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North Carolina v. Fayetteville Street Christian School and Its Operator Mr. Bruce D. Phipps

Filed: September 4, 1979.

THE STATE OF NORTH CAROLINA, THE CHILD DAY-CARE LICENSING COMMISSION OF THE DEPARTMENT OF ADMINISTRATION AND JOSEPH W. GRIMSLEY, SECRETARY OF THE DEPARTMENT OF ADMINISTRATION, EX REL, RUFUS L. EDMISTEN, ATTORNEY GENERAL OF NORTH CAROLINA
v.
FAYETTEVILLE STREET CHRISTIAN SCHOOL AND ITS OPERATOR MR. BRUCE D. PHIPPS; GOSPEL LIGHT CHRISTIAN SCHOOL AND ITS OPERATOR MRS. DELORES B. YOKELY; GRACE CHRISTIAN SCHOOL AND ITS OPERATOR MR. EARL R. EATON; IMMANUEL DAY CARE CENTER AND ITS OPERATOR MRS. ELIZABETH HARRELL; BAPTIST TEMPLE SCHOOL AND ITS OPERATOR MR. DONALD R. CARTER; GRACE CHRISTIAN SCHOOL AND ITS OPERATOR MR. ROBERT DURHAM; BETHANY CHURCH SCHOOL AND ITS OPERATOR REVEREND GENE WOODALL; TABERNACLE CHRISTIAN SCHOOL DAY CARE AND ITS OPERATOR MR. RANDALL SHOOK; SOUTH PARK BAPTIST SCHOOL AND ITS OPERATOR MR. DANIEL D. CARR; GOSPEL LIGHT BAPTIST CHURCH AND ITS OPERATOR REVEREND GARY BLACKBURN; FRIENDSHIP CHRISTIAN SCHOOLS AND ITS OPERATOR MR. CHARLES STANLEY; AND ALL OTHERS SIMILARLY SITUATED



Appeal by defendants from Smith (Donald L.), Judge. Orders entered 11 December 1978 in Superior Court, Wake County. Heard in the Court of Appeals 29 June 1979.

Erwin, Judge. Judge Clark and Mitchell concur. Judge Mitchell concurred in this opinion on 17 August 1979 prior to his resignation from the Court on 20 August 1979.

Erwin

Ten assignments of error appear in the record. Defendants bring nine of them forward on appeal in seven arguments. After careful consideration of each of the assignments of error in the record before us, we conclude that the orders entered by the trial court were proper in all respects and affirm both orders.

Constitutional Question

Defendants contend that application of the licensing requirements of the Day-Care Facilities Act of 1977 to their day-care centers amounts to State prohibition of the free exercise of religion and is therefore unconstitutional. We do not agree.

The Act in question provides in part:

"ยง 110-88. Powers and duties of the Commission. -- The Commission 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 Commission 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 Commission 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 Commission.

(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 Secretary of Administration finds, and the Commission 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 Commission shall be empowered to issue two grades of licenses: an "A" license for compliance with the provisions of the Article, and an "AA" license for those licensees meeting the voluntary higher standards promulgated by the Commission.

(8) To develop a procedure by which the Department [of Administration] shall furnish such forms as may be required for implementation of this Article.

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

At the outset, we note: (1) that the wording of the Act in question does not grant to the State any authority to interfere with the religious belief or freedom of defendants; (2) that the day-care licensing requirements speak only to minimum standards of health and safety and do not interfere with any religious practices or contain any educational requirements for staff or children; (3) that all of the defendants have heretofore been licensed

censed by the Commission without any objections; and (4) that defendants do not contend or show that it is contrary to their sincere religious belief to seek licenses.

The First Amendment of the United States Constitution, applicable to the State through the Fourteenth Amendment of the said Constitution, prevents State enactment of laws prohibiting the free exercise of religion. Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900, 128 A.L.R. ...


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