When the Child Day Care Commission writes a rule requiring day care licenses for preschool programs in public school buildings (whether run by the school system or by a private provider), can it lawfully reach programs run by public schools for 3 and 4 year olds even though G.S. 110-86(3) excludes 'public schools' from the definition of 'day care facility'?

Plain-English summary

The North Carolina Department of Public Instruction asked whether a new Child Day Care Commission rule could require licenses for preschool programs in public school buildings, including programs run by a public school system. The AG said the rule could not override G.S. 110-86(3), which excluded “public schools” from the definition of day care facility. In the AG’s view, that exclusion covered programs public schools operated under authority from the General Assembly and State Board of Education, regardless of the children’s ages.

A private provider’s preschool program in a public school building received a different answer. The building alone did not make it a “public school.” The opinion says such a program is subject to Commission regulation if it meets the definition of day care facility. That condition is essential; the opinion did not declare that every private use of school space requires a day care license.

The AG also answered no when asked whether the State was prohibited from purchasing services from an unlicensed public-school day care program. For the new rule, the opinion concluded it was void and unenforceable to the extent it tried to regulate programs operated by public schools within the statutory exclusion.

Currency note

This opinion evaluates statutes and rules as they stood in 1990. Check current child-care licensing and public-school law for a present program.

Background and statutory framework

The Commission’s rule, effective August 1, 1990, reached preschool programs in public school buildings whether run by the school system or a private provider. The AG applied the principle that an agency cannot adopt a rule contrary to a statute. It read the statutory “public schools” exclusion as covering school-operated programs, including later-developed early-childhood programs. The opinion contrasted the unqualified public-school exclusion with a narrower exclusion for certain nonpublic schools.

For a private provider, the AG said the public-school exclusion did not apply just because the program used a school building. Whether the Commission could regulate still depended on the statutory day care facility definition. The opinion did not examine the operations of any particular private provider.

Common questions

Does a public school need a Commission license for a preschool program it operates?

Under the 1990 opinion, no if the program is operated under authority from the General Assembly and State Board of Education. The AG said the public-school exclusion applied regardless of children’s ages.

Does a private preschool in a public school building automatically need a license?

No automatic answer follows from the building. The AG said the public-school exclusion did not cover a private provider, and Commission regulation applied if the program met the definition of a day care facility.

Was the Commission’s entire rule void?

The AG said it was void and unenforceable to the extent it attempted to regulate excluded public-school programs. The opinion did not invalidate every application of the rule to private providers.

Citations

• G.S. § 110-85
• G.S. § 110-86(3)
• G.S. § 110-103
• G.S. § 115C-12(11), G.S. § 115C-47(7), G.S. § 115C-47(8), G.S. § 115C-106
• 1971 N.C. Sess. Laws Ch. 803
• 10 N.C.A.C. 3U.0102(21), 10 N.C.A.C. 3U.0102(24), 10 N.C.A.C. 3U.0202
• States' Rights Democratic Party v. Board of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948)
• Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948)
• Commissioner of Insurance v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980)
• Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979)
• Bridges v. Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942)
• Davidson Co. v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280 (1987)
• Employees v. Missouri Public Health Department, 411 U.S. 279 (1973)

Source

• Landing page: https://ncdoj.gov/opinions/education-state-departments-institutions-and-agencies-licenses-and-licensing/

Original opinion text

Requested By: Harry E. Wilson, Legal Specialist, North Carolina Department of Public Instruction

Questions:

(1) Are educational programs operated by public schools for 3 and 4 year old children subject to licensure and regulation by the Child Day Care Commission?

(2) Are educational programs for 3 and 4 year old children housed in public school buildings but operated by private providers subject to licensure and regulations by the Child Day Care Commission?

(3) Is the State prohibited from purchasing day care services from day care programs operated by the public schools, even though those programs are not licensed by the Child Day Care Commission?

Conclusion:

(1) No.

(2) Yes.

(3) No.

The Child Day Care Commission (originally the Child Day Care Licensing Board) was created by the General Assembly in 1971, and was given responsibility for licensing day care facilities. 1971 N.C. Sess. Laws Ch. 803; G.S. § 110-85 et seq. As defined in G.S. § 110-86(3), the term "day care facility" excludes "public schools". On a number of occasions during the 1970's and 1980's, this office informally advised public schools and the Day Care Commission that the Commission does not have any jurisdiction or authority over public school programs. Until recently, the Commission had not attempted to assert any authority over public schools. However, effective August 1, 1990, the Commission amended its rules, specifically 10 N.C.A.C. 3U.0202, to require a day care license for "preschool programs housed in a public school building, whether operated by a public school system or a private provider." The Department of Public Instruction has asked for the opinion of this office concerning the validity of this rule.

State agencies have authority to adopt rules implementing acts of the General Assembly, but in the course of exercising that authority they may not adopt or enforce rules contrary to acts of the General Assembly. States' Rights Democratic Party v. Board of Elections, 229 N.C. 179, 186, 49 S.E. 2d 379 (1948). In this case we must determine the scope of the Commission's rule and the scope of the legislative exemption for "public schools." To the extent that the Commission's rule infringes upon the legislative exemption, it is void and unenforceable.

The scope and intent of the Commission's rule is relatively clear: any program housed in a local school building, whether educational or custodial in nature, and whether operated by a public school system or a private provider is subject to licensure and regulation by the Commission as long as the children enrolled in that program are less than kindergarten age, i.e., less than five years of age. See 10 N.C.A.C. 3U.0102 (21) and (24), and 10 N.C.A.C. 3U.0202. Conversely, it is apparent that the Commission does not intend that any program operated by public schools for children of kindergarten age or older, is subject to licensure or regulation by the Commission.

The scope of the legislative exclusion for "public schools" is somewhat ambiguous. It could mean that all programs operated in public school buildings are exempt from licensure or regulation regardless of whether the programs are operated by the public schools or by private providers. Construing the exclusion more narrowly, it could mean that only programs operated in public school buildings by the public schools are exempt from licensure or regulation. Most narrowly, it could mean that only programs operated by the public schools for children of traditional school age, i.e. age five or older, are excluded from licensure and regulation by the Commission.

When statutes are ambiguous, the rules of statutory construction must be applied to determine the General Assembly's intent. In ascertaining this intent, "the language of the statute, the mischiefs sought to be avoided and the remedies intended to be applied" should be considered. Young v. Whitehall Co., 229 N.C. 360, 367, 49 S.E.2d 797 (1948). Further, the act as a whole and its relation to other laws must be considered. Commissioner of Insurance v. Rate Bureau, 300 N.C. 381, 409, 269 S.E.2d 547 (1980) ("The rulemaking power of an administrative agency is restricted by law apart from the statute conferring power and an agency having authority to effectuate the policies of a particular statute may not effectuate such policies so single mindedly that it wholly ignores other and equally important legislative objectives.")

Application of these rules to the phrase "public schools" leads us to the conclusion that the General Assembly intended all programs operated by public schools under the authority conferred upon them by the General Assembly and the State Board of Education to be exempt from licensure and regulation by the Day Care Commission regardless of the age of the children enrolled in those programs. Likewise, it leads us to the conclusion that programs housed in public school buildings but operated by private providers were not intended to be exempt from licensure and regulation by the Commission, regardless of the age of the children enrolled in those programs.

The General Assembly's specific and primary intention in regulating day care is that "the State should protect the growing number of children placed in day care facilities or in child care arrangements when those children are under the supervision and care of persons other than their parents, grandparents, guardians or full time custodians during the day." G.S. § 110-85. (Emphasis added.) The clear import of this statement is that the General Assembly intended to extend the protection of children by regulation of private sector day care and did not intend the redundant regulation of programs already regulated by the State. The General Assembly and State Board of Education, pursuant to their constitutional obligations, have adopted a comprehensive plan for public education, including, inter alia, standards for curriculum, personnel and facilities. See Hughey v. Cloninger, 297 N.C. 86, 253 S.E.2d 898 (1979). Local boards of education are the administrative arms of the General Assembly and the State Board of Education in carrying out this comprehensive plan. Bridges v. Charlotte, 221 N.C. 472, 478, 20 S.E.2d 825 (1942). This plan of education is directed primarily to children five years of age and older. In recent years, however, the General Assembly, in recognition of the value of early childhood education and education beyond the normal school day, has authorized, and in some cases directed, local school boards to provide educational programs for children between the ages of three and five. See G.S. § 115C-106, 122 and 146.1 et seq. (educational program required to be provided for handicapped children from three to five years of age); G.S. § 115C-47(7) and 408 (authorizing the State Board of Education and local boards of education to accept and administer federal funds, including federal funds for early childhood education programs); and G.S. § 115C-12(11) and 47(8) (authorizing State Board of Education and local boards of education to sponsor and conduct research programs and special projects to improve educational opportunities for children.) In response to this legislation, the Department of Public Instruction has adopted recommended standards for programs for three and four year old children operated by public schools. These standards govern curriculum, staffing ratios, teacher qualifications, health, safety, and nutrition, and the standards meet or exceed the requirements of the Day Care Commission.

It is, therefore, highly unlikely that the legislature intended to vest jurisdiction over public school programs in the Day Care Commission and hence create a needless duplication of state regulatory authority. To the contrary, the specific exclusion for "public schools" indicates the legislature's conscious acknowledgment that children in public school programs are, in fact, protected by virtue of the comprehensive and well-established statutory and regulatory scheme governing such programs.

Our conclusion is strongly supported by three other factors. First, legislation is generally applied prospectively so that a comprehensive term will be construed to encompass programs coming into existence after the enactment of the legislation. Southerland Statutory Construction, § 49.02 (4th Ed. 1986). "Public schools" is a comprehensive term. In 1971 the "public schools" were limited to grades 1 through 12. Kindergarten and other early childhood education programs were added to the "public schools" after 1971. Applying the term "public schools" prospectively results in kindergarten and other early childhood education programs established after 1971 coming within the meaning of that term. Second, the exclusion in G.S. § 110-86(3) for "public schools" is not limited in any respect. By contrast, the exclusion in that same section for nonpublic schools is limited to programs operated for "children who are of public school age." Had the General Assembly intended the "public schools" exclusion to be limited in this same manner, it would have expressly included that limitation. Third, violations of day care requirements are punishable by civil penalties, criminal fines and imprisonment. G.S. § 110-103 and 103.1. This is strong evidence that the General Assembly did not intend programs operated by public schools to be subject to licensure or regulation by the Day Care Commission.

The government, whether state or federal, and its agencies are not ordinarily to be considered as within the purview of the statutes, however general and comprehensive the language of the act may be, unless intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication. This general doctrine . . . applies with special force to statutes . . . under which liabilities would be imposed on the governments.

82 CJS, Statutes, § 317; see also Employees v. Missouri Public Health Department, 411 U.S. 279 (1973); Davidson Co. v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280, modified and affirmed on other grounds, 321 N.C. 252 (1987) (Normally general statutes do not apply to the State or its agencies or subdivisions, unless the legislature has clearly manifested that intent.)

Application of these same rules of statutory construction to preschool programs housed in public schools but operated by private providers leads to the conclusion that the phrase "public schools" was not intended to encompass these programs. It is therefore our opinion that these programs are subject to regulation by the Child Day Care Commission if they meet the definition of day care facilities. On the other hand, programs operated by local boards of education under authority granted them by the General Assembly and the State Board of Education are not subject to licensure or regulation by the Commission, regardless of the ages of the children enrolled in such programs. To the extent that 10 N.C.A.C. 3U.0202 attempts to regulate these public school programs, it is void and unenforceable.

Lacy H. Thornburg, Attorney General

Edwin M. Speas, Jr., Special Deputy Attorney General

Laura E. Crumpler, Assistant Attorney General