific limitations on the time, place, and scope of a

government inspection. More specifically, section 1016 of the Code provides the

necessary authority to the Department or its agent to visit and inspect any licensed

facility, including full access to the facility’s records and staff. The regulations then

advise licensed facilities that in addition to an announced annual inspection, they also

may be subject to unannounced inspections. However, the regulations generally limit

such inspections to normal business hours with a limited exception for inspections

7

Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code

§69.414(a), an unreported Commonwealth Court panel decision issued after January 15, 2008, may

be cited for its persuasive value, but not as binding precedent.

19

during non-business hours when the Department believes that the facility may be

attempting to conceal violations. Additionally, the regulations restrict the scope of an

inspection to the areas that would be accessible to children.

Further, it is presumed when construing a statute that the legislature did

not intend to violate either the United States or Pennsylvania Constitutions. Section

1922(3) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(3); Hospital

Utilization Project v. Commonwealth, 487 A.2d 1306, 1312 (Pa. 1985). The party

challenging the constitutionality of a statute bears the heavy burden of establishing

that the statute clearly, palpably and plainly violates the Constitution, with any

uncertainty being resolved in favor of its validity. Reiter v. Commonwealth, 525

A.2d 446, 449 (Pa. Cmwlth.), appeal denied, 534 A.2d 770 (Pa. 1987). Petitioner

simply cannot meet such an elevated burden in this case.

First, as discussed above, the Department’s regulations adequately limit

the time, place, and scope of an inspection. More importantly, this Court has

previously refused to extend the protections of the Fourth Amendment to other

situations involving highly regulated industries. See, e.g., Holmes Constant Care

Center v. Department of Public Welfare, 555 A.2d 282 (Pa. Cmwlth.), appeal denied,

562 A.2d 828 (Pa. 1989) (denying renewal of license to operate a personal care

home); Peterson v. Pennsylvania State Horse Racing Commission, 449 A.2d 774 (Pa.

Cmwlth. 1982) (affirming ejection of vendor from a horse racing track for carrying a

firearm onto track grounds).

In Holmes Constant Care Center, we concluded that a personal care

home whose license was not renewed because of the facility’s lack of compliance

with the applicable statute and regulations failed to cite any authority in support of its

position that the protections of the Fourth Amendment applied “where a licensed

20

entity consents, either impliedly or expressly, to periodic inspections of its premises.”

555 A.2d at 285. In Peterson, we noted that the horse racing industry was widely

known to be highly regulated and concluded that an individual vendor’s entry into a

restricted area of a horse racing track, even without a valid license,8 constituted

implied consent to a warrantless search of his person and premises consistent with the

regulations of the Pennsylvania State Horse Racing Commission as well as a waiver

of his Fourth Amendment protections. Again, Petitioner admits that it is engaged in a

commercial activity that is heavily regulated and the applicable statutory and

regulatory provisions are clear that Petitioner is subject to inspections, both

announced and unannounced. Hence, Petitioner’s constitutional arguments must

fail.9

We note that, in the course of this argument, Petitioner places heavy

emphasis on the presence of police officers and their purported simultaneous search

of the facility on October 2, 2012, including a search of the private living area of

Owner and her family, at the direction of Department representatives. However,

Jackle explained that the presence of the police officers was requested due to a

previous issue regarding access to the facility and that once he and Jones gained

access, the police officers waited outside on the porch of the facility. In addition,

Martin similarly explained that a police presence was requested due to the initial

denial of access during the September 27, 2012 inspection and the situation that

8

The vendor had obtained a vendor’s license in 1979 and 1980 but never obtained a valid

license for 1981 when the firearm was found in his vehicle.

9

In light of this conclusion, we need not reach Petitioner’s argument that any evidence of

regulatory violations discovered by the Department’s representatives should be excluded from

evidence and the enforcement action enjoined because the inspections were unconstitutional and

unlawful.

21

developed subsequent to Owner’s arrival at the facility on that day. During her cross-

examination, Martin further stressed that the Department does not regulate, supervise,

or have any jurisdiction over police officers, that the Department did not ask the

officers to participate in the October 2, 2012 inspection, and that their presence was

required simply to ensure the inspectors had no problem gaining access to the facility.

See N.T., 11/21/14, pp. 57-58, 73. Hence, any purported actions of the police officers

are not relevant to this case and the determination of whether the Department

established sufficient grounds justifying the revocation of Petitioner’s certificate of

compliance to operate a child care center.

Petitioner also argues that the Department’s inspections constituted an

impermissible retaliation against Owner for the exercise of her First Amendment

rights in seeking to file a complaint against a Department official. Again, we

disagree.

As Martin explained in her testimony, the official against whom Owner

sought to file a complaint worked with a different office, one that oversaw a food

subsidy program, and not with OCDEL, which conducted the inspections. Martin

also explained that the initial investigation in September 2012 was prompted by a

complaint from the subsidy office regarding the number of children at Petitioner’s

facility, which the Department had verified was in excess of the limit of twelve

children. As noted above, section 20.33 of the Department’s regulations advises that

a licensed facility will be subject to both announced and unannounced inspections,

including complaint inspections. Further, the record reveals that multiple

investigations were necessary as a result of the actions of Petitioner’s staff, including

Owner, and numerous repeated violations of the same regulations which Petitioner

failed to correct to the satisfaction of the Department.

22

Finally, Petitioner argues that it was entitled to a provisional license

pursuant to section 1008 of the Code, 62 P.S. §1008, because it made timely

corrections to the noted violations and was in substantial compliance with the

Department’s regulations. Once more, we disagree.

Section 1008 states that:

(a) When there has been substantial but not complete

compliance with all the applicable statutes, ordinances and

regulations and when the applicant has taken appropriate

steps to correct deficiencies, the department shall issue a

provisional license.

(b) The department may issue a provisional license under

this section when it is unable to assess compliance with all

statutes, ordinances and regulations because the facility has

not yet begun to operate.

(c) A provisional license shall be for a specified period of

not more than six months which may be renewed no more

than three times.

(d) Upon full compliance by the facility, the department

shall issue a regular license immediately.

62 P.S. §1008(a)-(d).10

Petitioner relies on the testimony of Owner stating that all of the alleged

violations were corrected either on the spot or immediately thereafter in the form of a

corrective plan submitted to the Department. However, Petitioner neglects that many

of the violations found during the December 3, 2013 inspection were repeat

violations and that the Department rejected Petitioner’s three proposed plans of

correction. In such cases, this Court has found a lack of substantial compliance

10

Section 20.54(a) of the Department’s regulations similarly provides that “[a] provisional

certificate of compliance is issued if the facility or agency is in substantial, but not complete,

compliance with applicable statutes, ordinances, and regulations.” 55 Pa. Code §20.54(a).

23

sufficient to warrant the issuance of a provisional license. See Burroughs v.

Department of Public Welfare, 606 A.2d 606 (Pa. Cmwlth. 1992). In Burroughs, we

noted that the number of violations at the petitioner’s facility had either increased or

remained constant since the time of the first inspection, including at least one

violation that was present at seven of the last eight inspections. Hence, we concluded

that the petitioner had not demonstrated the substantial compliance necessary to be

issued a provisional license. We reach the same conclusion in this case.

We note that Petitioner asserts that the vast majority of violations found

by the Department were ministerial in nature, such as missing paperwork, and did not

pose an immediate threat of danger to the children at its facility. Petitioner also

asserts that the Department maintains over 400 regulations and that no single

proprietor could reasonably be expected to be in compliance with every regulation.

However, Petitioner provides no authority to support how these assertions would

justify a finding of substantial compliance. Petitioner opted to engage in an industry

that is heavily regulated. Certainly, we would not expect Petitioner or any other

entity in this particular industry to maintain 100% compliance at all times during

their respective operations, but the fact remains that Petitioner received notice of its

violations, many of which continued from a previous inspection, and its submitted

plans of correction were rejected by the Department on three separate occasions.

Accordingly, the order of the Bureau must be affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

24

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lil Shining Stars, Inc., :

Petitioner :

: No. 693 C.D. 2015

v. :

:

Department of Human Services, :

Respondent :

ORDER

AND NOW, this 8th day of June, 2016, the order of the Chief

Administrative Law Judge for the Department of Human Services, Bureau of

Hearings and Appeals, dated March 31, 2015, is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge