Musheno v. Department of Public Welfare

DISSENTING OPINION BY

Senior Judge MIRARCHI.

I must respectfuhy dissent.

I would gladly join with the majority opinion had the facts shown or suggested that the Department issued to Petitioner a provisional certificate despite the fact that Petitioner was in full comphance with the Code and ah apphcable regulations. In such a case, there would arguably have been a violation of the Code and/or an abuse of the Department’s discretion, necessitating a remedy. When as here, however, the Department’s inspection detects violations of its regulations, it has grounds to deny the issuance of a certificate of comphance. Burroughs v. Department of Public Welfare, 146 Pa.Cmwlth. 509, 606 A.2d 606 (1992); Colonial Gardens Nursing Home, Inc. v. Department of Health, 34 Pa.Cmwlth. 131, 382 A.2d 1273 (1978). In 2001, the Department found ten violations, almost none of which were disputed by Petitioner. Petitioner further concedes that in the previous year, the Department found regulatory violations. Accordingly, the Department did not err when it issued to her, on the basis of the violations, provisional certificates of comphance.

The majority appears to suggest that the violations upon which the provisional certificate was issued were “technical or pretextual.” Even a cursory review of these violations shows otherwise, and almost every one is directly tied to issues of child safety. Moreover, one must be amazed that after Petitioner engaged a lawyer to negotiate with the Department concerning its previous years’ issuance of a provisional certificate, Petitioner would present her facility for inspection while it suffered from numerous and rudimentary violations.

Petitioner’s argument is that had the Department made its inspections sufficiently prior to the date of expiration of the certificate of comphance, she could have corrected any violations prior to the expiration date. Neither the Code nor the regulations, however, provide that the De*1234partment must make inspections at a time sufficient to allow the licensee to make any corrections or improvements prior to the expiration of the current certificate, nor do they require a reinspection prior to such' expiration. “Correcting [de minimis ] violations and complying with regulations in the first instance without the necessity of correction are substantively distinct licensing requirements.” Holmes Constant Care Center v. Department of Public Welfare, 124 Pa.Cmwlth. 42, 555 A.2d 282, 285 (1989). Only in the latter instance may a regular certificate of compliance be issued. Id.

There is no denying that Petitioner’s allegations indicate that the Department’s failure to conduct timely inspections allows at least her facility to operate for brief periods of time without a provisional or regular certificate of compliance. While this is not a welcome matter, I would suggest that the important issue is not, as the majority suggests, that our agencies can show they work with crackerjack efficiency in times of budgetary constraints. The important issue is child safety. Petitioner does not argue that the Department’s actions harm children. She argues that the Department’s actions could harm her business.

This brings us to the issue of remedies. The majority simply remands this matter to the Department to conduct a hearing on Petitioner’s appeal of the December 28, 2001 issuance of a provisional certificate. But to what end? There is no dispute that Petitioner was not in compliance with the regulations at the date of the Department’s inspection; hence, there can be no argument that the provisional certificate was issued in error. Petitioner, herself, specifically requests that this Court remand the matter to the Department to enter an order rescinding the most recent provisional certificate and ordering the issuance of a regular certificate of compliance to be effective October 6, 2001. She, however, fails to set forth any legal basis for such a remedy, and the majority does not address this issue either.

The concern of the majority, quite legitimately, is that the Department has not made timely inspections of, at least, Petitioner’s facility, resulting in brief periods when the facility is not covered by a current license. The remedy for such a problem would be some form of injunctive relief. The majority, however, does not explore the basis upon which this relief may be granted, or if it is indeed even warranted by the alleged facts of this case.

Because the Department’s inspection detected regulatory violations, the Department did not err by issuing to Petitioner a provisional certificate of compliance. Petitioner did not appeal the provisional certificate on the basis that she was fully in compliance with all regulations. Thus, Petitioner’s ultimate desire — to be issued a regular certificate of compliance back-dated to October 6, 2001 — cannot be realized even if her appeal to the Bureau of Hearings and Appeals was not rendered moot. Accordingly, I would affirm the final administrative order of the Department.