Opinion
No. CV05-4015582-S
August 10, 2006
MEMORANDUM OF DECISION
The Episcopal Church of St. Paul and St. James ("Church") has appealed from a decision of the Department of Public Health ("DPH") assessing a civil penalty on the Church's "Mustardseed Afternoon Club" ("Mustardseed") for failure to have a license as a "child day care center." The penalty was based on a DPH Hearing Officer's conclusion that Mustardseed was in fact a child day care center that was required to be licensed by DPH under General Statutes § 19a-77, which provides, in pertinent part:
(a) As used in Sections . . . 19a-80 "child day care services" shall include:
(1) A "child day care center" which offers or provides a program of supplementary care to more than twelve related or unrelated children outside their own homes on a regular basis;
. . .
(b) For registration and licensing requirement purposes, child day care services shall not include such services which are:
. . .
(3) Recreation operations such as but not limited to creative art studios for children that offer parent-child recreational programs and classes in music, dance, drama and art that are no longer than two hours in length, library programs, boys' and girls' clubs, church-related activities, scouting, camping or community-youth programs.
Following a duly scheduled hearing, the Hearing Officer ruled that Mustardseed met the definition of a child day care center and did not fit within any of the statutory exemptions from licensure.
DPH had initiated this contested case proceeding on July 14, 2004, by sending the Church a notice alleging that it was operating an illegal child care center in violation of General Statutes § 19a-80, and proposing to impose a penalty pursuant to General Statutes § 19a-87. The Church requested a hearing, which was held on October 20, 2004, before Donald Levenson. The Commissioner later delegated Levenson's responsibility to another Hearing Officer, Donna Brewer, who issued the respondent's "Final Decision" on August 31, 2005. Based on her conclusion that Mustardseed's "circle time for reading aloud, creative projects, weekly meetings for discussion . . . and occasional trips to museums or other places of interest are not primarily recreational activities for children," the Hearing Officer determined that the Church was required to have a license in order to operate Mustardseed in its then current form.
The Commissioner thereupon imposed a civil penalty of $3,500 on the Church, and this appeal, brought under General Statutes § 4-183, followed. Subsection (j) of § 4-183 provides that an appeal shall be sustained if the appellant is prejudiced by:
administrative findings, inferences, conclusions, or decisions [that] are (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
The Church argues that it is entitled to have its appeal sustained on all of these bases.
The court is of course mindful of the standard of review to be applied to decisions of administrative agencies. "Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq. (UAPA)] . . . and the scope of that review is very restricted . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . ." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37 (2001). "Even as to questions of law, the court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . ." (Citations omitted; internal quotation marks omitted.) Id. "[C]ases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Thus, we have determined . . . that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . ." (Citations omitted; internal quotation marks omitted.) Tele Tech of Conn. Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 788 (2004). In administrative proceedings, "if the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [agency's] discretion and cannot be successfully challenged unless the discretion has been abused." (Internal quotation marks omitted.) Pet v. Department of Health Services, 228 Conn. 651, 677 (1994).
In order to be entitled to review of the DPH decision, the Church must first establish that it is aggrieved by that decision. At the hearing before this court, the Church has established through the testimony of Rev. Harlon Dalton that it has been ordered to pay the State Department of Public Health a civil penalty in the amount of $3,500 and that it must alter the components of its Mustardseed program in order to be exempt from licensure as a "child day care center." Based on this testimony, the court finds that the Church is aggrieved by the agency's decision within the meaning of General Statutes § 4-183.
The Church contends that in this case the agency has acted unreasonably, arbitrarily, illegally and/or in abuse of its discretion, and that it is the duty of the Court to sustain the appeal. See, e.g., Church Homes, Inc. v. Administrator, Unemployment Compensation Act et al, 250 Conn. 297 (1999). It suggests that this is a case of first impression as to several legal issues: 1) the first judicial test of a DPH attempt to extend its jurisdiction over child day care centers to encompass an after school program; 2) the first judicial review of a penalty imposed in an administrative proceeding under General Statutes § 19a-87; 3) the first judicial construction of General Statutes § 19a-77(b)(3); and 4) the first review of an administrative order requiring a church to pay a penalty for offering too much secular education in its mission to community youth. It contends that the decision runs afoul of all six prongs of General Statutes § 4-183(j).
For the reasons that follow, the court agrees that the appeal must be sustained because the DPH has far too narrowly construed the meaning of "recreational operations" in the context of General Statutes § 19a-77(b)(3) and that its conclusion that Mustardseed is not exempt from licensure as a child day care center is clearly erroneous. The court need not, therefore, address all of the Church's contentions. Three preliminary considerations, however, merit the court's attention.
First, because the Church has argued that the DPH lacks what the Church calls "subject matter jurisdiction" to impose a penalty based on what the Church terms "a doubtful interpretation" of § 19a-77(b)(3), the Court feels obligated to address that claim. The court notes that the Church is not challenging the court's subject matter jurisdiction to hear the appeal, a position that would hardly be in the Church's interest at this point. Rather, the claim is that DPH's effort to regulate activities such as those of the Mustardseed program is beyond the scope of its statutorily described jurisdiction. Because the Church styled this claim as one based on "subject matter jurisdiction," however, the court does address it as a preliminary matter.
Indeed, it is true that the DPH may not extend its jurisdiction to regulate activity beyond the scope of its particular authorizing legislation, Nizzardo v. State Traffic Commission, 259 Conn. 131 (2002), and "is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed in the enabling legislation; Castro v. Viera, 207 Conn. 420, 427-8," quoted in Hall v. Gilbert and Bennett Mfg Co., 241 Conn. 282, 291 (1997). It is also true that agencies normally are guided by properly promulgated regulations. Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 484-5 (1982). The Church contends that while § 19a-79 gives DPH the statutory authority to act on applications for day care licenses, and to promulgate regulations articulating standards by which such licenses are issued, no statute grants DPH the authority to decide that a license is or is not required for a given program, and the existing regulations do not address the fundamental issues in this case.
The church argues that in faulting the plaintiff for failing to apply for a license to conduct activities for which the agency had not promulgated appropriate regulations, DPH has acted without jurisdiction. In particular, the Church contends that Connecticut's "day care" program regulations, Regs., Conn. State Agencies § 19a-79-1a et seq., do not attempt to define, limit or elaborate on the statutory exemptions from licensure. They neither set a minimum time to be considered "day care" nor, most critical to the resolution of this case, they do not define what is meant by "recreational operations."
In response, DPH argues that General Statutes § 19a-87(c) explicitly authorizes the Commissioner to impose a civil penalty against any person or entity maintaining or operating a child day care center without a license, a power already recognized, correctly in this court's view, by several superior court judges. See, State of Connecticut v. Dotson, Superior Court, judicial district of Hartford, Docket No. 000827 (November 30, 2004, Booth, J.) ( 38 Conn. L. Rptr. 392); Swales v. Connecticut Department of Public Health, Superior Court, judicial district of New Britain, Docket No. 498140 (December 18, 2000, Satter, J.T.R.); Kagan v. Harriman, supra, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 561903 (May 5, 1997, McWeeny J.) Pursuant to General Statutes § 19a-2, the Commissioner of Public Health is required to administer all laws under the jurisdiction of the Department of Public Health. The statutes governing day care licensing fall within the Department's jurisdiction. General Statutes § 19a-80 specifically authorizes the Department to require individuals and certain facilities to obtain a license in order to provide child day care services, and § 19a-77(b) specifies the statutory exemptions to the licensing statute. The duty and the power to license of necessity imply the duty and power to determine whether a statutory exemption is applicable in any particular case. Whether more precise definitions . . . or any definitions at all . . . would help the agency exercise its obligations is not the question before the court; clearly, they would (or at least, could, if well drafted). The question is whether DPH has the authority to interpret the statutes as they are written.
"Administrative agencies must necessarily interpret statutes which are made for their guidance, and they may do so without reference to regulations." Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 318-19 (1999); Eagle Hill Corp. v. Commission on Hospitals Health Care, 2 Conn.App. 68, 76 (1984). Where the legislature has used broad terms without definition, it evinces a judgment that the agency should define the parameters of the broad terms of the relevant statutes on a case by case basis. Cos Cob Volunteer Fire Co. No. 1 v. Freedom of Information Commission, 212 Conn. 100, 106 (1989); Wiese v. Freedom of Information Commission, 82 Conn.App. 604, 609 (2004).
Whether the agency has appropriately defined those parameters in this case is a matter to which the court will shortly direct its attention. The Church's claim that the DPH lacked subject matter jurisdiction even to determine the matter, however, is without merit.
Second, the Church argues that as an after school program, Mustardseed can not possibly be a "child day care center," which it views as traditionally a program for children who are not attending school. It cites The American Heritage Dictionary, which defines "day care" as the "providing of daytime supervision, training, medical services and the like, for children of preschool age or for the elderly (p. 338). While that definition may well reflect a commonly held view about child day care, however, it is not the way the concept is defined by our statutes. General Statutes § 19a-2 requires the Commissioner of Public Health to administer all laws under the jurisdiction of that Department, including those governing the licensing of child day care facilities under General Statutes § 19a-80. A "child day care center" is defined as a place which "offers or provides a program of supplementary care to more than twelve related or unrelated children outside their own homes on a regular basis." General Statutes § 19a-77(a)(1); Regs., Conn. State Agencies § 19a-79-1a(9). "Supplementary care" means "out-of-home care where an individual or organization takes responsibility for the child's activities" and is not limited to pre-schoolers. Regs., Conn. State Agencies § 19a-79-1a(58). Contrary to the Church's view, whether a program meets the statutory definition of a child day care center is not dependent upon the age of the children or the program's hours of operations.
Under § 19a-79-11(c) of the regulations, a child day care center is required to ensure that children in the program shall have opportunities to choose among a variety of activities, including but not necessarily limited to:
(A) free time,
(B) creative activities,
(C) opportunities for homework assignments,
(D) nutritional snacks,
(E) physical activities,
(F) quiet activities,
(G) small group activities,
(H) special events which may include field trips,
(I) self-concept activities.
All of these activities were included in descriptions of the program provided to the Hearing officer by Gretchen Pritchard, Mustardseed's Director, who stated: "The Mustardseed Afternoon Club is an after school program for children and families in New Haven, particularly emphasizing children at risk. We provide a safe structured environment for children. We provide snack[s] and activities including homework help and other forms of enrichment. But particularly we provide friendship and safety and positive discipline and hope and meaning for their lives."
The Church has provided no basis for the court to conclude that the Hearing Officer misapplied the law in any way in finding that Mustardseed was a "child day care center." Nor has the Church shown that it is incumbent upon DPH to go beyond the statute to demonstrate a particularized public health basis for requiring that Mustardseed be licensed as a child day care center.
Finally, it must be emphasized that although the Church seeks an exemption from licensure because Mustardseed is a "church-related" activity, the program has no religious connotation whatsoever. It is "church-related" only in that the Church feels that a part of its mission is to provide such recreational opportunities to young people in its area, and in that it is physically housed in the Church's building. There is no religious instruction, and many of the children who participate are not from families who are members of the Church. The DPH concedes that Mustardseed is church-related in the manner just described. This case, therefore, in no way implicates issues regarding the separation of church and state.
The principal issue in this case is whether Mustardseed is a church-related "recreational operation" and hence exempt from licensure by statute. For the reasons that follow, the court finds that the Hearing Officer's conclusion that Mustardseed was not exempt from licensure was clearly erroneous.
"Those who claim the benefit of an exception under a statute have the burden of proving that they come within the limited class for whose benefit it was established." Conservation Commission v. Price, 193 Conn. 414, 424 (1984). The Church contends that it has proved that Mustardseed does indeed provide a recreational operation for the children that it serves and is therefore exempt from licensure under General Statutes § 19a-77(3).
The court agrees with DPH that General Statutes § 19a-80, in requiring licensure of child day care centers, is remedial and not penal. It was enacted to promote the public welfare, and as such, should be liberally construed to effectuate its remedial purpose. Wallingford v. Dept. of Public Health, 262 Conn. 758 (2003); BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 621-22 (2001). Nevertheless, the evidence presented to the Hearing Officer establishes that Mustardseed is a recreational operation and is entitled to exemption from licensure.
The Hearing Officer concluded that whether licensure is required depends on "among other things, whether a program content is `recreational.'" (The Decision does not mention what those "other things" might be, so the court assumes that this was the only consideration the Hearing Officer applied to this case.) Although the Hearing Officer did not spell out her reasoning for this particular conclusion, what appears to be implicit in the Decision is the supposition that intellectual stimulation and what the Hearing Officer viewed as "recreation" are somehow mutually inconsistent. The Decision states that Mustardseed's "circle time for reading aloud, creative projects, weekly meetings for discussion . . . and occasional trips to museums or other places of interest . . . are not primarily recreational activities for children."
The Hearing Officer's Final Decision is a carefully written and articulate document. Nevertheless, one cannot escape the conclusion that she viewed the concept of recreation as activity in which the using of one's mind is not a significant component. In this benighted view, sports and games would quite clearly qualify, but reading, discussing, visiting museums and other activities of the mind apparently would not. Although neither the statutes nor regulations relating to child day care define recreation, however, other statutes, albeit for different purposes, do give some idea of what the legislature might have had in mind.
For example, an imperfect guide to what the legislature meant by the term "recreational operations" is found in General Statutes § 52-557f(4) which defines "recreational purpose" as including, but not being limited to: "any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archaeological, scenic or scientific sites." One would not expect children in the Mustardseed program to hunt or go hang gliding, of course, but the point is that "recreation" includes not only that which is fun, but also that which is interesting. In Scrapchansky v. Town of Plainfield, 226 Conn. 446, 457, 627 A.2d 1329 (1993), overruled on other grounds, Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242 (1996), the court explained that the "definition of `recreational purpose' in § 52-557f(4) . . . is simply a nonexclusive list of leisure activities. 226 Conn. at 456. A "recreational purpose" is a "leisure" activity that "is pleasant for its own sake . . ." Id. at 457. With the possible exception of Mustardseed's homework assistance, which the Hearing Officer did not cite as a deviation from a recreational purpose, all of the activities of the Mustardseed Program indisputably are and should be "pleasant for their own sake."
The several examples of "recreation operations" that are listed in § 19a-77(b)(3) (library programs, boys' and girls' clubs, church-related activities, scouting, camping and community-youth programs) are similar to each other in that they are designed to take place during a "recreational" (i.e., non-school) time of day and are provided by organizations the legislature has deemed appropriate to provide supplementary care for children without a license. All of them are likely to incorporate elements that could be correctly viewed as both "educational" in some sense as well as "recreational." It is inconceivable, for example, that any "library program," which, like church-based programs, are exempt from licensure under § 19a-77(c)(3) if they are recreational operations, could possibly exist without elements which this Hearing Officer would have found to be "educational." It is inconceivable that any library-based child day care center would be required, as a condition of maintaining its exemption, to restrict the children enrolled in it from reading books and discussing what they learned from them, without rendering the term "library program" an oxymoron. Unless the children in such a program were forbidden to look at the library's principal resources, its books, there is no way that such a program would not expose its charges to opportunities for learning and intellectual enrichment. Moreover, there would be no reason for the legislature to include library programs in the category of entities generally exempt from licensure if it did not recognize that their very raison d'etre, the provision of books and other "educational" materials was nonetheless totally consistent with the idea of a "recreational operation."
The hearing officer made a fundamental error in concluding that "in determining whether a program requires licensure, it is necessary to ascertain, among other things, whether a program is `recreational' or `educational.'" To help make her point, she cites General Statutes § 19-77(b)(5), the exemption for drop-in supplementary care operations for educational or recreational purposes when the child attends infrequently and the parents are on the premises, and the exemption in § 19a-77(b)(7), which exempts religious educational activities. From these examples, she draws the conclusion that the terms "educational" and "recreational" are mutually exclusive. They most certainly are not. The Church does not disagree with the Hearing Officer's conclusion that to be exempt, Mustardseed must be primarily recreational in nature. It does disagree, however, as does the court, that a program with components that might also be viewed as educational cannot still be primarily recreational in nature. The Decision makes clear that it is not "homework assistance" that the Hearing Officer felt crossed the line into the realm of education, but rather what are termed alternative academic projects for those with no homework, circle time with reading aloud, creative projects, weekly meetings for discussion, sharing and compliments, and occasional trips to museums or other places of interest. Interestingly, the Decision quotes with approval the American Heritage Dictionary definition of "recreation": "refreshment of one's mind or body after work through some activity that amuses or stimulates; play." It then appears to ignore a concept at the heart of the definition, "refreshment of one's mind . . . through some activity . . . that stimulates . . ." in favor of the concept of "play." There is no justification, however, for a conclusion that "alternative academic projects for those with no homework, circle time with reading aloud, creative projects, weekly meetings for discussion, sharing and compliments, and occasional trips to museums or other places of interest" are not stimulating activities that have the capacity to refresh the mind.
The Decision opines, in a footnote, that "story telling, movies, and puppet shows that would be considered forms of `amusement' or `play'" would qualify a program for exemption from licensure. There is no indication that the DPH has ever actually had to consider an exemption appeal on behalf of a library program, but is it truly the footnote's intent to suggest that a library program that skipped movies and puppet shows but included (gasp!) the reading of books would not be deemed recreational? Why would a movie qualify such a program for exemption, while a trip to a museum would not? The DPH's Decision has clearly chosen to ignore the more active elements of "mind" and "stimulation" in recreation and to emphasize instead its passive and playful elements. Perhaps it is this sad view of "recreation" that has led to so many reports of a distressing contemporary trend: children glued to televisions and computer games, rather than stimulating their minds by reading books, going to museums, and attending cultural events.
Cases in which courts have examined the interplay between recreation and education are hard to come by, but a New Jersey court has addressed the issue in the context of scouting, one of the examples of "recreational operations" used in our statute. Stoolman v. Camden County Council Boy Scouts, 77 N.J.Super. 129, 185 A.2d 436 (1962) involved a personal injury suit against the Boy Scouts. The defendant had moved for summary judgment on the basis of the statutory immunity of "nonprofit corporations organized for . . . educational . . . purposes" from suits in negligence brought by beneficiaries of such corporations. In opposition to summary judgment, the plaintiff had contended, inter alia, that the defendant's involvement in recreational activities precluded it from being viewed as a corporation ". . . organized for . . . educational . . . purposes." The court disagreed:
The term "educational" is generic and could include "recreational" even if the word "recreation" was not used in the defendant's constitution. Education is defined as "discipline of mind or character through study or instruction." Webster's New Collegiate Dictionary. Article II of defendant's Constitution supra, states that the purpose of education and recreation is for character development, citizenship training, and physical fitness. This discipline of character through instruction is fulfilled in part by the instruction and learning of the rules of games and activities supervised and promoted by the Boy Scout Council. Hence, in fulfilling one of its purposes, viz., physical fitness through recreation, the purpose of education is simultaneously fulfilled through the instruction and learning of the games which develop the character and citizenship of the individual boy scout along with his physical fitness. Hence, the term "educational" and "recreation" are not mutually exclusive but rather are overlapping.
Yet, while scouting's recreational aspects are well recognized, it is hard to see how one could possibly participate in, for example, the Boy Scouts, without that recreational activity's including elements which would also be viewed as educational. A glance, for example, at the Merit Badges now available through the Boy Scouts of America illustrates the point. Among the 120 or so current Merit Badge offerings are American Business, American Culture, American Heritage, American Labor, Animal Science, Archaeology, Architecture, Astronomy, Bird Study, Chemistry, Cinematography, Computers, Crime Prevention, Dentistry, Electricity, Electronics, Engineering, Entrepreneurship, Environmental Science, Fingerprinting, Geology, Insect Study, Mammal Study, Medicine, Nuclear Science, Oceanography, Plant Science, Reptile and Amphibian Study, Scholarship, Soil and Water Conservation, Space Exploration, Surveying, and Weather. See http://wwwscouting.org/factsheets/02-500.html. It goes without saying that one could not possibly engage in such a recreational operation without also participating in activities that are also undeniably educational.
This court concludes that the terms "education" and "recreation" are not mutually exclusive, and the DPH's failure to recognize that the two terms overlap is a fatal flaw in the reasoning underlying the Hearing Officer's Decision. One could understand the concern if Mustardseed subjected its charges to extensive periods of formalized teaching. Mustardseed, however, while it clearly includes opportunities for learning, does not involve any formal instruction at all. The only sensible way to read a requirement that recreational programs with educational components must be licensed is that to the extent that they involve significant periods of formal instruction, they cross the line from learning by exposure to stimuli such as art, books, dance, museums and the like and into the realm of pedagogy. At that point, it can fairly be said, a program is no longer "primarily" recreational, but rather has become an instructional or educational program.
A review of the activities of the Mustardseed program, as presented to the Hearing Officer, reveals nothing that exceeds the bounds of the recreational. Although time is set aside for homework, this was presented merely as an opportunity to do such work on one's own at the Church, rather than waiting until arriving home in the evening, and the alternative projects were presented only as activities to stimulate the minds of those who had no homework assignments. In short, Mustardseed is a program that provides "refreshment of one's mind or body after [school] through some activity that amuses or stimulates." It is therefore a recreational operation that is exempt from licensure by statute. Because DPH's conclusion that Mustardseed was not a recreational operation within the meaning of General Statutes § 19a-77(b)(3) was clearly erroneous, its determination that the program was not exempt from licensure can not stand. Because the program was exempt from licensure, DPH was without authority to impose a civil penalty. The Church has raised several additional intriguing constitutional and procedural challenges to the agency's decision. In light of the court's conclusion that Mustardseed is exempt from licensure as a "recreational operation," however, it is neither necessary nor appropriate to address them here.
Based on the foregoing, the Church's appeal is sustained.