NORTH CAROLINA GENERAL ASSEMBLY

1971 SESSION

 

 

CHAPTER 803

HOUSE BILL 100

 

 

AN ACT TO PROTECT CHILDREN THROUGH LICENSING OF DAY-CARE FACILITIES AND OTHER LIMITED REGULATION.

 

The General Assembly of North Carolina enacts:

 

Section 1.  Chapter 110 of the North Carolina General Statutes is hereby amended by adding a new article to be known as "Article 7" with the title "Day-Care Facilities" as follows:

"Article 7.

"Day-Care Facilities.

"§ 110-85.  Legislative intent and purpose. — 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.

"§ 110-86.  Definitions. — Unless the context or subject matter otherwise requires, the terms or phrases used in this Article shall be defined as follows:

(1)        'Board' means the Child Day-Care Licensing Board created under this Article.

(2)        'Day-care' includes 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 on a regular basis for more than four hours per day where a payment, fee or grant is made for care.

(3)        'Day-care facility' includes any day-care center or child-care arrangement that provides day care for more than five children and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit, except that the following are not included: public schools; non-public schools whether or not accredited by the State Department of Public Instruction, which regularly and exclusively provides a course of grade school instruction to children who are of public school age; summer camps having children in full-time residence; summer day camps; and Bible schools normally conducted during vacation periods.

(4)        'Day-care plan' includes any day-care program or child-care arrangement where any person provides day care for more than one child and less than six children and receives a payment, fee or grant for any of the children receiving care, wherever operated, and whether or not operated for profit.

(5)        'Director' means the Director of the Child Day-Care Licensing Board.

(6)        'License' means a license issued by the Board to any day-care facility which meets the statutory standards established under this Article.

(7)        'Operator' includes the owner, director or other person having primary responsibility for operation of a day-care facility subject to licensing.

"§ 110-87.  Child Day-Care Licensing Board. — (a) There is hereby created the Child Day-Care Licensing Board which shall coordinate all local and State agencies in inspecting, licensing and providing services to day-care facilities as provided by this Article. The Board shall consist of 15 members, five of whom shall be State officials and ten of whom shall be citizen-members as hereinafter provided.

(b)        The five State officials who shall serve on the Board are as follows, except that any of the officials may designate a representative from his department to serve on the Board with full status as a Board member: Commissioner of Insurance, Commissioner of Social Services, State Health Director, State Superintendent of Public Instruction and the Commissioner of Mental Health.

(c)        The ten citizen-members who serve on the Board shall be appointed by the Governor (except that none shall be employees of the five designated State officials who are Board members) and at least five of said appointees shall be operators of day- care facilities subject to licensing who are actively engaged in the operation for profit. Of the five operators who are operating for profit, one shall be from a facility licensed for no more than 29 children, three shall be from facilities licensed for no more than 70 children and one operator shall be from a facility licensed for more than 70 children. Three appointees shall be citizens not employed by day-care facilities and who have no direct or indirect pecuniary interest in such but two of whom shall be parents of pre-school children at the time of their appointment. Two appointees shall be operators of non-profit day-care facilities. These appointments shall be for terms of six years, with at least three appointees rotating off the Board each two years, except that a Board member may serve more than one term if so appointed by the Governor. In order to provide for rotation, the Governor shall designate three of the initial appointees to serve for two years, three to serve for four years, and four to serve full terms of six years. In case of vacancy, the Governor shall appoint a citizen-member to serve the remainder of the unexpired term. If one of the five appointees who are required to be operators for profit subject to licensing ceases to engage in operating a day-care facility for profit, the office of such Board member shall become vacant and the Governor shall appoint a qualified operator for profit to serve the remainder of such term.

(d)        The Board shall elect its own chairman who shall have been appointed to the Board by the Governor and who shall serve at the pleasure of the Board, except that in no case shall a member of the Board serve as chairman for more than six years.

"§ 110-88.  Powers and duties of the Board. — The Board shall have the following powers and duties:

(1)        To develop policies and procedures for the issuance of a license to any day-care facility which meets the health and safety standards established under this Article.

(2)        To approve the issuance of licenses for day-care facilities based upon inspections by and written reports from existing agencies of State and local government where available, or based upon inspections by and reports from personnel employed by the Board where such services are not otherwise available.

(3)        To develop a system or plan for registration of day-care plans in such form and place as shall be determined by the Board so that day-care plans which are not subject to licensing may be identified, so that there can be an accurate census of the number of children placed in day-care resources, and so that providers of day care who do not receive the educational and consultation services related to licensing may receive educational materials or consultation through the Board.

(4)        To employ the Director of the Board, who shall be the chief administrator of the programs related to day care authorized by this Article and who shall implement the policies and procedures developed by the Board.

(5)        To make rules and regulations and develop policies for implementation of this Article, including procedures for application, approval, renewal and revocation of licenses.

(6)        To make rules and regulations for the issuance of a provisional license to a day- care facility which does not conform in every respect with the standards relating to health and safety established in this Article provided that the Director finds, and the Board concurs in the finding that the operator is making a reasonable effort to conform to such standards, except that a provisional license shall not be issued for more than one year and shall not be renewed.

(7)        To develop and promulgate standards which reflect higher levels of day care than required by the standards established by this Article, which will recognize better physical facilities, more qualified personnel, and higher quality programs. The Board shall be empowered to issue two grades of licenses: an 'A' license for compliance with the provisions of the act, and an 'AA' license for those licensees meeting the voluntary higher standards promulgated by the Board.

(8)        To furnish such forms as may be required for implementation of this Article under the procedures developed by the Board.

(9)        To serve as an administrative appeal body to determine all issues related to the issuance, renewal and revocation of licenses.

(10)      To receive travel and per diem expenses as authorized for members of State boards under G.S. 138-5.

"§ 110-89.  Director. — The Director shall be a professional person with leadership and executive abilities who is knowledgeable about day care of children. The Director shall be responsible to the Board and shall serve at its pleasure.

"§ 110-90.  Powers and duties of Director. — The Director shall have the following powers and duties under the policies, rules and regulations of the Board:

(1)        To administer the licensing program for day-care facilities and the registration system for day-care plans.

(2)        To obtain and coordinate the necessary services from other State departments and units of local government which are necessary to implement the provisions of this Article.

(3)        To employ such administrative personnel and staff as may be necessary to implement this Article where required services, inspections or reports are not available from existing State agencies and units of local government.

(4)        To issue a license effective for one year to any day-care facility which meets the standards established by this Article.

(5)        To revoke after hearing the license of any day-care facility which ceases to meet the standards established by this Article.

(6)        To prosecute or defend on behalf of the State, through the office of the Attorney General, any legal actions arising out of the administration or enforcement of this Article.

(7)        To promote and coordinate educational programs and materials for operators of day-care facilities and day-care plans which are designed to improve the quality of day care available in the State, using the resources of other State and local agencies and educational institutions where appropriate.

(8)        To issue a rated license when any operator of a day-care facility required to be licensed hereunder has satisfied the Board that it has met the voluntary standards developed and adopted by the Board.

"§ 110-91.  Mandatory standards for a license. — The following standards relating to the health and safety of children shall be complied with by all day-care facilities, except as otherwise provided in this Article. These standards shall be the only required standards for issuance of a license by the Director under policies and procedures of the Board.

(1)        Medical care and sanitation. Each day-care facility, and all personnel, shall meet the minimum health and sanitation standards developed by the State Board of Health subject to adoption by the Board not inconsistent with the provisions of this Article. The health and sanitation standards developed by the State Board of Health shall cover such matters as the cleanliness of floors, walls, ceilings, storage spaces, utensils, and other facilities; adequacy of ventilation; sanitation of water supply, lavatory facilities, toilet facilities, sewage disposal, food protection facilities, bactericidal treatment of eating and drinking utensils, and solid waste storage and disposal; methods of food preparation and serving; health of staff members; and such other items and facilities as are necessary in the interest of the public health. Each year, or more often if required by the Board in a particular case, each day-care facility shall submit evidence satisfactory to the Board that it conforms to these health and sanitation standards.

Each child shall have a medical examination by a licensed physician prior to being admitted or within two weeks following admission to a day-care facility; a record of such examination shall be on file in the records of the facility, provided, however, that no medical certificate shall be required of any child who is and has been in normal health and whose parent, guardian, or full-time custodian objects in writing to a medical examination on religious grounds which conform to the teachings and practice of any recognized church or religious denomination.

Each child shall be immunized in such manner as to meet the requirements of Articles 9 and 9A of Chapter 130 of the General Statutes.

Each day-care facility shall have a plan of emergency medical care which shall include provisions for communication with and transportation to a specified medical resource, unless otherwise previously instructed. No child receiving day care shall be administered any drug or other medication without specific instructions from a physician or the child's parent, guardian or full-time custodian. Medical information on each child in care, including the names, addresses, and telephone numbers of the child's physician and parents, legal guardian or full-time custodian shall be readily available to the staff of the day-care facility in the records of the facility in accordance with a form approved by the Board for this purpose.

There shall be a separate bed, cot or mat for each child to use during rest periods, equipped with individual linen, except for school children who are cared for only during after-school hours; if a mat is used, it shall be of a waterproof, washable material at least two inches thick and shall be folded so that the floor side does not touch the sleeping side. Beds and linens used by members of the household of the operator shall not be used for children receiving care in the day-care facility.

(2)        Health-related activities. Each child in a day-care facility shall receive a lunch which is nutritionally adequate for good health. In addition, each child shall receive refreshments or a snack in the morning and the afternoon.

Each day-care facility shall arrange for each child in care to be out-of-doors each day if weather conditions permit.

Each day-care facility shall have a rest period for each child in care after lunch or at some other appropriate time.

No day-care facility shall care for more than 25 children in one group. Facilities providing care for 26 or more children shall provide for two or more groups according to the ages of children and shall provide separate supervisory personnel for each group.

(3)        Location. Each day-care facility shall be located in an area which is free from conditions which are deemed hazardous to the physical and moral welfare of the children in care in the opinion of the Board.

(4)        Building. Each day-care facility shall be located in a building which meets the requirements of the North Carolina Building Code under standards which shall be developed by the Building Code Council, subject to adoption by the Board specifically for day-care facilities, including facilities operated in a private residence. Such standards shall be consistent with the provisions of this Article.

(5)        Fire prevention. All day-care facilities shall be inspected annually by a local fire department or a volunteer fire department, using fire-prevention standards which shall be developed by the State Insurance Department after consultation with local fire departments and volunteer fire departments, subject to adoption by the Board.

(6)        Space requirements. There shall be no less than 25 square feet of indoor space for each child for which a day-care facility is licensed, exclusive of closets, passageways, kitchens, and bathrooms, and such floor space shall provide during rest periods 200 cubic feet of air space per child for which the facility is licensed. There shall be adequate outdoor play area for each child under rules and regulations to be adopted by the Board which shall be related to the size and type of facility, availability and location of outside land area, except in no event shall the minimum required exceed 75 square feet per child, which area shall be protected to assure the safety of the children receiving day care by an adequate fence or other protection.

(7)        Staff-child ratio. In determining the staff-child ratio, children of the supervisor or other children under 13 years of age shall be included. The Board shall adopt rules and regulations regarding child-staff ratio, provided, however, that such rules and regulations shall in no event require a ratio of staff members to children more stringent than the following:

a.         For day-care facilities caring for less than 30 children, the ratios shall be as follows:

1.         In facilities licensed for six to ten children, inclusive, one full-time supervising adult with another person between the ages of 16 and 70 years, inclusive, available for emergencies in relief.

2.         In facilities licensed for 11 to 20 children, inclusive, there must be one full- time supervising adult and one full-time staff member, one of whom may have responsibility for food preparation.

3.         In facilities licensed for 21 to 29 children, inclusive, there must be one full- time supervising adult and two full-time staff members, one of whom may have responsibility for food preparation.

b.         For facilities caring for 30 or more children, the ratio shall be as follows:

Ages Of Children                No. Of Children                Staff Members

0 to 2 years                           8                                        1

2 to 3 years                           12                                      1

3 to 4 years                           15                                      1

4 to 5 years                           20                                      1

5 or more years                     25                                      1

1.         Children under two years of age in any facility must be kept separate from older children, and with a full-time adult always in attendance.

2.         Staff members required to be responsible for the care of children shall not have responsibility for food preparation.

c.         To provide for absenteeism and withdrawals without notice, a 20% tolerance shall be allowed as to groups and numbers of children specified in this section and as to the total number for which the facility is licensed, except that no more than 25 children shall be attended by one staff member.

d.         Each facility may care for school age children in after-school hours up to 20% in excess of the number for which it is licensed. However, if there are more than ten after-school-hour children, an additional staff member must be present to supervise them during their hours at the facility, and there shall be no more than 25 of these children in the care of any one staff member.

(8)        Qualifications for Staff. Each day-care facility shall be under the direction or supervision of a literate person at least 21 years of age. Each staff member employed in a day-care facility supervising children shall be not less than 16 years of age, nor more than 70 years of age. No person shall be an operator of nor be employed in a day-care facility who has been convicted of a crime involving child neglect, child abuse, or moral turpitude, or who is an habitually excessive user of alcohol or who illegally uses narcotic or other impairing drugs, or who is mentally retarded or mentally ill to an extent that may be injurious to children.

(9)        Records. Each day-care facility shall keep accurate records on each child receiving care in the day-care facility in accordance with a form furnished or approved by the Board, and shall submit attendance reports as required by the Board.

Each day-care facility shall keep accurate records on each staff member or other person delegated responsibility for the care of children in accordance with a form approved by the Board.

All records of any day-care facility, except financial records, shall be subject to review by the Director or by duly authorized representatives of the Board or a cooperating agency who shall be designated by the Director, with the approval of the Board.

Any effort to falsify information provided to the Board shall be deemed by the Board to be evidence of violation of this Article on the part of the operator or sponsor of the day-care facility and shall constitute a cause for revoking or denying a license to such day-care facility.

(10)      Each operator or staff member shall truly and honestly show each child in his care true love, devotion and tender care.

"§ 110-92.  Duties of State and local agencies. — Nothing in this Article shall be interpreted to interfere with the authority of the State Department of Social Services to visit or approve or disapprove a day-care facility for purchase of care with federal funds available for such purposes or for placement of children from families receiving financial assistance or other services through the State Department of Social Services or a county department of social services. Provided the Department of Social Services shall have no authority to inspect a private day-care facility not choosing to participate in federally purchased day-care or family assistance program financed by public or charitable funds.

When requested by an operator of a day-care facility or by the Director, it shall be the duty of local and district health departments to visit and inspect a day-care facility to determine whether the facility complies with the health and sanitation standards required by this Article and with the minimum health and sanitation standards developed by the State Board of Health as authorized by G.S. 110-91(1), and to submit written reports on such visits or inspections to the Director on forms approved and provided by the Board.

When requested by an operator of a day-care facility or by the Director, it shall be the duty of the local and district health departments, and any building inspector, fire prevention inspector, or fireman employed by local government, or any fireman having jurisdiction, or other officials or personnel of local government to visit and inspect a day-care facility for the purposes specified in this Article, including plans for evacuation of the premises and protection of children in case of fire, and to report on such visits or inspections in writing to the Director on forms provided by the Board so that such reports may serve as the basis for action or decisions by the Director or Board as authorized by this Article.

"§ 110-93.  Licensing procedure. — (a) Each operator of a day-care facility shall annually apply to the Board for a license. The application shall be in such form as is required by the Board. Each operator seeking a license shall be responsible for accompanying his application with the necessary supporting data and reports to show conformity with the standards established or authorized by this Article including reports from the local and district health departments, local building inspectors, local firemen, voluntary firemen, and others, on forms which shall be provided by the Board.

(b)        If an operator conforms to the standards established or authorized by this Article as shown in his application and other supporting data, the Director shall issue a license effective for one year subject to suspension or revocation for cause as provided in this Article. If the applicant fails to conform to the required standards, the Director or his staff may issue a provisional license under the policies of the Board provided that the operator shall be notified in writing by registered or certified mail of the reasons for issuance of a provisional license.

(c)        Each licensed operator of day-care facility must annually apply in order to renew his license and must accompany such renewal application with such supporting data and reports as are required to show conformity with the standards established under this Article.

(d)        If a licensed day-care facility fails to meet or maintain the standards for a license, the Director shall report such fact to the Board which may thereupon notify, by registered or certified mail, the applicant or licensee of his right to appear before the Board at a specified place and time not less than 10 or more than 60 days from the date of the notice, to show cause, if any exists, why the Board should not deny or revoke the license. If the applicant or licensee fails to satisfy the Board at said hearing that the standards have been maintained, the Board may deny or revoke the license. The operator shall retain any current license pending disposition of any appeal.

"§ 110-94.  Administrative appeal. — Upon receipt by the Director of notice of an appeal, the Director shall arrange for an appeal hearing before the Board within 60 days, provided that the Board may delegate the hearing of appeals to a panel consisting of three or more Board members, at least one of whom must be the operator of a licensed private day-care facility, and may designate a chairman of such panel for the purpose of presiding at such hearings.

"§ 110-95.  Appeal hearing. — Upon notification by the Board to an operator of hid right to appear before the Board as provided in G.S. 110-93(d), or upon receipt of an appeal, the Director shall notify all interested persons of whom he has notice or knowledge of the time and place of the hearing. The operator involved and other persons having a legitimate interest shall have a right to be present, to be represented by counsel, and to present evidence on the issue of whether the standards involved were complied with by the day-care operator and facility. The Director shall notify the appellant and the operator, if other than the appellant, of the decision of the Board in writing by registered or certified mail, including an explanation of the reasons for such decision. The decision of the Board with regard to any license shall be final. All decisions of the Director and of the Board shall be retained by the Board for two years as matters of public record.

"§ 110-96.  Judicial review of administrative appeals. — Any party may appeal a decision of the Board to deny or revoke a license to the superior court in the county where the day-care facility is located. Notice of intention to appeal shall be given by registered or certified mail to the Director and to the clerk of superior court of such county within 30 days after receipt of the Board's order by the operator. The right to judicial review shall be deemed waived if notice is not given as herein provided.

"§ 110-97.  Judicial review hearing. — The appeal hearing shall be de novo before any superior court judge holding court in the district who shall cause sufficient notice of the appeal hearing to be given to all parties of record. The hearing shall be conducted by the judge without a jury, and the court may affirm, reverse, or modify the Board's order.

"§ 110-98.  Mandatory license. — It shall be unlawful for any day-care facility to offer or provide day care without being licensed under the provisions of this Article. In order to provide for gradual implementation of the licensing program, each day- care facility shall register with the Board between January 1 and April 1, 1972, which registration shall be valid in lieu of license until the day-care facility is licensed or until December 31, 1972, whichever is earlier, provided that the Board, upon recommendation of the Director, may extend the validity of such registration in individual cases until July 1, 1973, as to any day-care facility which is not licensed by January 1, 1973.

"§ 110-99.  Display of license. — Each day-care facility shall maintain its current license displayed in a prominent place at all times so that the public may be on notice that the facility is licensed and may observe any grade or rating which may appear on the license.

"§ 110-100.  Licenses are property of the State. — Any license issued to a day-care facility under this Article shall remain the property of the State and may be removed by persons employed or designated by the Director in the event that the license is not renewed or is revoked or has expired or in the event that the grade or rating is changed.

"§ 110-101.  Registration. — It shall be unlawful for any person to offer or provide a day-care plan unless such day-care plan is registered with the Board in accordance with the system for registration which shall be developed by the Board.

"§ 110-102.  Information for Parents. — The Board shall provide to each operator of a day-care facility a summary of this Article to be furnished by the operator to the parents, guardian, or full-time custodian of each child receiving care in the facility, which summary shall include the name and address of the Director and address of the Board, in such form as shall be provided by the Board to all operators.

"§ 110-103.  Penalty. — Any person who violates the provisions of G.S. 110-98 through G.S. 110-102 shall be guilty of a general misdemeanor."

Sec. 2.  Article 2 of Chapter 105 of the North Carolina General Statutes is hereby amended by adding a new section designated as G.S. 105-60, to read as follows:

"§ 105-60.  Day-care facilities. — Every person, firm or corporation engaged in operating a day-care facility as defined by G.S. 110-86 or a child-care arrangement which provides day care for more than five children who are less than 13 years of age by persons other than their parents, grandparents, guardians or full-time custodians, away from their own homes, on a regular basis, for more than four hours per day, and which receives a payment or fee for any of the children receiving care, wherever operated, and whether or not operated for profit, shall pay an annual license tax for the privilege of operating a day-care facility. This privilege license tax shall be $2.00 for each child for which the day-care facility is licensed by the Child Day-Care Licensing Board under Article 7 of Chapter 110 of the North Carolina General Statutes."

Sec. 3.  This act shall become effective January 1, 1972.

In the General Assembly read three times and ratified, this the 9th day of July, 1971.