state of rhode island superior court ... - dr. day care...things, flexible schedules to accommodate...

STATE OF RHODE ISLAND SUPERIOR COURT

PROVIDENCE, SC.

BOCA RI, FIRST STEP DAYCARE, INC., :

ONCE UPON A TIME ACADEMY, LLC, :

JAMESTOWN EARLY LEARNING :

CENTER, INC., LORI’S LITTLE LAMBS, :

CHRISTIAN DAY CARE CENTER, INC., :

JUNE CLEMENTBETHANY BAPTIST CHURCH d/b/a :

PUSS ‘N BOOTS, :

DR. DAY CARE WEST :

WARWICK, INC., :

DR. DAY CARE -– :

PAWTUCKET, INC., :

DR. DAY CARE, INC., :

DR. DAY CARE, INC. IV, :

CHRISTINE :

RIGOLLET d/b/a CANDY :

CANE :

PRESCHOOL, THE NEIGHBORHOOD : :

NURSERY, INC., THE RED BRICK NURSERY :

SCHOOL, INC., and THE LEARNING :

GARDEN, :

INC. and SILVEIRA :KINDERGARTEN AND :

NURSERY, INC. :

Plaintiffs, :

:

v. : C.A. No.: PC 14-

:

STATE OF RHODE ISLAND, :

JANICE E. DEFRANCES, in :

her official capacity as Director of :

the Department of Children, :

Youth & Families, and KEVIN SAVAGE :

in his official capacity as Administrator :

of Licensing and Regulation :

Defendants. :

VERIFIED COMPLAINT AND DEMAND FOR

DECLARATORY AND INJUNCTIVE RELIEF

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Plaintiffs, BOCA RI, (BOCA), First Step Daycare, Inc., Once Upon a Time Academy,

LLC, Jamestown Early Learning Center, Inc., Lori’s Little Lambs Christian Day Care Center,

Inc., June ClementBethany Baptist Church d/b/a Puss N’ Boots, Dr. Day Care West Warwick,

Inc., Dr. Day Care – Pawtucket, Inc., Dr. Day Care, Inc., Dr. Day Care Inc., IV. Christine

Rigollet d/b/a/ Candy Cane Preschool, The Neighborhood Nursery, Inc., The Red Brick Nursery

School, Inc., and The Learning GardingGarden, Inc., and Silveira Kindergarten and Nursery, Inc.

(collectively, “BOCA” or the “Plaintiffs”) for their complaint against Defendants, STATE OF

RHODE ISLAND, Janice E. DeFrances, in her official capacity as Director of the Department

of Children, Youth & Families and Kevin Savage, in his official capacity as Administrator of

Licensing and Regulation (collectively, “DCYF” or the “Defendants”) alleges, by and through its

attorneys, on personal knowledge as to itself, and otherwise on information and belief, as

follows:

PRELIMINARY STATEMENT

1. For years, early child day care centerschildhood education centers

(“CDCCsECECs”) have provided safe and nurturing educational and socialization opportunities

for thousands of students throughout Rhode Island. These CDCCsECECs, operating under a

fully developed framework of federal, state, and local regulations and the standards of numerous

accreditors, care for and teach young people in safe and secure physical environments. The

quotidian operation of these CDCCsECECs sustains the lifeblood of communities across the

Rhode Island.

2. Now, DCYF has overstepped its authority under R.I. Gen. Laws § 42-72.1 –

Licensing and Monitoring of Child Care Providers and Child-Placing Agencies; R.I. Gen. Laws

§ 40-13.2 – Certification of Child Care and Youth Serving Agency Workers; and R.I. Gen.



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Laws § 23-28.15 – Child Care Programs (the “Child Care Statutes”) by issuing an unnecessary

and unwarranted new scheme of crippling regulations against CDCCsECECs through its

promulgation in November 2013 of the Child Care Program Regulations for Licensure and

School Age Program Regulations for Licensure (the "Regulations") that conflict with the pre-

existing oversight of CDCCsECECs. If not set aside, the Regulations as promulgated will impair

the ability of CDCCsECECs to operate in Rhode Island, and harm the very students (and parents)

that the Regulations should protect by denying them safe and reliable day care opportunities.

3. The Regulations must be consistent with R.I. Gen. Laws § 42-35.1-1 et seq., and

the United States Constitution. These Regulations are not. During the rulemaking process,

certain CDCCsECECs, and interested parties tried to educate DCYF concerning (a) the benefits

CDCCsECECs confer on students and the community; (b) the potential for more informed and

consistent regulations: and (c) the myriad problems that would arise should the Regulations be

issued as they were with numerous gratuitous and constitutionally impermissible provisions.

Despite these efforts, DCYF issued the Regulations in November of 2013, which were to take

effect without further notice or any meaningful transition period on July 1, 2014.

4. A true and accurate copy of the Regulations is attached as Exhibit A and

incorporated by reference.

5. After numerous complaints from the CDCCsECECs, and recognizing the

herculean task it had imposed on the CDCCsECECs, DCYF relented, and extended the effective

date of the Regulations to November 11, 2014.

6. The Regulations will becomebecame effective on November 11, 2014.

7. Currently, renewal of licenses to operate the CDCCsECECs is conditioned on the

CDCCsECECs complying with the Regulations. If the CDCCsECECs do not comply with the

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Regulations on November 11, 2014, their licenses could expire, and they will not be allowed to

operate their day care facilities.

8. A “variance” process is in effect but so far only a handful of variances have been

granted by DCYF and all of those variances are short term variances of only a matter of a few

months in which the Plaintiffs must still obtain full and complete compliance with the

Regulations.

9. Plaintiffs and BOCA members operate established CDCCsECECs as business

enterprises.

10. Plaintiffs and BOCA members are subject to long-term lease arrangements that

are not easily altered or terminated.

11. Plaintiffs and BOCA members are subject to financing arrangements with

financial institutions that were premised on a certain level of income, which was in turn based

upon a certain allowable census in each child day care facility.

12. Plaintiffs and BOCA members have been licensed by DCYF for many years

under existing rules and regulations prior to the Regulations.

13. Plaintiffs’ and BOCA members’ facilities were constructed and outfitted under

the pre-existing version of the regulations.

14. The effect of the Regulations will be to reduce the enrollment census in each of

the CDCCsECECs.

15. The effect of the Regulations will be to force the CDCCsECECs to expend tens of

thousands of dollars of their own funds that the CDCCsECECs do not have and cannot borrow

and which could place them in jeopardy with existing loans from various financial institutions

including but not limited to loans by Small Business Association.

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16. The CDCCsECECs enroll numerous children who receive child care subsidies

from the Rhode Island Department of Human Services. The subsidies are provided conditioned

upon the CDCCsECECs charging a lower fee for day care to these recipientsreceiving a

substantially lower tuition from the state, thaen private tuition.

17. The effect of the Regulations will be to force the CDCCsECECs to jettison the

children receiving subsidized payments so that the CDCCsECECs can retain a census of private

paying students and maintain the economic viability of their businesses.

18. Persons engaged in operating child day care facilities are required to obtain a

license from DCYF.

19. Rhode Island General Laws § 42-35-7 provides, in part, that “The validity or

applicability of any rule may be determined in an action for declaratory judgment in the

Ssuperior court Court of Providence County, when it is alleged that the rule, or its threatened

application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or

privileges of the plaintiff.”

20. As set forth in detail below, the Regulations should not stand for at least the

following four reasons:

First, the regulations exceed DCYF's authority and are contrary to

R.I. Gen. Laws § 42-35.1-1 et seq.

Second, they are arbitrary, capricious and otherwise unlawful,

because there is no factual nexus between the purported aims of the

regime and the promulgated Regulations. Indeed, among other

things, the Regulations adopt metrics and other requirements with no

supporting evidentiary basis. Even if the Regulations had been

supported by evidence and consistent with pre-existing regulations

such that compliance could be reasonably achieved - and they were

not - DCYF arbitrarily made the Regulations effective almost

immediately upon their promulgation, without allowing reasonable

time for compliance.

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Third, the Regulations interfere with the legal rights and privileges

of the Plaintiffs and BOCA in violation of R.I. Gen. Laws § 42-35-7.

Fourth, the Regulations violate the Plaintiffs’ and BOCA’s rights to

equal protection, just compensation and due process under the Rhode

Island and United States constitutions.

21. If left to stand, the Regulations would, at a minimum, unduly burden small

businesses operating as CDCCsECECs, limit choice of CDCCsECECs, and force the poorest

parents to forego affordable child day care and employment opportunities.

22. Accordingly, this Court should vacate and set aside the Regulations on

CDCCsECECs.

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PARTIES

23. BOCA is a nonprofit membership organization of private sector CDCCsECECs.

BOCA is located in Rhode Island, incorporated under Rhode Islandwith the Rhode Island

Secretary of State and has over 20 40 members. Plaintiffs are members of BOCA.

24. BOCA members serve a diverse student population of children and youth,

including, but not limited to Latino, Caribbean, African-American, Caucasian and Asian

studentsdiverse socioeconomic and ethnic backgrounds.

25. BOCA members operate CDCCsECECs which are overwhelmingly women

owned, and women operated enterprises.

26. For convenience and service to parents, BOCA members offer, among other

things, flexible schedules to accommodate working caregivers.

27. All of BOCA's members are directly subject to the new Regulations. As such,

they face imminent and continuing harm as a result of being forced to attempt to comply with

them. Each of BOCA's members would have standing to sue Defendants in its own right. This

lawsuit seeks to protect BOCAs’ members’ interests in promoting access to affordable child day

care for all.

28. Plaintiffs are Rhode Island corporations and CDCCsECECs.

29. Defendant JANICE E. DEFRANCES, is sued in her official capacity as Director

of the Department of Children, Youth & Families.

30. Kevin Savage is the Administrator of Licensing and Regulation inter alia,

CDCCsECECs.

31. Defendant KEVIN SAVAGE, is sued in his official capacity as Administrator of

Licensing and Regulation of the Department of Children, Youth & Families.

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32. DCYF’s authority to make rules and regulations interpreting the provisions of the

Child Care Statutes is explicitly limited and circumscribed by R.I. Gen. Laws § 42-35.1-1 et seq.,

entitled “Small Business Regulatory Fairness in Administrative Procedures” (the “Small

Business Act”).

33. Defendant JANICE E. DEFRANCES is the Director of the Department of

Children, Youth and Families and is sued in her official capacity. Pursuant to section 42-72-1 of

the Rhode Island General Laws, Director DeFrances is responsible for administering certain

child welfare services and programs, including services and programs provided and administered

by DCYF, and assuring that all such services and programs operate in conformity with

constitutional, statutory, and regulatory requirements. Director DeFrances serves by

appointment of the Governor. Director DeFrances maintains her principal office at the

Department of Children, Youth and Families, 101 Friendship Street, Providence, Rhode Island,

02903.

JURISDICTION AND VENUE

34. This action arises under the United States Constitution, the Rhode Island

Administrative Procedure Act, and the Small Business Act.

35. Venue is proper in this Court because the Defendants are located within this

judicial district and perform their political duties in this judicial district, and a substantial part of

the events or omissions giving rise to this action occurred in this judicial district.

FACTUAL ALLEGATIONS

A. The Regulations’ Stated Purpose Do Not Justify The Regulations.

36. CDCCsECECs operate in a highly-regulated marketplace supervised by DCYF

under the Child Care Statutes.

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37. Written comments submitted during, or in connection with the regulatory

rulemaking process, including two public hearing hearings sponsored by DCYF held in January

2014, demonstrated the intricate workings of the pre-existing federal, state, and accreditation

agencies that have traditionally overseen CDCCsECECs.

38. DCYF vaguely posits that the Regulations’ purpose is to:

38.

safeguard the well-being of the children served. Granting a

license means there is clear evidence that the building and

grounds are safe, staff are appropriately trained and responsible,

and the program reflects an understanding of the healthy growth

and development of children. The license provides assurance to

families and the community that the children are cared for in a

safe, healthy environment with appropriate activities, time

schedules, food, materials and equipment, and that staff are

consistently available to encourage and support the children's

physical, social, emotional and intellectual growth.

39. DCYF fails to indicate in any meaningful way what how the prior regulations

failed to fulfill these goals, or how the new Regulations will do so better. DCYF provides no

explanation or justification for any finding that CDCCsECECs doing business in Rhode Island

fail to safeguard the well-being of the children served, or fail more often than home based

CDCCsECECs, which remain wholly exempt from the Regulations or are subject to different and

much less stringent set of regulations.

40. DCYF nowhere provides a meaningful explanation or substantial evidence

showing how the specific, enacted Regulations effectuate their stated purpose or address any

allegedly widespread but unstated acts. Instead, the Regulations impose sweeping, arbitrary

requirements that unduly burden CDCCsECECs and limit student and parent opportunities, and

are not tailored to suit their purported aim.

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B. The Rulemaking Record Contains Scant Evidence That DCYF Considered

The Abundant Testimony That Was Offered During Rulemaking

Regarding Problems Created By the Proposed Regulations.

41. DCYF issued proposed regulations in November 2013. Because the proposed

regulations were neither specific, rational, nor consistent with prior regulations, they provoked

substantial commentary from CDCCsECECs and the students families they serve.

42. CDCCsECECs were uniquely positioned to provide informed commentary to help

DCYF address failings in the proposed regulations, because the CDCCsECECs knew better than

anyone the preexisting regulatory background, the benefits they provide to students and parents,

and the way new regulations could negatively impact both commerce and the student experience,

and disrupt parental employment opportunities.

43. The relevant public record as of the filing of this Complaint was composed of the

DCYF's proposed regulations, press releases, and Small Business Impact Statement, as well as

testimony from public hearings, written testimony submitted during the rule-making process, and

the final Regulations.

44. Representatives from CDCCsECECs submitted written comments to DCYF

offering informed comments to assist the DCYF's Office in promulgating rational,

comprehensible, and enforceable regulations. Witnesses identified multiple problems with the

overarching regime, including that the regulations (a) lacked clear definitions of acceptable and

unacceptable conditions; and (b) deviated from the existing and well-established regulatory

structure in confusing ways; (c) would result in devastating financial costs . Witnesses further

identified the wide gulf between the purported objectives of the rule-making and specific

proposed regulations, including the following information that the Regulations would result in

severe reductions in the number of children allowed to be enrolled in individual CDCCsECECs:

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Center Name: Current License

Capacity total #:

New License

Capacity Total #:: Change %

First Step Day Care, Inc. 65 41 -24 -37%

Once Upon a Time Academy, LLC 38 30 -8 -21%

Jamestown Early Learning Center, Inc. 64 35 -29 -45%

Lori's Little Lambs Christian Day Care Center, Inc. 69 60 -9 -13%

June ClementBethany Baptist Church d/b/a Puss ‘n

Boots 30 29 -1 -3%

Dr. Day Care West Warwick, Inc. 88 64 -24 -27%

Dr. Day Care West Warwick, Inc. (Cumberland

Location) 55 42 -13 -24%

Dr. Day Care – Pawtucket, Inc. 165 152 -13 -8%

Dr. Day Care, Inc. 60 49 -11 -18%

Dr. Day Care, Inc., IV 230 145 -85 -37%

Candy Cane Preschool 61 57 -4 -7%

Neighborhood Nursery 20 18 -2 -10%

The Red Brick Nursery School, Inc. 69 67 -2 -3%

Silveira Kindergarten and Nursery, Inc. 82 73 -9 ???-11%

Total Enrollment Loss to these BOCA Centers: -23824734

Average Loss -2119%

45. In summary, 238 24734 children, each generating an average of $10,000 per year

of tuition payments results in a $2,380340,000.00 loss of revenue to the small business Plaintiffs

and BOCA. This figure does not include the additional costs of the mandated structural changes

to the child day care facilities. It also does not take into account the loss of jobs to CDCCECEC

employees due to staff reductions. It also does not take into account the several other licensed

CDCCsECECs in Rhode Island who are not Plaintiffs in this lawsuit but will still be affected in a

similar way by the Regulations.

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46. In addition, nine (9) other CDCCECEC’s, not named as Plaintiffs herein have

been informed that they must cut their enrollments by a total of 196 students, at an average

percentage reduction of 25%.

47. Further, the large majority85% of centers accept children receiving Department of

Human Services (“DHS”) subsidies. On average there are 12 DHS recipients in each of the

CDCCs. For the 17 18 centers listed here, the new Regulations will cause children receiving

DHS subsidies to lose up to 200 day carethe majority of spots.

48. The rulemaking record contains no evidence that DCYF considered this testimony

from students families and representatives of CDCCsECECs prior to the Regulations becoming

effective, or revised the proposed regulations in light of this evidence.

C. The Regulations Do Not Comply with the Small Business Statute.

49. The Rhode Island Legislature has circumscribed the DCYF's rulemaking authority

under the Child Care Statutes by mandating that issued regulations achieve statutory goals as

effectively and efficiently as possible without imposing unnecessary burdens on small employers

R.I. Gen. Laws § 42-35.1-1(4).

50. The Small Business Statute provides that DCYF produce an economic impact

statement, prior to adoption of the Regulations that includes a description of actions needed by

the small business to meet the requirements of the regulation. R.I. Gen. Laws § 42-35.1-3(b).

51. The Regulations targeting CDCCsECECs are inconsistent with the Small

Business Statute because, prior to enacting the Regulations, DCYF failed to accurately identify

and estimate of the number of the small businesses subject to the proposed regulation; project

reporting, recordkeeping, and other administrative costs required for compliance with the

proposed regulation, including the type of professional skills necessary for preparation of the

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report or record; report the effect or probable effect on impacted small businesses; and describe

any less intrusive or less costly alternative methods of achieving the purpose of the proposed

regulation. R.I. Gen. Laws § 42-35.1-3(a).

52. The Regulations exceed the DCYF's authority and are ultra vires.

53. DCYF's Regulations nowhere claim that they will enhance the fiscal health of

Rhode Island.

54. The mandatory Small Business Impact Statement requires DCYF to produce and

submit an economic impact statement prior to finalizing the Regulations that includes the effect

or probable effect on the impacted small businesses. R.I. Gen. Laws § 42-35.1-3(a)(3).

55. According to the Rhode Island Department of Administration, Office of

Management and Budget the Impact Statement for the Regulations was received by that office on

November 25, 2013.

56. The Regulations were promulgated on November 11, 2013, fourteen (14) days

prior to the time when the Impact Statement was drafted and submitted.

57. DCYF's Small Business Impact Statement nowhere addresses the effect of the

Regulations on the CDCCsECECs. There is no analysis of the cost of compliance with the

Regulations by the CDCCsECECs, or the loss of revenue to the CDCCsECECs or the loss of

access to day care by DHS subsidy recipients. This lack of analysis is not surprising considering

that DCYF merely “reviewed the budget/expenditure reports of two Day Care Centers . . .” out

of the over four hundred and ten (410400) affected CDCCsECECs in the State.

58. DCYF denies that other regulations may conflict with the Regulations,

consciously, but callously, failing to mention the DHS regulations that subsidize child care costs

for underprivileged children.

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59. In another considerable oversight, DCYF fails to acknowledge zoning and other

land use regulations that prohibit wholesale changes to child day care buildings.

60. DCYF is also required to analyze whether the proposed regulation is likely to

deter or encourage the formation of new businesses in Rhode Island.

61. DCYF fails to answer the question. Instead, DCYF pronounces that "the

proposed changes would not encourage or discourage formation of a small business.” (Small

Business Impact Statement).

62. DCYF has presented no facts to support this conclusion.

63. The services the CDCCsECECs provide have a salutary effect on commerce,

because (a) the CDCCsECECs are viable businesses, (b) they help students secure practical

education and socialization opportunities that might not otherwise be available, and (c) they

create opportunities for students’ parents for gainful employment, which benefits Rhode Island

communities.

64. CDCCsECECs service students of all social strata, and can make the difference

between an unemployed individual, and a person who is able to join the workforce and make a

meaningful contribution.

65. By the DCYF's own account, the Regulations impose costs upon four hundred and

ten (410) small businesses that operate in Rhode Island.

66. DCYF has deliberately misrepresented and minimized the staggering financial

impact of the Regulations on the CDCCsECECs and on the population that they service.

67. The DCYF has presented no facts and offered no analysis to support its opinion.

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68. For the small business owners whose schools must now grapple with another set

of regulations, the compliance costs are neither nominal nor insignificant, but are devastating and

may cause their extinction.

69. For these business, invalidating or retaining the Regulations can mean life-or-

death.

70. For example, several owners of CDCCsECECs protested to the Defendants that

the Regulations would drive them to close their businesses.

71. Students closed out of CDCCsECECs by the Regulations will have few, if any,

viable options for education and socialization.

72. DCYF nowhere addresses the likely negative impact that would arise from

CDCCsECECs curtailing or canceling programs or denying enrollment to eligible students,

leading to a shortage of day care opportunities, and parents who are unable to sustain gainful

employment.

73. The economic consequences of the Regulations ripple far beyond the

CDCCsECECs’ walls.

74. Imposing burdens that drive CDCCsECECs out of business will exacerbate

shortages of day care opportunities for students and their parents, put business owners out of

business and the people they employ, out of work.

75. DCYF does not address this impact.

76. Just as the broader community benefits from a more educated, socialized student

body, and from an employable workforce, the community will suffer if the Regulations force

these CDCCsECECs to close or cut back.

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77. The Child Care Statutes were not designed to regulate so arbitrarily and onerously

that valuable businesses have to close their doors and terminate their employees who are mostly

women..

78. The Regulations are all the more unwise when the very businesses they injure are

the businesses that were created to care for children in a safe environment, which enables their

parents to enter and remain in the workforce as valuable employees.

D. The Regulations Are Inflicting Irreparable Harm.

79. The Regulations are causing, and will continue to cause, irreparable harm to

BOCA and its member schools, thereby entitling them to injunctive relief for multiple reasons,

including that the denial of constitutional rights constitutes immediate and irreparable harm.

80. As described above, not only do the Regulations constitute a clear violation of due

process rights, but the looming Regulations and their mandates is causing and will cause turmoil,

expense, and enormous time and effort, as BOCA members struggle to determine how to comply

with the unreasonable unclear and confusing Regulations and take steps to ameliorate their

effects.

81. Significant resources previously devoted to educational offerings for students

must now be diverted to compliance, including engineering and construction costs, legal advice

and interpretation, and litigation that will likely arise as a result of the Regulations’ vague and

overbroad scope.

82. By forcing CDCCsECECs to incur unrecoverable costs or to reduce or eliminate

their enrollment numbers and therefore the educational and socialization opportunities they

provide to students, the Regulations impose unwarranted taxes on CDCCsECECs.

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83. Because it will be very difficult, if not impossible, to avoid any errors and

inconsistencies in complying with these new detailed reporting requirements, BOCA members

are likely to face disproportionate, extreme sanctions.

84. For these and other reasons, the regulations are causing and will continue to cause

BOCA members immediate and irreparable harm, entitling them to preliminary and permanent

injunctive relief.

CLAIMS FOR RELIEF

COUNT I

THE REGULATIONS ARE UNCONSTITUTIONAL

85. Plaintiffs reallege and incorporate the preceding paragraphs as if fully set forth

herein.

86. The Regulations violate the United States and Rhode Island Constitutions, in that

they unlawfully deny CDCCsECECs due process, just compensation and equal protection of the

laws.

87. As applied by DCYF, the Regulations force CDCCsECECs to expend tens of

thousands of dollars to renovate their facilities, obtain variances from municipalities and

permission of landlords, and severely curtail enrollment at their child day care locations.

88. The Regulations do not treat home based child day care facilities in a similar

fashion.

89. The Regulations are not rationally related to a legitimate government purpose, and

discriminate against non-home based CDCCsECECs, treating them differently for no apparent

reason from home based child day care facilities.

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90. For example, non-home based CDCCsECECs with nine (9) children require three

(3) teachers, whereas home based CDCCsECECs with nine (9) children in a home require one

(1) provider.

91. In non-home based CDCCsECECs, a nurse is required if infants are present,

whereas home based CDCCsECECs do not require any nurse in the home.

92. In non-home based CDCCsECECs, infants, toddlers, pre-school and school aged

children must be separated in different rooms, whereas home based CDCCsECECs can have

mixed age groups together, including infant, toddler, pre-school and school aged children.

93. In non-home based CDCCsECECs, an individual file is maintained for each staff

that must contain a personal data sheet or application, job description, fingerprinting

documentation, notarized employment history and criminal record affidavits, health documents,

documentation of qualifications, whereas home based CDCCsECECs merely require that all

members of the providers’ household 18 years and older to undergo a nationwide criminal

records check and clearance of agency activity check. (CPS).

94. In non-home based CDCCsECECs, only preschool and school-aged are allowed

on second floor levels, whereas home based CDCCsECECs any aged children are allowed to be

on second and third floors.

95. In non-home based CDCCsECECs, 45 sq. ft. of usable indoor space are required

for each infant or toddler, and 35 sq. ft. of usable indoor space are required for each pre-school

or school aged child, whereas home based CDCCsECECs are only required to have 35 sq. ft. of

usable indoor space for all age groups of children.

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96. In non-home based CDCCsECECs, 75 sq. ft. of outdoor space per child for at

least 50% of the capacity of the program is required, whereas home based CDCCsECECs are

permitted to utilize outdoor porches and decks first floor and above as outdoor play areas.

97. There is no mandatory minimum enrollment for home based CDCCsECECs,

whereas there is a mandatory minimum enrollment for non-home based CDCCsECECs.

98. In non-home based CDCCsECECs, Infant, toddlers, perpre-school and school-

aged must have separate playgrounds whereas home based CDCCsECECs are not mandated to

have separate playground areas for infant, toddler, pre-school and school aged children.

99. In non-home based CDCCsECECs, playgrounds have to be easily accessible,

whereas home based CDCCsECECs have no similar mandate.

100. Non-home based CDCCsECECs are required to have separate bathrooms and

sinks for children and adults, one toilet for every 10 pre-schoolers, one toilet for every 20

toddlers and school-aged children, whereas home based CDCCsECECs are required to have only

one toilet and sink per home.

101. In non-home based CDCCsECECs, children must be monitored by a staff member

at all times, whereas in home based CDCCsECECs, children are monitored by an in-person

check at least every 10 minutes.

102. In non-home based CDCCsECECs, children are not allowed to sleep on mats and

are only allowed to sleep in cribs whereas at home based CDCCsECECs, children are allowed to

sleep on mats.

103. Non-home based CDCCsECECs are required to transport students in vans or

buses with PUBLIC plates, whereas home based CDCCsECECs can transport students in their

own personal vehicles.

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WHEREFORE, Pplaintiff respectfully requests that the this ccourt enter an Order:

A. Temporarily restraining enforcement of the Regulations pending final disposition

of this case;

B. Preliminarily and permanently enjoining enforcement of the Regulations by the

DCYF;

C. Declaring the Regulations unconstitutional and unenforceable; and

D. Grant Plaintiffs reasonable attorney's’ fees, costs of suit, and such other and

further relief as may be equitable and just.

COUNT II

THE REGULATIONS ARE ARBITRARY AND CAPRICIOUS

104. Plaintiffs reallege and incorporate by reference the allegations of the preceding

paragraphs as if set forth fully herein.

105. DCYF's Regulations are arbitrary, capricious, an abuse of discretion, unsupported

by substantial evidence, untethered to the rules’ stated purpose, and otherwise not in accordance

with law, in violation of the Rhode Island Administrative Procedure Act, the Small Business Act,

because of, among other things, the following: First, DCYF failed to articulate a satisfactory

explanation for the Regulations issued; failed to explain the need for this additional layer of

regulation in light of the preexisting regimes; failed to explain why the Regulations target only

CDCCsECECs; failed to provide a rational connection between the facts found and the

Regulations; failed to properly identify the impact on small business, and issued Regulations that

not only conflict with established metrics and compel false and inaccurate statements, but that

also fail to measure program outcomes in any rational or meaningful way.

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106. Although the regulations are ostensibly intended to aid the Rhode Island's

students families in CDCCsECECs, they impose burdens on only one type of child day care

center – non-home based CDCCsECECs.

107. But non-home based CDCCsECECs are far from the only institutions offering

such services. The same or similar programs and services are offered by home based

CDCCsECECs.

108. Home based CDCCsECECs compete for the same students as non-home based

CDCCsECECs.

109. Rhode Island recognized this in establishing one DCYF Licensing Division,

which has jurisdiction over all CDCCsECECs.

110. There is no rational basis in the record for discriminating against all non-home

based CDCCsECECs by imposing vague and burdensome new requirements, while entirely

exempting their competitors.

111. In so doing, DCYF has made an unsubstantiated distinction that is arbitrary and

capricious.

112. Such failures render the Regulations invalid, because they are arbitrary and

capricious.

112.

WHEREFORE, Plaintiff prays for an order and judgment:

A. Declaring that the Regulations were promulgated by Defendants without statutory

authority; that the Regulations are contrary to the constitutions of the United States and the State

of Rhode Island; and that the Regulations are arbitrary and capricious;

B. Declaring that any action previously taken by Defendant pursuant to the final

Regulations is null and void;

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C. Enjoining Defendants and its officers, employees, and agents from implementing,

applying, or taking any action whatsoever pursuant to the final Regulations;

D. Vacating the final Regulations;

E. Awarding Plaintiffs their reasonable costs, including attorneys' fees, incurred in

bringing this action; and

F. Granting such other and further relief as this Court deems just and proper.

COUNT III

REQUEST FOR DECLARATORY JUDGMENT

113. Plaintiffs reallege and incorporate the preceding paragraphs as if fully set forth

herein.

114. An actual controversy has arisen and now exists between Plaintiffs and Defendant

relating to their respective rights and duties, in that Plaintiffs contend that the Regulations are

invalid and unenforceable, both on their face and as construed by Defendant, whereas Defendant

disputes this contention and contends that the Regulations and their application to Plaintiffs are

valid.

115. Pursuant to R.I. Gen. Laws § 42-35-7, Plaintiffs desire a declaration of Plaintiffs’

rights with respect to the application or non-application of the Regulations to Plaintiffs, with

particular reference as to the legality of enforcing the Regulations that the Defendant threatens.

116. Such a declaration is necessary and appropriate at this time under the

circumstances in order that Plaintiffs may ascertain their rights and duties.

WHEREFORE, Pplaintiff requests a declaratory judgment as follows:

A. The Ccourt declare the respective rights and duties of Pplaintiff and dDefendants

under the Regulations, and by its declaration and judgment the court declare that the Regulations

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have no application to Plaintiffs in this matter or that, if it does, it is unconstitutional, invalid,

and void;

B. The Court award costs of suit incurred; and

C. The Court grant such other and further relief as the court deems just and proper.

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PLAINTIFFS,

By their attorneys,

Stephen A. Izzi (#2928)

Kerin Browning (#7395)

Moses Afonso Ryan Ltd.

160 Westminster Street, Suite 400

Providence, Rhode Island 02903

Ph: (401) 453-3600

November _____, 2014 Fx: (401) 453-3699

VERIFICATION

I, Nancy Beye, as President of BOCA, Inc, first being duly sworn upon oath, do certify as

follows:

I am the President of BOCA, Inc. I declare under penalty of perjury under the laws of the

State of Rhode Island that I have read the above Complaint and I know of my own knowledge

that the facts recited therein are true, except as to those assertions stated upon information and

belief, and as to those assertions, I believe them to be true.

_______________________________

Nancy Beye

STATE OF RHODE ISLAND

COUNTY OF PROVIDENCE

Subscribed and sworn to before me this ____ day of November, 2014.

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_______________________________

Notary Public

My Commission Expires: ___________

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