STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 DHR 1746
LATIVIA L. GIBBS
Petitioner,
v.
N.C. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, DIVISION
OF CHILD DEVELOPMENT
Respondent.
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DECISION
BACKGROUND
This matter was heard before Donald L. Smith, Temporary Administrative Law Judge, on
May 5 and 6, 2004, in Charlotte, North Carolina. Following the hearing, the undersigned
requested Counsel to file Proposed Decisions. The undersigned also directed Counsel to address
certain issues, either in the Proposed Decisions or in written arguments. The record closed upon
receipt of the Proposed Decisions and written arguments on July 15, 2004.
APPEARANCES
For Petitioner:
For Respondent:
Ellis M. Bragg
Attorney at Law
500 East Morehead Street
Suite 210
Charlotte, NC 28202
Ann B. Wall
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27699-0629
APPLICABLE STATUTES AND RULES1
N.C.G.S. §§110-88, 110-90(5), 110-91, 110-94, 110-98, 110-99(a), 110-102.2, 110-105;
N.C.G.S. §150B; 10A NCAC 9 .0201, .0302, .0304, .0601, .0704, .0705, .0801, .0803, .1904,
.2206, .2820.
ISSUES
Whether the Division of Child Development acted erroneously, arbitrarily or
capriciously, or failed to use proper procedure, or to act as required by rule or law or exceeded its
jurisdiction, when it revoked the Petitioner’s One Star license to operate a child care center based
on falsification of information regarding two annual fire inspection reports, information
regarding education and training, and violations of child care requirements?
EXHIBITS
Respondent’s Exhibits 1 through 18 were admitted in evidence. Petitioner’s Exhibits 9,
10, 61, 63, 67, 71, 73, 74 were admitted in evidence. As noted in the transcript of the hearing in
this matter, certain of the exhibits were admitted subject to limitation.
1
The numbering of all Division of Child Development rules changed effective August 1,
2003, due to recodification by the North Carolina Department of Health and Human Services
pursuant to G.S. §150B. The Division’s rules are now found in Title 10A at Chapter 09. The
recodified rule number will be used throughout these Findings and Conclusions of Law.
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FINDINGS OF FACT
Based on the exhibits admitted in evidence, the sworn testimony of the witnesses, and
observation of the witnesses while testifying, and giving due regard to the demonstrated
knowledge and expertise of the agency with respect to facts and inferences within its specialized
knowledge, the undersigned makes, by at least a preponderance of the evidence, the following
findings:
The Petitioner
1.
Petitioner Lativia L. Gibbs is the owner and operator of Rainbow Day Care
(hereafter, “Rainbow” or “the center”), a child care center, ID # 6055627, initially licensed by
the State of North Carolina on August 9, 1989. Rainbow is located in Charlotte, North Carolina.
(Order on Final Pre-trial Conference, Schedule A, No. 1)
2.
Lativia L. Gibbs was the administrator of Rainbow at all times relevant to this
matter. (Order on Final Pre-trial Conference, Schedule A, No. 2)
3.
At all times relevant to this matter, Rainbow had a One Star License, indicating
that it met minimum requirements of the State of North Carolina to operate a child care center.
(R Ex. 13: Deposition p. 69, line 8 - 13)
The Respondent
4.
Respondent, North Carolina Department of Health and Human Services, Division
of Child Development, (hereafter referred to as “the Division”) is an administrative agency of the
North Carolina State Government operating under the laws of North Carolina. (Order on Final
Pre-trial Conference, Schedule A, No. 3 and 4)
5.
The Division’s responsibilities include licensure of approximately 9,100 child
care facilities, including 4,100 childcare centers, monitoring the facilities for maintenance of
compliance with child care requirements, and evaluating the qualifications of child care
providers. (Order on Final Pre-trial Conference, Schedule A, No. 4; Transcript (“T”), p. 94, lines
5 - 8)
6.
Respondent has been recognized for the quality and expertise of its work by
outside agencies, including receiving the 1999 Innovations in American Government Award, and
2004 Finalist for Innovations in American Government Award. (T pp. 82, line 19 - 83, line 3;
7.
Respondent has demonstrated knowledge and expertise with respect to facts and
inferences within its specialized area of knowledge, i.e., child care and enforcement of the laws
and rules of North Carolina governing the operation of child care facilities.
Falsified Fire Inspections
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8.
Each year the Division sends annual fire inspection forms to childcare centers. (T
p. 105, lines 22 - 24; R Ex. 13: Deposition p. 44, lines 2 - 15)
9.
A childcare center is required to initiate its annual fire inspection by calling the
local fire department to arrange for the inspection, and then forward the completed original fire
inspection report to the Division within one week. (10A NCAC 09.0304(a); T p. 105, lines 21 24)
10.
A regular fire inspection of Rainbow was conducted by the Charlotte Fire
Department on August 16, 2000. (T p. 45, lines 8 - 19)
11.
In December 2001, when Rainbow appeared on City of Charlotte Fire Department
Inspector Steven Guthrie’s list of facilities overdue for inspection, he called Petitioner, who told
him no inspection was needed. (T pp. 44, line 1 - 45, line 2)
12.
On June 5, 2002, Dana Stikeleather, one of Respondent’s childcare consultants,
conducted an unannounced annual compliance visit to Rainbow. ( R Ex. 13: Deposition pp. 14,
line 8 - 15, line 6, Deposition Ex. 3)
13.
During her June 2002 annual compliance-monitoring visit, Ms. Stikeleather cited
a number of violations, including the lack of required fire drill records for three of the preceding
eight months. ( R Ex. 13: Deposition pp. 17, line 15 - 18, line 6, Deposition Ex. 3)
14.
Ms. Stikeleather also noted the lack of a 2001 fire inspection and instructed
Petitioner to remedy the matter by obtaining a fire inspection and sending Ms. Stikeleather the
inspection report. ( R Ex. 13: Deposition p. 21, lines 9 - 23, Deposition Ex. 3)
15.
On October 16, 2002, Ms. Stikeleather received the Petitioner’s four-month late
correction letter, along with a copy of a fire inspection report dated August 20, 2002. ( R Ex. 13:
Deposition p. 24, lines 3 - 5, 20 - 22, 25 - p. 25, lines 1, 12 - 19, Deposition Ex. 6, 8)
16.
Ms. Stikeleather called Petitioner and requested the original fire inspection report
for the August 20, 2002 inspection. (R Ex. 13: Deposition p. 25, lines 5 - 6, Deposition Ex. 6)
17.
Instead of the requested original report, Petitioner sent Ms. Stikeleather a yellow
carbon of a fire inspection report form, which was dated August 16, 2002. (R Ex. 13: Deposition
pp. 26, lines 1 - 4, 27, lines 11 - 20, Deposition Ex. 6)
18.
Ms. Stikeleather never received an original August 2002 inspection report from
Petitioner. (R Ex. 13: Deposition p. 25, lines 22 - 23, Deposition Ex. 6)
19.
On reviewing the second fire inspection report, Ms. Stikeleather identified
discrepancies between it and the first report Petitioner had submitted:
A.
One report was dated August 20, 2002, while the other report was dated
August 16, 2002;
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B.
On the August 20, 2002 report, “approved for daytime care only” was
checked, but it was not checked on the August 16, 2002 report;
C.
On the August 20, 2002 report, the signature of Fire Inspector Steven
Guthrie was on the signature line, but on the August 16, 2002 report, the
signature was below said line;
D.
On the August 20, 2002 report, the zip code for the fire department was
28204, but on the August 16, 2002 report, the zip code was 28284.
(R Ex. 13: Deposition pp. 28, line 13 - 29, line 3, Deposition Ex. 6)
20.
Ms. Stikeleather spoke with Fire Inspector Steven Guthrie, who stated he had not
inspected Rainbow in 2002. (T pp. 40, line 13 - 41, line 10; R Ex. 13: Deposition p. 29, lines 7 11, 23 - 25, Deposition Ex. 8)
21.
Inspector Guthrie sent Ms. Stikeleather documentation from the Fire
Department’s records showing the lack of an inspection in 2001 and 2002. (T p. 45, lines 8 - 29;
R Ex. 6B; R Ex. 13: Deposition p. 30, lines 2 - 8, Deposition Ex. 8)
22.
Having concluded that the two fire inspection reports were falsified, Ms.
Stikeleather and her supervisor, Patsy Bumgarner, met with Petitioner at Rainbow on December
11, 2002, and were joined by Inspector Guthrie for a discussion of the two fire inspection
reports. (T pp. 245, lines 1 - 6, 247, lines 15 - 21; R Ex. 7; R Ex. 13: Deposition p. 33, lines 8 15, Deposition Ex. 9)
23.
Ms. Stikeleather and Ms. Bumgarner pointed out the discrepancies to Petitioner
and discussed the seriousness of falsification and possible consequences for Petitioner. (T pp.
245, line 21 - 247, line 12; R Ex. 13: Deposition p. 37, lines 9 - 143, Deposition Ex. 9)
24.
Inspector Guthrie told Petitioner he had not signed either form. (T p. 36, lines 23
- 25, p. 37, lines 4 - 8, p. 38, lines 2, 8 - 11; R Ex. 7)
25.
Petitioner denied she had falsified the forms, stated she had not been present on
the day of the August 2002 inspection, but insisted Rainbow had been inspected that day. (T pp.
245, line 22 - 246, line 17; R Ex. 13: Deposition pp. 34, line 6, 35, lines 7 - 9, 13 - 14,
Deposition Ex. 9)
26.
Petitioner could not tell Ms. Bumgarner and Ms. Stikeleather which staff
members had been present at Rainbow on the day of the alleged fire inspection. (T p. 246, lines
1-3, R Ex. 7)
27.
Petitioner told Ms. Stikeleather and Ms. Bumgarner that the two forms she sent to
Ms. Stikeleather were the only ones she had. (T pp. 245, line 22 - 246, line 17; R Ex. 13:
Deposition p. 36, lines 9 - 10, Deposition Ex. 9)
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28.
After Petitioner stated her canceled check would prove that the inspection had
been completed and paid for, she was asked to forward the original canceled check to Ms.
Stikeleather along with a current fire inspection. (T p. 246, lines 7 - 17; R Ex. 13: Deposition p.
37, lines 5 - 7, 23 - 25, Deposition Ex. 9)
29.
Instead of forwarding an original canceled check, Petitioner forwarded a copy of a
check register, a stop payment order and a statement that she had stopped payment on the check
because she learned that the check had not been cashed. Petitioner also forwarded a current fire
inspection report, performed by Inspector Guthrie on December 13, 2002. (T pp. 34, lines 14 19, 248, line 14 - 249, line 2; R Ex. 8C; R Ex. 13: Deposition pp. 38, line 19 - 39, line 1, 40,
lines 8 - 10, Deposition Ex. 10)
30.
Following Respondent’s policies, Ms. Stikeleather prepared Violation Correction
Documentation and sent it to Petitioner, notifying her that violations had been cited related to
lack of an annual fire inspection and to falsification. (T pp. 249, line 18 - 250, line 8; R Ex. 13:
Deposition pp. 41, line 3- 5, 42, lines 3 - 10, Deposition Ex. 11)
Other Violations and Falsified Education Information
31.
In addition to the missing fire drills and inspection, during her annual compliance
visit to Rainbow on June 5, 2002, Ms. Stikeleather cited the following violations:
A.
Failure to display the license in compliance with G.S. §110-99(a) (despite
technical assistance during a visit on May 2, 2002 regarding the placement of the
license), (R Ex. 13: Deposition pp. 12, line 17 - 13, line 4, 15, line 18 - 16, line 8,
Deposition Ex. 1 and 3).
B.
Failure to post a menu one week ahead, 10A NCAC 09.0901(b), (Ex. 13:
Deposition p. 16, lines 8 - 24, Deposition Ex. 3)
C.
Failure to keep indoor and outdoor equipment and furnishings in good
repair and usable, 10A NCAC 09.0601(a) and .0605(b). (R Ex. 13: Deposition p. 17, line
1 - 12, Deposition Ex. 3)
D.
Failure to provide a safe indoor and outdoor environment, including
having a piece of fence missing, thereby making a parking lot and the adjacent street
accessible by children, and having the missing, sharp-edged fence piece on the
playground, where a child was seen playing on it, 10A NCAC 09.0601(a). (R Ex. 13:
Deposition pp. 18, line 7 - 19, line 11, Deposition Ex. 3)
E.
Lack of a person certified in age-appropriate CPR, 10A NCAC
09.0705(d), R Ex. 13: Deposition pp. 19, line 12 - 20, line 5, Deposition Ex. 3)
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F.
Lack of notice on a child’s application of the person(s) to whom the child
could be released, 10A NCAC 09.0801(a), R Ex. 13: Deposition pp. 20, line 6 - 21, line
6, Deposition Ex. 3)
32.
A Staff and Training Worksheet completed by Ms. Stikeleather using information
from Petitioner and Rainbow files during the June 2002 annual compliance visit states the
following with regard to Petitioner’s education: “H.S. BA Elem. Ed”. (R Ex. 13: Deposition
pp. 19, lines 15 - 19, 44, line 18 - 45, line 3; Deposition Ex. 3)
33.
The information on the Staff and Training Worksheet was used to determine the
number of hours of continuing education in the form of in-service training which Petitioner was
required to complete each year. (T pp. 100, line 22 - 101, line 13)
34.
On February 10, 2003, Ms. Stikeleather received an “application” for a voluntary
rated license from Petitioner. (R Ex. 13, Deposition of Dana Stikeleather, Deposition Ex. 15,
approx. page 12 of 32 pages, email 2/10/03 from Patsy Bumgarner to Dana Stikeleather,
contained in a 12/12/03 email from Patsy Bumgarner to Ann Wall)
35.
On February 19, 2003, Ms. Stikeleather and Lead Childcare Consultant Robin
Stalvey went to Petitioner’s facility on a routine, unannounced visit. (T pp. 167, lines 1-2, 251,
lines 1 - 17; R Ex. 10; R Ex. 13: Deposition pp. 42, lines 19 - 22, 25 - p. 43, line 1, Deposition
Ex. 11)
36.
Petitioner was cited for having hazardous items accessible to children instead of
locked away, and for having medication for children without written parental permission to
administer it. (T pp. 169, line 1 - 16; R Ex. 10; R Ex. 13: Deposition pp. 43, line 9 - 44, line 14,
Deposition Ex. 11)
37.
Since Petitioner had initiated the process to obtain a voluntary rated license, a
review and discussion of staff education information was a part of the visit on February 19. (T p.
175, lines 11 - 25; R Ex. 10; R Ex. 13: Deposition pp. 47, line 10 - 15, Deposition Ex. 12,
Deposition Ex. 15, approx. p. 12, email 2/10/03 from Patsy Bumgarner to Dana Stikeleather,
contained in a 12/12/03 email from Patsy Bumgarner to Ann Wall)
38.
Following procedures for the type of visit, during the February 2003 visit a Staff
and Training Worksheet was completed using information provided by Petitioner. In this
instance the Worksheet showed the following regarding Petitioner’s education: B.S. 1985 EDU
112, Fall '01 BSAC 10/27/01 (T p. 174, lines 4 - 25; R Ex. 10; R Ex. 13: Deposition pp. 47, line
18 - 48, line 11, Deposition Ex. 11)
39.
During the February 2003 visit, Petitioner was cited for failing to obtain an Early
Childhood Administration Credential by September 1, 2000 in spite of notice of the requirement.
(G.S. §110-91(8); T pp. 170, line 17 - 173, line 6, 264, lines 16 - 25; R Ex. 10; R Ex. 13:
Deposition pp. 45, line 8 -46, line 17, Deposition Ex. 11)
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40.
Ms. Stikeleather called Petitioner when she did not receive a letter documenting
correction of the violations by March 5, 2003, including college transcripts and other
information. (R Ex. 13: Deposition pp. 48, line 12 - 50, line 1, Deposition Ex. 13)
41.
As a result of Ms. Stikeleather’s follow-up calls, Petitioner sent a correction letter,
and some, but not all, of the required information. (R Ex. 13: Deposition pp. 51, line 9 - 12, 52,
line 12 - 53, line 19, Deposition Ex. 13)
42.
On April 14, 2003, in a follow up call regarding Petitioner’s missing college
transcript, Ms. Gibbs stated she still had not received the official transcript for her four-year
degree from “Elizabeth City.”2 (R Ex. 13: Deposition p. 54, line 3 - 7, Deposition Ex. 13)
43.
Ms. Stikeleather never received the official transcript for Ms. Gibbs’ degree from
Elizabeth City State University, and, in following up with the University, learned that Ms. Gibbs
did not have a four-year degree. (T p. 270, lines 2 - 13; R Ex. 13: Deposition p. 54, line 8 - 24,
Deposition Ex. 13)
Respondent’s Administrative Action
44.
Following Respondent’s procedures, Ms. Stikeleather prepared an administrative
action which included all violations to date and submitted it to her supervisor for review. (T p.
291, lines 9 - 16; R Ex. 13: Deposition p. 64, line 1 - 18)
45.
The recommended action prepared by Ms. Stikeleather was reviewed and
approved by Ms. Bumgarner, Regional Manager Ila Teague, and an internal review panel
consisting of Respondent’s employees not directly involved in the action or the monitoring of
Petitioner’s facility. (T pp. 85, lines 2 - 11, 23 - 86, line 3, 87, lines 1 - 4, 270, lines 16 - 18; R Ex
3)
46.
A Notice of Proposed Administrative Action revoking Petitioner’s license was
sent to Petitioner, informing her of the opportunity to submit information indicating why the
action should not be taken or should be changed. (T p. 88, lines 7 - 18; R Ex. 2)
47.
Petitioner’s response to the proposed action was reviewed by Ms. Stikeleather and
Ms. Bumgarner, who then submitted comments on the response. (T pp. 90, line 18 - 91, lines 8,
13 - 25; R Ex. 3C, 3D)
48.
A second internal review panel considered the proposed action, Petitioner’s
response, and the comments submitted by Ms. Bumgarner and Ms. Stikeleather, and decided to
proceed with the revocation. (T pp. 88, line 24 - 89, line 17; R Ex. 1, 3)
Petitioner’s Defense
The Falsified Fire Inspection
2
Elizabeth City State University.
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49.
Petitioner did not testify.
50.
Petitioner’s nephew, Oscar Broome, then the Rainbow After School Program
Manager, testified that on August 26, 2002, Petitioner had not told him a fire inspector was
expected. (T pp. 200, lines 1 - 9, 209, lines 18 - 24, 210, lines 3 - 8)
51.
Mr. Broome testified as follows:
(a)
While Petitioner was away from Rainbow, a white car with an insignia on
the side arrived and about 5 minutes later, a black, bearded man in a blue uniform with a
gold badge knocked and said he was a fire inspector but showed no identification. (T p.
200, line 18 - 201, line 9, 211, lines 11 - 17; P Ex. 9)
(b)
Mr. Broome got the “fire folder” at the inspector’s request and returned to
the classroom to work. (T p. 201, lines 9 - 25, P Ex. 9)
(c)
After a period of time, the inspector returned, put the “fire folder” on the
desk and asked for a check to be made out to him in an amount of $300.00. (T pp. 202,
lines 7 - 16, 210, lines 11 - 25; P Ex. 9)
(d)
Suspicions were aroused because of the request that the check be made to
the inspector, Mr. Broome did not ask for identification, but phoned Petitioner. (T pp.
210, lines - 25; P Ex. 9)
(e)
Petitioner instructed Broome to write a check for $105.00 to the City of
Charlotte and give it to the inspector. (T pp. 202, lines 13 - 21, 212, line 10 - 213, line 4;
P Ex. 9)
(f)
Mr. Broome wrote a check as directed and gave it to the “inspector” who
took the check and left, saying nothing about the difference in amount or payee. (T pp.
202, lines 21 - 24; 211, line 22 - 212, line 6; P Ex. 9)
(g)
11; P Ex. 9)
The check was recorded in Petitioner’s check register. (T p. 203, lines 3 -
52.
Coreen Tolbert and Gazella Broome, the Rainbow infant and toddler teachers,
were on the playground with their classes on August 26, 2002, and had conversations with a
black man who identified himself as a fire inspector. (T pp. 220, line 1- 221, line 18; 227, line 1
- 228, line 5)
53.
Ms. Broome testified that she did not see the man inspect Rainbow but he was on
the playground talking with them for about 15 - 20 minutes before he went into the center. (T p.
229, lines 2- 4)
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54.
David Meyer, Petitioner’s accountant, testified that he reviewed a check register
which had an entry of a Rainbow check written to the City of Charlotte for a fire inspection. (T
p. 295, lines 5 - 8; P Ex. 10)
The Educational Credential Falsification and Other Violations
55.
Petitioner did not testify.
56.
Petitioner’s sole defense to the violations cited on June 5, 2002 was that the
violations were later corrected.
57.
During the February 2003 visit when cited for failing to obtain the Administrative
Credential which she should have had by September 2000, Petitioner showed Ms. Stikeleather
and Ms. Stalvey paperwork showing that she had completed the Administration I class in
December 2002 and was currently enrolled in the Administration II class. (T pp. 173, line 22 174, line 3; G.S. §110-91(8))
58.
Ms. Tolbert denied that she told the consultants that the Vaseline present in the
infant room was administered to children, and testified that she told the consultants it was hers
and for her personal use. (T pp. 215, lines 12 - 17, 219, lines 16 - 18)
59.
Ms. Bumgarner testified that Petitioner denied telling Respondent she had a
college degree. (T pp. 287, line 15 - 288, line 5)
Credibility
Respondent’s Witnesses
60.
Respondent’s employees:
Divisional employees Tammy Rhoney, Dana
Stikeleather, Robin Stalvey and Patsy Bumgarner demonstrated extensive knowledge, experience
and expertise relating to child care and regulation of child care in North Carolina. Their
testimony was detailed and is supported by comprehensive contemporaneous documentation.
Respondent’s witnesses did not attribute the actual, physical falsification of the falsified fire
inspection reports to Petitioner personally. They gave Petitioner multiple opportunities to submit
proof of correction of violations and to present her case, including follow-up calls and an inperson meetings. Petitioner did not deny any of the testimonial or documentary evidence from
Ms. Stikeleather regarding violations cited in visit summaries, deadlines set and not met, followup calls, etc. Respondent’s employee witnesses are found to be credible and their testimony
believable.
61.
Fire Inspector Steven Guthrie: Fire Inspector Steven Guthrie was a highly
credible witness, an experienced fireman and fire inspector who was careful and precise in his
testimony. Inspector Guthrie was authoritative with regard to the reasons it is important for
childcare fire inspections be done and that the correct day/night box be checked on a childcare
facility’s inspection form. Inspector Guthrie was adamant, convincing and believable when he
denied inspecting Rainbow in August 2002 and signing either of the August 2002 fire inspection
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forms. Inspector Guthrie was also persuasive in his explanation of the reasons the alleged fire
inspector could not have been a real fire inspector. Inspector Guthrie’s testimony is credible and
believable.
Petitioner’s Witnesses
62.
Sarnya Ervin: Sarnya Ervin is obviously a satisfied client of Rainbow who
believes in Petitioner. Ms. Ervin’s statement that Petitioner is truthful is suspect since she also
stated that her opinion of Petitioner’s truthfulness would not be affected if Petitioner lied to the
State about having a college degree. Ms. Ervin’s testimony is not credible or believable. (T p.
79, lines 3 - 6)
63.
Coreen Tolbert and Gazella Broome: Ms. Broome has a familial relationship
with Petitioner. Ms. Tolbert has had family members enrolled in Rainbow. Ms. Tolbert’s
assertion of the personal nature of the hazardous item violation cited in February 2003 is not
credible. Ms. Tolbert initially denied that she knew that the Vaseline should be kept under lock
and key but then admitted on cross-examination that she had been trained to do so. (T p. 223,
lines 17 - 25) Ms. Tolbert’s and Ms. Broome’s testimony is not credible or believable and each
is an interested witness.
64.
Oscar Broome: Oscar Broome’s testimony is implausible. It is noted that Mr.
Broome was not only an employee of the facility but is also the cousin of the Petitioner. He is
thus an interested witness. Broome’s testimony is not reasonable, credible or believable.
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over the parties and the
subject matter of this contested case pursuant to Chapters 110 and 150B of the North Carolina
General Statutes.
2.
All parties are correctly designated, and there is no question as to misjoinder or
nonjoinder and the notice of hearing was proper.
3.
As the licensed operator of Rainbow, a child care center, ID # 6055627, Petitioner
is subject to the provisions of Chapter 110 of the North Carolina General Statutes and rules
adopted pursuant thereto.
4.
The North Carolina Child Care Commission has authority, pursuant to N.C. Gen.
Stat. § 110-88 and 110-90 to adopt, and has adopted, rules relating to the enforcement of the
child care laws of North Carolina, including rules relating to inspection of child care facilities,
and to administrative actions such as the revocation of licenses.
5.
Respondent has the authority, pursuant to N.C. Gen. Stat. §§ 110-98 and 110102.2, to issue various types of administrative action against child care facilities for violations of
the Child Care Act, including revocation of licenses.
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6.
Respondent did not act erroneously, arbitrarily, capriciously, or fail to follow
proper procedures, law or rule or exceed its authority or jurisdiction when it held Petitioner
accountable, as owner and operator of Rainbow, for the submission of obviously falsified fire
inspection reports. Petitioner knew or should have known that the submissions were false.
7.
Respondent did not act erroneously, arbitrarily, capriciously, or fail to follow
proper procedures, law and rule or exceed its authority or jurisdiction, when it exercised its
knowledge and expertise in interpreting G.S. §110-91(14), G.S. §110-102.2 and other provisions
of the Child Care Act and North Carolina Administrative Code, to determine that falsification of
fire inspections and educational information, along with other violations, is cause to revoke a
childcare provider’s license.
8.
Respondent followed its established and proper procedures, acted as required by
rule and law and within its authority and jurisdiction throughout the process of monitoring
Petitioner’s facility, and did not act erroneously, arbitrarily or capriciously when it gave
Petitioner notice of the allegations and an opportunity to be heard, and went through multiple
levels of internal review prior to revoking Petitioner’s childcare license.
9.
Respondent’s citation of violations, including falsification of fire inspection
reports and educational information, and its revocation of Petitioner’s license are supported by
more than a preponderance of the evidence in the record, and are not erroneous.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned
makes the following:
DECISION
That the Respondent’s revocation of the Petitioner’s license to operate Rainbow Day
Care is supported by the preponderance of the evidence and is affirmed.
NOTICE
The agency that will make the final decision in this contested case is the North Carolina
Department of Health and Human Services, Division of Child Development. The agency is
required to give each party an opportunity to file exceptions to this recommended decision and to
present written arguments to those in the agency who will make the final decision. N.C. Gen.
Stat. § 150-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the
final decision on all parties and to furnish a copy to the parties' attorney of record and to the
Office of Administrative Hearings.
This the 23rd day of July, 2004.
__________________________________________
Donald L. Smith
Temporary Administrative Law Judge
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