File CV930704079 | Conn. Super. Ct. | Feb 16, 1994
The plaintiff appeals from the decision of the defendant commissioner of human resources (commissioner), revoking her family day care home registration. The commissioner acted pursuant to General Statutes §
The basis of the commissioner's action was his determination that the plaintiff had refused to consent to an unannounced home inspection by the department of human resources. The commissioner revoked the plaintiff's registration following a fair hearing conducted by a departmental hearing officer. The plaintiff appeared at the hearing, represented by counsel, and testified. Various other witnesses testified, including the department's investigator who had attempted to conduct the inspection.
The hearing officer found that, on March 2, 1992, the department investigator went to the plaintiff's home, where she conducted her day care business, for the purpose of conducting a spot inspection. The visit was during customary business hours. The hearing officer found that the plaintiff refused at that time to consent to the inspection; specifically, that the plaintiff refused to consent to the investigator's entry into the home. *225
The plaintiff advances two arguments as the bases of her appeal. First, she claims that the evidence in the record does not support the hearing officer's finding that she refused to consent to the inspection. Second, she claims that the applicable statutes and regulations that require a day care provider to consent to unannounced home inspections as a condition of continued licensure are facially unconstitutional.
Sections
"[Sec.
The provider and substitute shall consent and agree to allow the Commissioner or his authorized representative to have access and inspection privileges of the facility and day care records for the performance of home visits during customary business hours.
"[Sec.
The provider or substitute shall allow the Commissioner or his authorized representative access to the facility named on the registration, whenever the Commissioner or his authorized representative is attempting to perform home visits. If a provider does not consent to departmental access for the performance of a home visit, the Commissioner or his authorized representative will not gain access to the facility. However, failure of the provider to allow access to the facility for a home visit is deemed substantial noncompliance with this regulation and is an automatic ground for the Commissioner to initiate registration suspension or revocation proceedings.
"(b) Inspection of facility
The provider or substitute shall allow the Commissioner or his designated representative to inspect, upon demand, any part of the family day care facility during *226 the performance of a home visit. If a provider does not consent to departmental inspection of a part of the day care facility, the Commissioner or his authorized representative will not inspect that part of the facility. However, failure of the provider to allow a complete inspection may be grounds for the initiation of registration suspension or revocation proceedings.
* * *
"(e) Spot inspections
The Commissioner or his authorized representative shall make unannounced home visits, during customary business hours, to at least thirty-three and one-third (33 1/3%) percent of the registered family day care homes each year."
Evidence in the record in the present case reveals that a representative of the commissioner, departmental investigator Percy Boucher-Williamson, went to the plaintiff's family day care home, which was also the plaintiff's residence, at approximately 10:30 a.m. on March 2, 1992, to perform an unannounced spot visit and inspection. At that point, there is dispute as to what exactly transpired, or at least as to how what transpired should be interpreted. The evidence most favorable to the plaintiff is her own testimony at the administrative hearing: "And said I'm here to do a home visit . . . . I said . . . why do it? She said we're mandated by law. So I said to myself, well, I know they're mandated to do spot inspections, and then I asked her are you saying that you're here to do a spot inspection? And she said yes, do I have your permission to come in? And I said no. She said are you telling me that I can't come in? I said no. And she said well, you have to give me permission to come in. And I went to myself I don't think so."
At this point, the plaintiff testified, she opened her door and stepped back so as not to block the entrance *227 physically. Her testimony continued: "I pointed to the threshold and I said, there's the bright line that the constitution protects, and if you come across my threshold it's with the power of state law and the power of the regulation, and not by my permission."
There then ensured some further colloquy between the investigator and the plaintiff, during which the plaintiff said, in effect, the door is open, I can't stop you from coming in, but you do not have my permission.
The plaintiff claims that this evidence, which was not significantly disputed by the commissioner's witnesses, does not support the commissioner's finding that the plaintiff violated the cited regulations requiring a licensee's consent to unannounced spot inspections. This claim cannot be sustained.
Nothing in the regulations permits a department investigator to enter a facility without the permission of the day care provider. To the contrary, the plain words of subsections (a) and (b) of §
The open door was of no significance. The plaintiff's express and repeated denial of permission acted as an unbreachable bar to the investigator's entry to the home. To hold otherwise would be to ignore the plain words of the regulations requiring the investigator to retreat in the absence of permission to enter. These regulations do not allow a day care provider the option *228 of passive resistance; rather, they require positive acquiescence in the state inspection program, including voluntary consent to unannounced spot inspections.
On the basis of the evidence in the record, summarized earlier, the court holds that the hearing officer's finding that the plaintiff refused to consent to the required inspection was fully justified.
The plaintiff next mounts a wholesale attack on the constitutionality of the regulations in question. In this regard, she claims that the regulations "violate the fundamental constitutional right to privacy of the plaintiff under Article
It is well established that a challenge to a duly enacted statute on the basis that it is unconstitutional carries a heavy burden. Indeed, constitutional flaws must be proved beyond a reasonable doubt. State v. Floyd,
The plaintiff cites no Connecticut appellate authority to support her specific contention that the regulatory scheme for inspecting family home day care centers is unconstitutional. In essence, however, she seems to be claiming that the requirement that she consent to home inspections as a condition of maintaining her license is so coercive that it amounts to warrantless searches of her home. The court disagrees.
As stated by our Supreme Court in Amsel v. Brooks,
The regulations in question are designed to provide state officials immediate access to inspect private homes that have been licensed as places where other people's children are cared for in the absence of their parents. The state argues persuasively that "the tender years of the children, their dependence on the provider, the potential for abuse, and the easy concealment of common dangers found in a private residence" provide a rational basis for the requirement of spot inspections. To this list could be added, of course, the absence of parental supervision, which provides strong support for state supervision.
On the basis of the considerations outlined previously, the court cannot say that the regulations in question do not serve a rational purpose in protecting and preserving the public welfare, especially the welfare of children. The court concludes that the plaintiff has not met her burden of establishing that the regulations are unconstitutional beyond a reasonable doubt.
For all of the aforementioned reasons, the plaintiff's appeal is dismissed.