Infants and Incompetents; Day-Care Licensing; Construction of Criminal Statutes

Subject:

Infants and Incompetents; Day-Care Licensing; Construction of Criminal Statutes

Requested By:

Senator Harold W. Hardison North Carolina General Assembly

Questions:

(1)

Should children who receive care in a child-care arrangement for less than four hours per day be counted in determining whether the arrangement must be licensed as a day-care facility?

(2)

Do children in the care of great-aunts or other relatives come within the exclusion to the definition of "day-care" set out in G.S. 110-86(2) so that such children would not be counted in determining whether a child-care arrangement was caring for more than five children?

Conclusions:

(1)

Children who receive care in a child-care arrangement for less than four hours per day should not be counted in determining whether the arrangement must be licensed as a day-care facility.

(2)

The exclusion from the definition of "Day care" set out in G.S. 110-86(2) is limited to children who are cared for by their parents, grandparents, guardians or full-time custodians; therefore, children in the care of great-aunts or other relatives who are not their parents, grandparents, guardians or full-time custodians must be counted in determining whether how many children are receiving day care.

G.S. 110-98 provides that it shall be unlawful to operate a day-care facility without being licensed under the provisions of Article 7 of Chapter 110 of the General Statutes. G.S. 110-103 provides that a violation of the provisions of G.S. 110-98 through 110-102 is a general misdemeanor, which is punishable by imprisonment for a term not exceeding two years or by a fine or by both, in the discretion of the court. (G.S. 14-3). In requiring that day-care facilities be licensed, the legislature stated its purpose in G.S. 110-85:

The General Assembly hereby declares its intent with respect to day care of children:

(1)

The State should protect the growing number of children who are placed in day-care facilities or in child-care arrangements when these children are under the supervision and in the care of persons other than their parents, grandparents, guardians or full-time custodians during the day.

(2)

This protection should assure that such children are cared for by persons of good moral character, that their physical safety and moral environment are protected, and that the day-care resources conform to minimum standards relating to the health and safety of the children receiving day care.

(3)

This protection requires the following elements for a comprehensive approach: mandatory licensing of day-care facilities under minimum standards; promotion of higher levels of day care

than required for a license through the development of higher standards which operators may comply with on a voluntary basis; registration of day-care plans which are too small to be regulated through licensing; and a program of education to help operators improve their programs and to develop public understanding of day-care needs and problems."

Article 7 of Chapter 110 makes a distinction between two types of child-care arrangements providing day care: day-care plans and day-care facilities. Only facilities are required to be licensed. A day-care facility is defined as "any day-care center or child-care arrangement which provides day care on a regular basis for more than four hours per day for more than five children, wherever operated and whether or not operated for profit. . . ." A day-care plan is defined as "any day-care program or child-care arrangement where any person provides day care for more than one child and less than six children, wherever operated and whether or not operated for profit."

It is common for both day-care plans and day-care facilities to provide care for after-school children and other children who are generally present for less than four hours per day. Because of the clearly stated legislative intent to protect children who receive care away from their homes, it is tempting to include these after-school children in the number of children used to determine whether or not a child-care arrangement is a day-care facility which must be licensed in order to operate or a day-care plan which must be registered in order to operate. In 1975, at 44 N.C.A.G. 234, this Office dealt with the question of the maximum number of children for whom care could be provided in a day-care plan, and concluded that the maximum number, including after-school children, was five. However, since a violation of the day-care licensing requirements is a criminal offense, and since criminal provisions must be strictly construed, with all conflicts or ambiguities resolved in favor of the defendant, the definition of a day-care facility must be interpreted so as to exclude any after-school children or other children who receive care for less than four hours per day when determining whether more than five children are receiving care.

Thus, if a child-care arrangement provides care on a regular basis for five children under 13 years of age for more than four hours per day (excluding children, grandchildren, wards, or children in full-time custody) and for any number of children for less than four hours per day, that arrangement would be considered a day-care plan which would not be required to obtain a license to operate. Any previous interpretations which conflict with this Opinion are hereby overruled to the extent of the conflict.

G.S. 110-86(2) defines "Day-care" to include "any child-care arrangement under which a child less than 13 years of age receives care away from his own home by persons other than his parents, grandparents, guardians or full-time custodians."

The exclusion as to parents, grandparents, guardians and full-time custodians is very specific and unambiguous. In light of the clearly stated purpose of the day-care licensing laws, there is no basis for expanding the exclusion to include any other relatives who are not guardians or full-time custodians.

Rufus L. Edmisten Attorney General

Ann Reed Special Deputy Attorney General