When deciding whether a child-care arrangement is big enough that it has to be licensed as a day-care facility, do you count kids who are there for only a few hours after school? And does the exclusion for relatives caring for children only cover parents and grandparents, or does it also cover great-aunts and other relatives?

Plain-English summary

Senator Harold W. Hardison asked the AG two specific questions about how to count children for purposes of North Carolina's day-care licensing statute, Article 7 of Chapter 110.

In 1978, the statute distinguished two categories of child-care arrangements. A "day-care facility" was any child-care arrangement that "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." Facilities had to be licensed. A "day-care plan" was any child-care arrangement where any person provided day care "for more than one child and less than six children." Plans had to be registered but not licensed. The two categories used different counting rules; the difference between them controlled whether an arrangement faced the more burdensome facility-licensing regime or only the lighter day-care-plan registration regime.

Question 1: Do after-school children (kids present for less than four hours per day) count toward the five-child trigger that turns a plan into a facility?

The AG said no. The statute defined a day-care facility by reference to two thresholds: more than four hours per day AND more than five children. The literal reading was that the children counted were the ones present for more than four hours per day; if a child was there for less than four hours, the child was outside the "more than four hours per day" category and therefore did not count toward the "more than five children" threshold either. The result was that a child-care arrangement could serve five long-day children plus any number of short-stay after-school children and still remain a day-care plan rather than a facility.

The AG had previously gone the other way. In 1975, 44 N.C.A.G. 234, the office had concluded that even after-school children counted toward the five-child maximum. The 1978 opinion overrules that earlier reading. The reason: G.S. 110-103 makes violation of the licensing requirement a criminal offense. Criminal statutes must be strictly construed, with all conflicts or ambiguities resolved in favor of the defendant. The literal four-hour reading was the construction more favorable to the operator-defendant, so it had to prevail.

Question 2: Does the relative-caregiver exclusion in the day-care definition cover great-aunts and other relatives?

The AG said no. G.S. 110-86(2) defined "day-care" to cover child-care arrangements where children under 13 receive care away from home "by persons other than his parents, grandparents, guardians or full-time custodians." The exclusion listed four specific categories: parents, grandparents, guardians, full-time custodians. A great-aunt who was not the child's guardian or full-time custodian did not fit any of those categories. The AG read the exclusion as specific and unambiguous and refused to read additional relatives into it. Children in the care of a great-aunt who was not also their guardian or full-time custodian had to be counted in determining whether the arrangement was a day-care plan or a day-care facility.

The combined practical effect: an in-home arrangement caring for five full-day children (none of whom are the caregiver's grandchildren, wards, or in her full-time custody) plus any number of after-school children was a day-care plan (needing registration) rather than a day-care facility (needing licensing). If the same arrangement had six full-day children, it crossed into facility territory. And if the operator-caregiver was a great-aunt to one of the children but not the child's guardian, that child counted toward the five.

Currency note

This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Article 7 of Chapter 110 has been substantially restructured since 1978. North Carolina's current child-care licensing framework includes detailed definitions of family child-care homes, child-care centers, and various intermediate categories, with regulatory thresholds that differ from the 1978 "day-care plan" versus "day-care facility" distinction. The relative-caregiver exclusion has been amended multiple times, and current law includes broader and more nuanced exemptions than the 1978 four-category list. Anyone running a current licensing analysis should consult the current Chapter 110 statutes and the implementing rules of the Division of Child Development and Early Education rather than relying on the 1978 framing. The criminal-construction principle (criminal statutes are strictly construed in favor of the defendant) remains a general feature of North Carolina criminal law and is not specific to this opinion.

Historical context: what the AG concluded

The opinion is a careful piece of statutory construction with a clear methodological move at the center.

The statutory architecture. Article 7 of Chapter 110 was the 1971 General Assembly's response to the rapid growth of out-of-home child care in North Carolina during the 1960s and early 1970s. The architecture distinguished two regulatory tiers. Day-care facilities (the larger, longer-duration arrangements) had to be licensed by the Department of Human Resources after meeting minimum standards for staffing, safety, sanitation, and program quality. Day-care plans (the smaller, shorter-duration arrangements, typically home-based) had to be registered but not licensed; registration carried lighter standards.

The threshold between the two tiers turned on three factors: (1) the children must be under 13, (2) the children must be receiving care from someone other than their parents, grandparents, guardians, or full-time custodians, and (3) the size and duration thresholds in the definitions had to be crossed (more than four hours per day for more than five children, in the facility definition; more than one and less than six children, in the plan definition).

The 1975 misstep. In 1975, the AG (at 44 N.C.A.G. 234) had construed the statute to require counting after-school children toward the five-child maximum. The 1975 opinion's intuition was sympathetic: the legislative purpose statement in G.S. 110-85 stressed protecting "the growing number of children" placed in out-of-home arrangements, and excluding after-school children from the count would leave many such children outside the licensing regime. The protective intuition pulled toward an inclusive counting rule.

The 1978 correction. The 1978 opinion rejects the 1975 reading and adopts the literal four-hour rule. The methodological move is the criminal-construction principle. G.S. 110-103 makes a violation of G.S. 110-98 (the licensing requirement) a general misdemeanor; G.S. 14-3 punishes general misdemeanors by up to two years in prison and/or a fine. The licensing requirement, in other words, is enforced through the criminal code. When a statute is criminal in its enforcement mechanism, the rule of lenity applies: ambiguities are resolved in favor of the defendant. The literal four-hour rule was the construction more favorable to the operator-defendant, so it had to prevail over the inclusive counting rule the 1975 opinion had adopted.

The AG was explicit about overruling: "Any previous interpretations which conflict with this Opinion are hereby overruled to the extent of the conflict." That formal overrule statement signals the office's recognition that the prior reading needed to be corrected and that the methodological correction was driven by the criminal-construction principle, not by a policy shift.

The relative-caregiver question. The second question went the other direction. G.S. 110-86(2) listed four specific categories of exempt caregivers: parents, grandparents, guardians, full-time custodians. The text was specific and unambiguous. The AG declined to expand the exclusion to cover great-aunts or other relatives. The reasoning here is not directly about criminal construction; it is about the structural distinction between a list with broad coverage (which would suggest a non-exhaustive intent) and a list of specific categories (which suggests an exhaustive intent). The four-category list reads as exhaustive.

The two answers might appear in tension. In the four-hour question, the AG used a strict-construction-in-favor-of-defendant rule to exclude short-stay children from the count. In the relative-caregiver question, the AG declined to expand the exclusion to additional categories. But the inconsistency is only apparent. The criminal-construction rule resolves ambiguities in favor of the defendant. The four-hour text was ambiguous (does "more than four hours per day" qualify the children or the operation?); the AG resolved that ambiguity in favor of the operator-defendant. The relative-caregiver list, by contrast, was not ambiguous; it was specific. There was no ambiguity to resolve, only a question of whether to read additional categories into the list. The AG declined the legislative-rewrite invitation.

The legislative-purpose backdrop. G.S. 110-85 declared the General Assembly's intent: the State should protect "the growing number of children" placed in day-care or under non-parental supervision; that protection requires good moral character of caregivers, physical safety, moral environment, and minimum standards. The purpose statement was inclusive in tone; it pulled toward a licensing regime that captured as many out-of-home arrangements as possible. The AG acknowledged the tension: "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."

But the AG resisted the temptation, because the criminal nature of the enforcement mechanism overrode the protective policy framing. If the legislature wanted to count after-school children, it had to do so explicitly. The General Assembly could amend the statute to bring the protective reading back; what it could not do (and what the AG could not do for it) was expand criminal liability through interpretive expansion of the statutory text.

For Senator Hardison and the General Assembly in 1978, the operational takeaways were several. First, the day-care licensing regime as written would not reach many in-home arrangements that combined long-day children with after-school children. If the General Assembly wanted that reach, it would have to amend the statute. Second, the relative-caregiver exclusion was narrow; any in-home arrangement run by a non-grandparent relative who lacked guardian or custodian status would face the same five-child threshold as a non-relative arrangement. Third, the criminal-construction principle would consistently constrain any interpretive expansion of licensing reach; the legislature, not the executive branch, had to do any expansion explicitly.

For day-care operators, the operational takeaways were: an arrangement serving five or fewer long-day children plus after-school children of any number remained a day-care plan; an arrangement crossing six long-day children became a day-care facility. Great-aunts and other relatives who were not legal guardians or full-time custodians could not rely on the relative exclusion.

Common questions

What is a day-care plan and what is a day-care facility?

In 1978 NC law, a day-care plan was an arrangement caring for more than one and less than six children, requiring registration but not licensing. A day-care facility was an arrangement caring for more than five children for more than four hours per day, requiring licensing under detailed standards. The two categories had different regulatory burdens.

What is the after-school-children question really about?

It is about whether short-stay children (typically school-age kids dropped off after the school day for an hour or two before parent pickup) count toward the five-child cutoff. If they count, many in-home arrangements would suddenly become facilities. If they do not count, those arrangements stay as plans.

Why did the AG change its mind from 1975 to 1978?

The 1975 opinion had counted after-school children toward the five-child cutoff. The 1978 opinion overrules that, on the ground that licensing-requirement violations are criminal offenses (G.S. 110-103, punishable under G.S. 14-3), and criminal statutes must be strictly construed in favor of the defendant. The literal four-hour reading was more favorable to the operator-defendant, so it had to control.

What is the criminal-construction principle?

A standard rule of statutory interpretation: when a statute creates criminal liability, ambiguities in its text are resolved in favor of the defendant. The principle reflects the constitutional concerns of fair notice and the structural concerns of legislative supremacy over the criminal code. Courts and AGs apply it routinely.

Why didn't the same principle expand the relative-caregiver exclusion?

Because there was no ambiguity to resolve. The exclusion listed four specific categories (parents, grandparents, guardians, full-time custodians). The text was specific. Expanding it to additional categories would not be resolving an ambiguity; it would be rewriting the statute. The criminal-construction principle does not authorize that.

Does this mean a great-aunt babysitting four nieces and nephews would need to register?

Read literally, the 1978 framework would say yes, if she is regularly caring for them and they are not the children of someone she has formal guardian or custodian status over. A casual occasional arrangement would not be "day care" in the regulatory sense. The opinion does not address the line between casual babysitting and regulated day care. Anyone running this analysis today should consult the current statutes and rules; the regulatory categories and exemptions have changed since 1978.

What if the General Assembly wanted to count after-school children?

It would have to amend the statute. The AG opinion specifically signals this: "Any previous interpretations which conflict with this Opinion are hereby overruled to the extent of the conflict." The legislature is the body that defines criminal scope; the AG cannot expand criminal coverage through interpretive expansion.

Does this opinion still apply today?

The methodological principles (rule of lenity for criminal statutes; refusal to expand specific statutory lists) are still standard NC law. The specific four-hour and five-child thresholds, the day-care plan / day-care facility taxonomy, and the relative-caregiver exclusion list are governed by current Chapter 110 text, which has been substantially amended since 1978.

Background and statutory framework

The opinion is grounded in the 1978 text of Article 7 of Chapter 110 and in the criminal-construction principle.

G.S. 110-85 (legislative intent). The General Assembly's purpose statement: protect children placed in day-care arrangements when those children are under non-parental supervision; require minimum standards (good moral character of caregivers, physical safety, moral environment); use both mandatory licensing for day-care facilities and registration for smaller plans; provide education to operators.

G.S. 110-86(2) (definition of "day care"). "[A]ny 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 four-category exclusion is specific and exhaustive.

Day-care facility definition. Article 7's definition: "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." Two thresholds: more than four hours per day AND more than five children.

Day-care plan definition. "[A]ny 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." The threshold: more than one and less than six children.

G.S. 110-98. Requires licensing of day-care facilities. Operating an unlicensed facility is the criminal offense the licensing requirement enforces.

G.S. 110-103. Makes violation of G.S. 110-98 through 110-102 a general misdemeanor. The criminal-construction principle applies because of this provision.

G.S. 14-3. General-misdemeanor punishment: imprisonment for a term not exceeding two years, or a fine, or both, in the discretion of the court.

The criminal-construction principle. Not codified in any specific statute; a longstanding rule of statutory interpretation in NC and federal practice. When a statute creates criminal liability, ambiguities are resolved in favor of the defendant. The rule reflects fair-notice and legislative-supremacy concerns. The AG applied it here to determine that the literal four-hour reading (favorable to the operator-defendant) controlled over the inclusive counting rule the 1975 opinion had adopted.

The 1975 prior opinion (44 N.C.A.G. 234). Held that after-school children counted toward the five-child cutoff. Overruled to the extent of conflict with the 1978 opinion.

Citations

• G.S. 110-85 (legislative intent for day-care licensing)
• G.S. 110-86(2) (definition of "day care"; relative-caregiver exclusion)
• G.S. 110-98 (licensing requirement for day-care facilities)
• G.S. 110-98 through 110-102 (operative provisions whose violation is criminal)
• G.S. 110-103 (violation of G.S. 110-98 through 110-102 is a general misdemeanor)
• G.S. 14-3 (punishment for general misdemeanor)
• Article 7 of Chapter 110 (day-care licensing framework)
• 44 N.C.A.G. 234 (1975) (prior opinion counting after-school children; overruled to the extent of conflict)

Source

• Landing page: https://ncdoj.gov/opinions/infants-and-incompetents-day-care-licensing-construction-of-criminal-statutes/

Original opinion text

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