Opinion
No. 484 C.D. 2014
12-30-2014
Verna Aggie, The Preschool Academy, Inc., Petitioner v. Department of Public Welfare, Office of Child Development and Early Learning, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Verna Aggie d/b/a The Preschool Academy, Inc. (Petitioner) petitions for review of an order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (DPW) adopting the recommendation of an Administrative Law Judge (ALJ) and upholding DPW's refusal to renew Petitioner's certificate of compliance to operate a day care facility under the Public Welfare Code. We affirm.
Subsequent to the filing of the instant appeal, the Department of Public Welfare changed its name to the Department of Human Services. See Act of June 13, 1967, P.L. 31, amended by Act of September 24, 2014, P.L. ___, 62 P.S. § 103 (effective November 24, 2014).
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§ 101-1503.
Petitioner was the owner and operator of The Preschool Academy, Inc. (TPA), located at 150 Hampden Road, Upper Darby, Pennsylvania, and held a certificate of compliance from DPW to operate TPA as a "child day care center" during the events relevant to this appeal. (Adjudication, F.F. ¶1.) A child day care center is defined in the Public Welfare Code as "any premises operated for profit in which child day care is provided simultaneously for seven or more children who are not relatives of the operator, except such centers operated under social service auspices." Section 1001 of the Public Welfare Code, 62 P.S. § 1001. A certificate of compliance must be renewed on an annual basis. Section 1009 of the Public Welfare Code, 62 P.S. § 1009.
On October 2, 2012, a child under TPA's care left the facility without supervision and was not discovered to be missing until the child's parent arrived to pick him up. (Adjudication, F.F. ¶2.) The child was located unharmed nearby a short while later and returned to his parent. (Id.) DPW received a complaint regarding this incident and, on December 19, 2012, Gwendolyn Brown, a Certification Representative in the Office of Child Development and Early Learning at DPW, visited TPA to investigate. (Id. F.F. ¶3.)
Brown visited TPA again on January 28, 2013 after DPW received a complaint that a child had bitten another child at TPA on January 11, 2013. (Id. F.F. ¶4.) During that visit, Brown spoke with the two TPA staff members who were present when the biting incident had allegedly occurred. (Id. F.F. ¶4(c), Analysis and Conclusion at 8.) Brown also performed an unannounced monitoring inspection at TPA on February 25, 2013. (Id. F.F. ¶5.)
By letter dated April 19, 2013, DPW notified Petitioner that it was refusing to renew her certificate of compliance to operate TPA based on the investigations relating to the missing child and biting incidents and other observed infractions during Brown's inspection visits. (Reproduced Record (R.R.) at 86a-88a.) DPW based its decision on Petitioner's failure to comply with DPW regulations and gross incompetence, negligence or misconduct in operating TPA. Section 1026(b)(1), (4) of the Public Welfare Code, 62 P.S. § 1026(b)(1), (4).
Petitioner appealed the refusal to renew and a hearing was held before an ALJ on August 27, 2013. At the hearing, Brown testified that she spoke with Petitioner during the December 19, 2012 visit and that Petitioner admitted that TPA was not aware that the child was missing until the parent arrived to pick the child up and that a staff person should have been watching the child when he left the facility. (Hearing Transcript (H.T.) at 12, 14-15, 18, R.R. at 145a, 147a-148a, 151a.) DPW submitted into evidence three documents related to the missing child incident: a police report from the Upper Darby Police Department, which explained that a parent of another TPA child found the missing child in the parking lot of an auto parts store and called 911; a letter from Petitioner to the parents of the child apologizing for the incident and stating that the responsible staff member was immediately terminated; and a memorandum from Petitioner to Brown providing a detailed account of the incident. (H.T. at 15-21, DPW Exs. C-2, C-3, C-4, R.R. at 148a-154a, 109a-119a.)
Brown further testified that during her January 28, 2013 visit to TPA she spoke to the two staff members who were present when the reported biting incident occurred on January 11, 2013; Brown testified that one of the staff members told her that she was changing a diaper and had her back to the child who bit another child and the other staff member told her that she was with a group of children in another area and also had her back to the biting incident. (H.T. at 25- 26, 33, R.R. at 158a-159a, 166a.) Brown stated that she asked Petitioner for a copy of the report for the biting incident and that Petitioner could not produce a copy of the incident report from TPA's file, and Petitioner told Brown that she had given the incident report to the parents of the child who was bitten the day following the incident. (H.T. at 27-28, R.R. at 160a-161a.)
Brown testified that on January 28, 2013 she observed a child sitting alone in the main hallway of the TPA facility with no staff member in sight and when she asked Petitioner why the child was sitting by herself, Petitioner said that she believed the child was waiting for breakfast to be served. (H.T. at 24, R.R. at 157a.) Finally, Brown testified that during the February 25, 2013 monitoring inspection at TPA she observed a staff member serving a group of children breakfast without first insuring that the children's hands were washed. (H.T. at 30, R.R. at 163a.)
Petitioner appeared pro se at the hearing and gave testimony, but she did not otherwise present evidence. Petitioner testified that after the missing child was found she immediately called the staff member back to work for an explanation as to why the staff member had left the child unattended and that she had terminated the staff member on the spot. (H.T. at 45, R.R. at 178a.) Petitioner testified that there were two staff members in the room when the biting incident occurred and the staff-to-child ratio was appropriate, but one of the staff was changing a diaper when the bite occurred. (H.T. at 46, R.R. at 179a.) Petitioner stated that the report for the biting incident was prepared and ready for the parent, but the parent neglected to take the incident report and did not get it until the next day. (H.T. at 47, R.R. at 180a.) Petitioner further testified that the child who was observed alone in the hallway by Brown had been left there by her older brother without checking the child in to her class room. (H.T. at 45, R.R. at 178a.)
Petitioner described various corrective actions that had been taken addressing each of the issues cited by DPW, including improved training, the hiring of a compliance director, rearranging the diaper station in the room of the biting incident to allow for full view of the room, the installation of 24-hour cameras, and policy changes relating to supervision, hand-washing and parents signing their children in and out. (H.T. at 45-52, R.R. at 178a-185a.) Petitioner argued that based on this corrective action she should be given a second chance and receive a provisional certificate of compliance. (H.T. at 49-52, R.R. at 182a-185a.)
Following the hearing, the ALJ issued a proposed adjudication denying Petitioner's appeal of DPW's refusal to renew her certificate of compliance. In denying the appeal, the ALJ found five violations of DPW regulations. Three of the violations were of 55 Pa. Code § 3270.113(a), which requires that "[c]hildren on the facility premises and on facility excursions off the premises shall be supervised by a staff person at all times." These three violations related to TPA's failure to supervise the child who went missing on October 2, 2012, failure to supervise the child who bit another child on January 11, 2013, and failure to supervise the child who was observed sitting unattended in a hallway on January 28, 2013. (Adjudication, Analysis and Conclusion at 7-8.) One of the violations was of 55 Pa. Code § 3270.182(7), which requires that reports of accidents, injuries and illnesses involving a child at the facility must be presented to a parent on the day of the incident and that the facility must retain one copy of the incident report in the child's file and another copy in an incident file; the ALJ found that TPA violated this regulation by not providing a report of the biting incident to the child's parent on the day of the incident and failing to maintain copies of the report on file. (Adjudication, Analysis and Conclusion at 8.) Finally, the ALJ found a violation of 55 Pa. Code § 3270.134(a), which requires that staff ensure that children's hands are washed before meals and snacks and after using the bathroom or having their diapers changed, based on Brown's observations on February 25, 2013 of a staff member who did not have a group of children wash their hands before eating breakfast. (Adjudication, Analysis and Conclusion at 9.)
The ALJ also found that DPW had failed to prove five other violations cited in the notice of non-renewal. (Adjudication, Analysis and Conclusion at 7-9.)
The ALJ's recommended adjudication was adopted by the Chief ALJ of the Bureau in its entirety by a February 24, 2014 order. Petitioner thereafter timely petitioned this Court for review of the Chief ALJ's order.
On March 27, 2014, DPW notified Petitioner that, because Petitioner did not seek reconsideration of the February 24, 2014 order, DPW viewed that order as final and directed Petitioner to cease operations at TPA by April 7, 2014. On application by Petitioner, this Court stayed DPW from requiring TPA to cease operations pending disposition of the appeal.
On appeal, our scope of review of a final order of DPW is limited to determining whether an error of law was committed, whether constitutional rights were violated and whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Altagracia De Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353, 356 n.3 (Pa. Cmwlth. 2007). Petitioner first argues that the ALJ's findings were not supported by substantial, competent evidence. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1387 (Pa. 1985) (citation omitted).
Based upon the record certified to us on appeal, we must conclude that the findings of fact underlying the ALJ's conclusions are supported by substantial evidence. Brown testified that she personally witnessed two of the violations, relating to the January 28, 2013 incident when a child was left sitting alone in the main hallway of the TPA facility and the failure of staff to have children wash their hands before a meal on February 25, 2013. Brown further testified that she spoke to the two TPA staff members who were present when the biting incident occurred and these staff members stated that they had their backs turned to the children or were not in the area where the biting occurred. Brown also testified that Petitioner was unable to produce an incident report related to the biting incident and Petitioner told Brown during her visit that she failed to give the incident report to the parents until the next day. Petitioner's own testimony supports the findings related to the missing child incident and it being attributed to the negligence of TPA staff, and documents admitted into evidence - the police report, Petitioner's memorandum to Brown and Petitioner's letter to the child's parents - confirm this account. Furthermore, while we do not believe that Petitioner's conduct rose to the level of gross incompetence or misconduct, we conclude that there was substantial evidence for the finding of negligence based upon the number of violations over a short period and the seriousness of the violations, particularly with respect to the October 2, 2012 missing child incident.
Petitioner contends that the ALJ ignored evidence that TPA staff were properly supervising the children when the biting incident occurred, that the child who was observed sitting alone in the main hallway of the facility was placed there by her older brother, and that the incident report for the biting incident was provided to the parent's child the next day because the parent forgot to take the report on the day of the incident. In support of these arguments, Petitioner cites affidavits from the TPA staff members who were present when the biting incident occurred and an affidavit from the parent of the child who was left alone in TPA's main hallway. (See Plaintiff's Br. Exhibits D, F.) While the accounts contained in these affidavits could have been persuasive if presented to the ALJ, these documents were not made part of the record below and we may not consider them now. See Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009) ("This Court may not consider any evidence that is not part of the certified record on appeal."). Moreover, regardless of whether evidence presented at the hearing would have supported an alternate outcome more favorable to Petitioner, our review of the evidence on appeal is solely confined to determining whether the findings made by the fact-finder below are supported by substantial evidence. Williams v. Workers' Compensation Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004). As stated above, we conclude that these findings are supported by Brown's testimony.
Even if we did accept Petitioner's testimony that she attempted to provide the incident report to the parent of the child who was bitten on the day of the incident, the violation of 55 Pa. Code § 3270.182(7) would have been well-founded because this provision also requires that copies of the report be maintained in an accident file and in the child's file. Petitioner did not refute Brown's testimony that Petitioner was unable to produce a copy of the report from TPA's files.
Petitioner further argues that the ALJ's findings were based upon several purported misrepresentations during Brown's testimony that called into question her reliability as a witness. Specifically, Petitioner asserts that Brown misrepresented the amount of time that Petitioner had held a certificate of compliance to run a child day care center. When asked "do you know when [Petitioner] first received her certificate of compliance?", Brown responded "I believe it was in February of 2012" and that TPA "was a new facility." (H.T. at 31, R.R. at 164a.) Petitioner contends that in fact she had held a certificate for over 17 years. DPW argues that the date when Petitioner first obtained a license is outside the record, and regardless of Petitioner's previous business, Brown's testimony was accurate because TPA had moved to a new location in February 2012 and DPW regulations provide that a certificate of compliance is issued for a specific facility and becomes void if there is a change in location, name or ownership of the legal entity. 55 Pa. Code § 20.57.
We must state that Brown's representation that Petitioner had only held a certificate since 2012 and was operating a "new facility" rests upon such a hyper-technical interpretation of the facts that it borders on the disingenuous. While it is true that the regulations say that the certificate was issued only for a specific facility, it is specious for the Department to not inform the ALJ that Petitioner had held a certificate for over 17 years in various facilities operated by Petitioner and that there was no record introduced of Petitioner having accrued any other major violation during this period of time. However, despite the fact the ALJ may not have had the benefit of the complete history of Petitioner's career as a licensed day care operator, we cannot say that the omission of this fact undermined the process such that it requires reversal. DPW requires that licensed facilities comply with its regulations and the amount of time that a facility is licensed is not a relevant factor in this determination. Nor can we say that the ALJ was remiss in not asking how long Petitioner had held a certificate. The responsibility of the ALJ was limited to determining whether DPW had proved the violations. Moreover, Petitioner had every opportunity to correct any misapprehension by objecting to Brown's testimony or stating in her own testimony how long she had been in business prior to the events at issue here. Her failure to do so before the ALJ cannot be rectified by this Court on appeal.
Petitioner also argues that Brown misrepresented the seriousness of the biting incident on January 11, 2013. While Brown did testify that DPW received a complaint that a child "was severely bitten at the facility," (H.T. at 25-26, R.R. at 158a-159a), the ALJ did not make a finding that the bite was severe nor were the regulatory violations relating to this incident related to the severity of the bite. Rather, the violations concerned the adequacy of supervision during the incident and whether an incident report was provided to the child's parents and properly maintained in TPA's file. Brown's testimony regarding the conversations with TPA staff demonstrates inadequate supervision by TPA staff and a failure to provide a report of the biting incident to the child's parents and to keep a copy of that report in TPA's files.
Petitioner next argues that DPW regulations have enforced an unreasonable supervision standard, citing this Court's decision in Gibbs v. Department of Public Welfare, 947 A.2d 233 (Pa. Cmwlth. 2008). In Gibbs, the owner of a family day care home with four to six children left the children in her yard under the care of her son, and the son negligently allowed the child to wander across the road onto a neighbor's property. Id. at 234-35. We rejected the conclusion that the children were without supervision as the owner had not simply walked away but entrusted the supervision to her adult son, who was an employee. Id. at 237. Furthermore, we found that there was no requirement of personal supervision by a licensee and that the owner was not grossly negligent simply by allowing her son to watch the children. Id. at 237-38.
DPW argues that Gibbs is distinguishable from the instant case because the child in Gibbs walked across a dead-end road and was in comparatively less danger, there was only one principal incident involved in Gibbs and the facility involved in Gibbs was a "family child care home" for between four and six children which is held to a less restrictive set of regulations. Furthermore, DPW contends that unlike in Gibbs, in the case of a child day care center, the applicant for a certificate of compliance must designate a "legal entity" that is "legally responsible for the administration and operation of a facility" and compliance with DPW regulations. 55 Pa. Code §§ 20.4, 20.11, 20.13. DPW cites to the definitions of supervision in its regulations as "critical oversight in which the supervisor can see, hear, direct and assess the activity of the" children under supervision. 55 Pa. Code § 3290.4. DPW also cites our decision in Altagracia, another case with similar facts to those here where a child walked away from a day care unattended and we found that this violation was by itself sufficient to revoke the license to operate the facility, 943 A.2d at 356-57, and our recent unreported decision in Lene's Daily Child Care II v. Department of Public Welfare, No. 1799 C.D. 2013, (Pa. Cmwlth. June 3, 2014), 2014 WL 2527538, in which we found that DPW was justified in revoking a certificate where an employee at a day care facility released a child to an unknown man without asking for identification or checking to see if that man was listed on the child's parental consent form.
We cannot agree with Petitioner's contention that DPW was required to prove that Petitioner herself knowingly participated in or acquiesced to the violations that DPW has levied against her as the owner of TPA. Cf. Miller Home, Inc. v. Department of Public Welfare, 556 A.2d 1, 4 (Pa. Cmwlth. 1989) (holding, in case involving DPW revocation of personal care home license, that there was no requirement that the legally responsible individual must have personal knowledge of violation). To apply such a rule would provide owners of licensed facilities with a blanket defense and discourage the close monitoring of the activities at such facilities. While Gibbs, Altagracia and Lene's offer us conflicting guidance, as a whole our precedent stands for the principle that these types of cases are very fact-dependent and we must not be overly rigid in our application of statutory and common law. Therefore, DPW, and the ALJ and courts reviewing these decisions, must look at each violation and the resulting punishment on a case-by-case basis. We believe that the ALJ conducted an appropriate review of the facts in this case. Furthermore, we must underscore that the absence of the child in the instant matter was for a greater time period than in Gibbs, and we further note that the child's absence was not discovered until the child's parent came to pick him up. Allowing a child to wander off in the urban high-crime area where TPA is located is totally distinguishable from Gibbs where the child merely crossed a dead-end, rural road into a neighbor's yard.
Petitioner next argues that DPW's actions violated her substantive and procedural due process rights under Article 1, Section 1 of the Pennsylvania Constitution and the Fourteenth Amendment of the U.S. Constitution. It is well established that the ability to pursue "any of the common occupations of life" is a protected property interest that the state may not infringe upon without being subject to the requirements of due process. Driscoll v. Corbett, 69 A.3d 197, 213 (Pa. 2013); Khan v. State Board of Auctioneer Examiners, 842 A.2d 936, 945-46 (Pa. 2004); Adler v. Montefiore Hospital Association of Western Pennsylvania, 311 A.2d 634, 640-41 (Pa. 1973).
While the ability to freely engage in one's occupation of choice is an important right, it is not a fundamental right and therefore courts apply the rational basis test to determine whether the provision at issue bears a rational relationship to a valid state objective. Driscoll, 69 A.3d at 214; Nixon v. Commonwealth, 839 A.2d 277, 288 (Pa. 2003); Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 21 (Pa. Cmwlth. 2012). In Pennsylvania, the rational basis test requires that a law "must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained." Nixon, 839 A.2d at 287 & n.15 (quoting Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954)); see also Khan, 842 A.2d at 946. Pursuant to this test, the General Assembly may not "[u]nder the guise of protecting the public interests...interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations." Khan, 842 A.2d at 946 (quoting Gambone, 101 A.2d at 637); see also Johnson, 59 A.3d at 21. "Nevertheless, the right to practice a chosen profession is subject to the lawful exercise of the power of the State to protect the public health, safety, welfare, and morals by promulgating laws and regulations that reasonably regulate occupations." Khan, 842 A.2d at 946; see also Gambone, 101 A.2d at 636-37.
There is no question that the purpose underlying the provisions of the Public Welfare Code and DPW regulations at issue here 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. Nonetheless, Petitioner contends that the punishment levied against Petitioner of taking away her license to operate a day care did not bear a real and substantial relationship to this valid state objective. Petitioner argues that, to comply with due process, DPW must consider the totality of the circumstances related to each violation, including the type of violation alleged and the threat to public safety, when deciding the appropriate sanction for a violation of its regulations. Petitioner allows that DPW has the right to revoke a license based on a violation where a child is endangered, but it must allow for corrective action where it only charges technical violations.
Here, the notice states that DPW allowed Petitioner to submit a plan of correction following the December 19, 2012 inspection, and that the plan was acceptable but that Petitioner failed to comply with the plan during the subsequent inspections. (R.R. at 87a.) However, DPW did not submit evidence at the hearing regarding Petitioner's alleged failure to comply with the plans of correction and the ALJ did not find that Petitioner had failed to comply with these plans. Therefore, we may not consider Petitioner's adherence to her submitted plan of correction as a basis for the decision to not renew her certificate of compliance.
Petitioner cites no authority for her distinction between technical violations and violations where a child is endangered. However, even if we agreed with Petitioner, we would still conclude that DPW was justified in refusing to renew her certificate of compliance here. The regulations that Petitioner was found to violate concerned supervision of children both inside and outside the facility, children's hygiene, and proper communication to parents regarding incidents at the day care; the purposes underlying these regulations clearly relate to the health and safety of children and violations of these regulations could very conceivably endanger the welfare of the affected children. The mere fact that none of the incidents at issue here resulted in an injury to a child does not absolve Petitioner from any responsibility for the lapses at her facility or lessen DPW's authority to bring charges for such violations.
Petitioner further argues that, pursuant to Section 1026 of the Public Welfare Code, 62 P.S. § 1026, which DPW relied on in refusing to renew Petitioner's certificate of compliance, DPW was required to give her an opportunity to submit a plan of correction and bring TPA into compliance with applicable regulations before refusing her application to renew her certificate of compliance. As Petitioner notes, a long line of decisions of this Court have held that DPW may revoke or refuse to renew a license based upon one violation of DPW regulations. See, e.g., Nancy Hadlock's Family Child Care Home v. Department of Public Welfare, ___ A.3d ___ (Pa. Cmwlth. No. 1990 C.D. 2013, filed Sept. 23, 2014), 2014 WL 4696194, at *5 (family child day care home); KC Equities v. Department of Public Welfare, 95 A.3d 918, 930 (Pa. Cmwlth. 2014) (child day care center); Gibbs, 947 A.2d at 237 n.9 (family child day care home); Altagracia, 943 A.2d at 356 (family child day care home); Arcurio v. Department of Public Welfare, 557 A.2d 1171, 1174 (Pa. Cmwlth. 1989) (personal care boarding home); Colonial Manor Personal Care Boarding Home v. Department of Public Welfare, 551 A.2d 347, 353 (Pa. Cmwlth. 1988) (personal care boarding home). Furthermore, we have held that though DPW has the discretion to order a facility to submit a plan of corrections, DPW is not required to consider corrective action before revoking or refusing to renew a license. See, e.g., KC Equities, 95 A.3d at 930 ("[W]hile laudable, subsequent corrective actions do not erase the fact that a licensee was in violation of regulations on the date of inspection."); Altagracia, 943 A.2d at 356; Aaron's Boarding Home v. Department of Public Welfare, 541 A.2d 63, 65 (Pa. Cmwlth. 1988).
Nevertheless, Petitioner argues that these cases are wrongly decided based upon a misreading of our decision of Pine Haven Residential Care Home v. Department of Public Welfare, 512 A.2d 59 (Pa. Cmwlth. 1986), and that what Pine Haven actually held was that one violation was sufficient to revoke in that case only because the licensee was given an opportunity to submit a plan of correction but failed to do so. We do not agree with Petitioner's narrow reading of Pine Haven. In that case, a DPW inspection of the petitioner's personal care boarding home revealed numerous violations of DPW regulations, including violations related to inadequate supervision, recordkeeping and facilities, and the boarding home was required to submit a plan of correction. 512 A.2d at 60-61. After the boarding home failed to submit a plan, DPW revoked the boarding home's license to operate. Id. at 60. We held that the boarding home's failure to submit a plan of correction was "sufficient, in itself, for revocation." Id. at 61. However, we also held that "[a]ny one" of the violations found by DPW "would be sufficient grounds for refusal to issue a license." Id. Therefore, Pine Haven stands for both the proposition that a facility's failure to submit a plan of correction is sufficient for the revocation of a license and that DPW may revoke a license for any one violation of DPW regulations.
Furthermore, the rule announced in Pine Haven and various other decisions of this Court that DPW may revoke or refuse to renew a license based upon one violation without consideration of any subsequent corrective action is consistent with the text of Section 1026. The relevant portions of Section 1026 provide:
(a) Whenever the department, upon inspection or investigation, shall learn of violation of this act or of regulations adopted by the department pursuant to this act, it shall give written notice thereof to the offending person. Such notice shall require the offending person to take action to bring the facility into compliance with this act or with the relevant regulations within a specified time.
(b) The department shall refuse to issue a license or shall revoke a license for any of the following reasons:
(1) Violation of or non-compliance with the provisions of this act or of regulations pursuant thereto; ...62 P.S. § 1026 (emphasis added).
(4) Gross incompetence, negligence or misconduct in operating the facility; ...
(c) Whenever the department revokes or refuses to issue a license, it shall give written notice thereof by certified mail. Such notice shall specify the reason for the refusal or revocation.
Our rules of statutory construction require that "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa. C.S. § 1921(a); see also 1 Pa. C.S. § 1922(2) (providing that in ascertaining legislative intent, courts should apply the presumption "[t]hat the General Assembly intends the entire statute to be effective and certain"). When the text of a statute is ambiguous, we may determine the intent of the General Assembly by considering, among other matters, the mischief to be remedied, the necessity and object of the statute and the consequences of any particular interpretation. 1 Pa. C.S. § 1921(c)(1), (3), (4), (6).
While, as we have previously recognized, subsection (a) and subsection (b) of Section 1026 "appear to be conflicting statutory mandates." Aaron's Boarding, 541 A.2d at 65 n.3; see also Miller, 556 A.2d at 3, on careful review we do not believe that these subsections are irreconcilable or that subsection (a) requires DPW to give licensees an opportunity to submit a plan of correction for any and all violations before seeking to revoke or not renew a license. While subsection (a) states that DPW shall provide notice to "require the offending person to take action to bring the facility into compliance with this act or with the relevant regulations within a specified time," 62 P.S. § 1026(a), this provision does not categorically state that DPW cannot revoke or refuse to renew a license in the interim. To accept Petitioner's interpretation of Section 1026 we would be forced to read out of the statute the clear dictate that "[t]he department shall refuse to issue a license or shall revoke a license for....[v]iolation or non-compliance with the provisions of this act or of regulations pursuant thereto." 62 P.S. § 1026(b)(1). Instead, we interpret subsection (a) of Section 1026 as setting forth DPW's minimum responsibility to notify a licensee of each violation and require the licensee to bring the facility into compliance and subsection (b) as setting forth the grounds upon which DPW may take the more serious action of revoking or refusing to renew a license. Moreover, even if we were to accept Petitioner's argument, subsection (b) of Section 1026 provides other conditions which allow for the revocation or refusal to renew a license, including gross incompetence, negligence or misconduct in operating a facility. 62 P.S. § 1026(b)(4). As discussed above, the facts as found by the ALJ in the instant matter support the conclusion that Petitioner was negligent in operating TPA.
Even if we did consider these two provisions to be irreconcilable, subsection (b), appearing later in the statute, would prevail under Section 1934 of the Statutory Construction Act, which provides that "whenever, in the same statute, several clauses are irreconcilable, the clause last in order of date or position shall prevail." 1 Pa. C.S. § 1934. Section 1026 was passed in the initial enactment of the Public Welfare Code in 1967 and has not been amended. --------
Accordingly, we conclude that DPW's refusal to renew Petitioner's certificate of compliance did not violate her substantive due process rights to operate a day care facility. The restrictions imposed by DPW were not "unusual" or "unnecessary" and were designed for the legitimate purpose of "protect[ing] the public health, safety, welfare and morals." Khan, 842 A.2d at 946; Gambone, 101 A.2d at 636-37.
We also discern no violation of Petitioner's procedural due process rights. The basic elements of procedural due process are adequate notice, the opportunity to be heard and the chance to defend oneself before a fair and impartial tribunal. Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013); Fiore v. Board of Finance and Revenue, 633 A.2d 1111, 1114 (Pa. 1993). Here, Petitioner does not specify how her procedural due process rights were violated. Our review of the record reveals that Petitioner was provided with a thorough notice advising her of DPW's determination to not renew her certificate of compliance, the conduct and regulations which formed the basis for this decision and her right to appeal. (R.R. at 86a-88a.) At the hearing, the ALJ explained the procedure and provided Petitioner with an opportunity to testify, present evidence, cross-examine DPW witnesses and argue her case. (H.T. at 6, 32, 41-44, 48-49, R.R. at 139a, 165a, 174a-177a, 181a-182a.) While Petitioner appeared without an attorney at the hearing below, this was her choice to make, and by doing so she assumed the risk that her lack of expertise and legal training would be her undoing. Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081, 1086 (Pa. 1985); Arena Beverage Corp. v. Pennsylvania Liquor Control Board, 97 A.3d 444, 452 (Pa. Cmwlth. 2014).
Finally, Petitioner argues that DPW's refusal to renew her certificate of compliance violates public policy in favor of providing accessibility to child care to the families of the Commonwealth. Petitioner asserts that she has invested over 17 years into running her business and to allow DPW to take away her license where she has already taken corrective action in response to each of the violations would have a chilling effect on other day care owners. DPW argues that to allow Petitioner to escape punishment based on a public policy rationale would be contrary to the public policy inherent in the licensing provisions in the Public Welfare Code to protect the health, safety and welfare of the citizenry of the more vulnerable citizens of the Commonwealth and would create a dangerous precedent by absolving child care operators of responsibility for their failings. The analysis Petitioner asks us to undertake here of weighing the competing public policies regarding whether TPA should be forced to shut down or allowed to remain open is patently beyond our scope of review, which is confined to a review for errors of law, violations of constitutional rights and the adequacy of the evidence. 2 Pa. C.S. § 704; Altagracia, 943 A.2d at 356 n.3. A reviewing court may not inquire into the wisdom of an administrative agency's actions in the absence of bad faith, fraud, capricious action or an abuse of power. Khan, 842 A.2d at 944-45. We detect none of those circumstances here.
Because the ALJ's adjudication was supported by substantial evidence, was free of errors of law and did not violate Petitioner's constitutional rights, we affirm the order of the Chief ALJ upholding the refusal to renew Petitioner's certificate of compliance.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 30th day of December, 2014, the order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals of the Department of Public Welfare in the above-captioned case is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge