St. Elizabeth's Child Care Center v. Deparment of Public Welfare

Justice SAYLOR,

dissenting.

The General Assembly has required licensing of many types of health and personal care facilities. See 62 P.S. §§ 1001-1002. However, as for child day care centers, it expressly limited the licensing requirement to “for profit” entities. See id. 1 While I agree with the majority that courts should exercise care in drawing negative implications from a statute, presently, a very clear one arises from the General Assembly’s textual precision in establishing such clear boundaries on the class of child day care centers subject to licensure.

Thus, the question arises whether the Department’s “certificate of compliance” requirement is tantamount to licensure, as *143 Appellee claims. See Brief of Appellee at 17. Testimony of Department officials supports Appellee’s contention. See R.R. at 431a (reflecting testimony from a Department official that, “I say ‘license’ — It is a certificate of compliance. I think we’re using them interchangeably.”); see also id. at 445a. This approach is consistent with the Department’s own regulations, which employ the certificate to accomplish licensure for entities subject to the statutory licensing requirement and extend the identical requirement to other organizations. Accord Brief for the Department at 11-12 (explaining that the Department’s regulations historically did not distinguish between for-profit and non-profit facilities, and that its regulations retain the requirement that all child day care centers obtain a certificate of compliance before commending operations). 2 Indeed, although the Department filed a reply brief, it does not refute Appellee’s assertion that the certificate of compliance functions as a license.

In light of the above, I believe the Department has established a licensing scheme which extends beyond express statutory boundaries. The Department relies on its implied powers to support its approach, explaining that it is required to supervise such centers and to order the correction of any condition which “in the opinion of the department is unlawful, unhygienic, or detrimental to the proper maintenance and discipline of such State or supervised institution or to the proper maintenance, custody, safety, and welfare of the ... persons being treated, detained or residing therein.” Brief for the Department at 12 (quoting 62 P.S. § 911(c) (emphasis deleted)). According to the Department, “It is difficult to imagine a broader grant of authority.” Id.

*144 In Commonwealth v. Beam, 567 Pa. 492 , 788 A.2d 357 (2002), we explained:

this Court has long adhered to the precept that the power and authority exercised by administrative agencies must be conferred by legislative language that is clear and unmistakable. At the same time, we recognize that the General Assembly has prescribed that legislative enactments are generally to be construed in such a manner as to effect their objects and promote justice, and, in assessing a statute, the courts are directed to consider the consequences of a particular interpretation, as well as other factors enumerated in the Statutory Construction Act. Based upon such considerations, the rule requiring express legislative delegation is tempered by the recognition that an administrative agency is invested with the implied authority necessary to the effectuation of its express mandates.

Id. at 495-96 , 788 A.2d at 359-60 (citations omitted). Thus, the Department’s implied powers are to be assessed against its enabling authority, which, again, establishes clear boundaries upon licensure. While the Department’s health and safety concerns are vitally important, it does not sufficiently explain why its employees cannot inspect facilities and supervise the correction of health-and-safety related deficiencies outside a scheme of regulation centered on licensure. 3 Moreover, in my view, the statutory boundaries upon licensure have a rational basis, as licensure may impact the costs of providing necessary child care services and may increase concerns of supervised entities regarding the possibility of governmental intervention in their curricula and/or ministries, as discussed by Appellee and its amici.

*145 Although I agree with the majority that the Department is to be accorded a fair amount of deference, and the longstanding tenure of the Department’s regulations is relevant, such factors are not insurmountable in the face of a clear legislative scheme. See, e.g., Insurance Federation of Pa. v. Commonwealth Dep’t of Ins., 585 Pa. 630 , 889 A.2d 550 (2005) (invalidating forty-year-old regulations of the Department of Insurance which required mandatory arbitration of underinsured and underinsured motorist coverage disputes). Here, I believe that the clear implication of the statute should control. I also do not believe that the decision in Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516 , 410 A.2d 731 (1980), is controlling, as that case concerned the extent of powers expressly invested in the Department and not bounded by the Legislature in the manner of the licensure requirement.

Finally, it is worth repeating that the Department has identified no health or safety concerns pertaining to the childcare services provided by Appellee.

For the above reasons, I believe the Commonwealth Court reached the correct result and would affirm its order.

Justice McCAFFERY joins this dissenting opinion.

. Section 1002 of the governing statute mandates, "No person shall maintain, operate or conduct any facility, as defined herein, without having a license therefore issued by the department.” 62 P.S. § 1002 (emphasis added). Section 1001 clarifies that the term "facility” includes a "child day care center,” defined as "any premises operated for profit in which child day care is provided ...” but not including those "supervised” by DPW. 62 P.S. § 1001 (emphasis added). There is no dispute in this case that Appellee's non-profit child day care center is a supervised entity, and thus, is not a "facility” subject to the statutory licensure requirement.

. The Department’s regulations define a certificate of compliance as: A document issued by the Department to a legal entity permitting the entity to operate a specific type of facility at a specific location for a specific period of time according to applicable Department regulations. A certificate of compliance approves the operation of a facility subject to Article IX of the act (62 P.S. §§ 901-922) or licenses the operation of a facility subject to Article X of the act (62 P.S. §§ 1001-1087).

55 Pa.Code § 3270.4 (emphasis added).

. The Department’s authority to visit and inspect supervised entities is expressly prescribed in the Public Welfare Code, as is its ability to seek enforcement via the Department of Justice (now the Office of Attorney General). See 62 P.S. §§ 911, 921(e). I believe that, pursuant to this authority, the Department could ensure the identification of entities subject to supervision by implementing a simple registration requirement, and certainly it could continue to maintain records of the results of its inspections and the compliance history of supervised entities.