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Link to Final Agency Decision/Reconsideration OAH Docket No. 12-1800-17207-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the Revocation of the License of Victoria Stovall and Gloria Pargo to Provide Family Child Care |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge (ALJ) Steve M. Mihalchick at 9:30 a.m. on August 15,
2006, at the Office of Administrative Hearings,
Rebecca S. Morrisette, Assistant Hennepin
County Attorney,
Whether
the family child care license of Licensees should be revoked based upon the
failure to follow the terms of their conditional license?
The
Administrative Law Judge concludes that it should.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Ms. Stovall resides in a duplex on
2. Ms. Stovall has been licensed since December 1997.[2] She has a class A license and operates her daycare 24 hours per day.[3] Ms. Stovall currently has four children (two infants and two preschoolers) in her care during regular business hours (1st shift). Two other children, ages 10 and 2, come to the daycare at 7:00 p.m. and stay until the early hours of the morning. Ms. Stovall cares for the daycare children from approximately 6:00 a.m. until 3:00 p.m., at which time Ms. Pargo takes over until 11:00 p.m.[4] Ms. Stovall then returns to the daycare to care for the children. The Licensees have back-up providers in the event either one of them cannot cover her shift in the daycare.
3. Licensees have a history of violations dating back to 1998. On December 18, 1998, the Department issued Ms. Stovall a one-year conditional license for the following violations: failing to submit background studies for her substitute caregivers, exceeding capacity limits, failing to complete required paperwork, transporting a child to school without a parental consent form, failing to have a working telephone in the daycare, failing to complete required training, and failing to provide structured, age-appropriate activities for children in her care.[5]
4. On April 28, 2000, the Department issued Licensees another one-year conditional license for similar violations regarding failure to complete additional training as a term of the previous conditional license as well as for re-licensure, failure to maintain complete admissions and provider records, failure to provide structured, age-appropriate activities for the children, and leaving the children in the vehicle while she ran errands.[6]
5. At a relicensing home visit on March 11, 2002, the County licensing worker interviewed Ms. Stovall and inspected the daycare premises.[7] At that time, Ms. Stovall had completed only one hour of sudden infant death syndrome (SIDS) training and was still short five hours.
6. Late in 2002, Ms. Pargo had back surgery and was not a co-applicant on the license for several months.[8]
7. The Department placed Ms. Stovall’s license on conditional status yet again on March 28, 2003, as a result of repeated complaints of failure to provide adequate supervision to the children in her care.[9] One of the conditions of the license required each Licensee to complete six hours of training in the areas of safety and supervision by June 20, 2003.[10]
8. On October 27, 2003, the County visited the daycare to interview Ms. Pargo regarding her application to become a co-applicant on the license again.[11] Ms. Pargo was reinstated as a co-applicant on December 23, 2003.
9. During a licensing renewal visit on March 15, 2004, the Hennepin County licensing worker assigned to Licensees determined that neither of the Licensees had completed the additional training required by the March 28, 2003 Order of Conditional License or the six hours of training required for relicensure.[12] As a result, the licensing worker issued a correction order to Licensees, giving them until April 1, 2004, to complete their training requirements.[13]
10. At a drop-in visit to the Licensees on November 1, 2004, the licensing worker spoke with the Licensees and determined that neither of them had completed all of their training requirements.[14] The licensing worker issued another correction order to the Licensees.[15] The deadline to complete part of the training was December 1, 2004, with the remainder to be completed by January 1, 2005.[16]
11. By letter to the Licensees dated December 23, 2004, the licensing worker confirmed that both Licensees had completed much of their required training classes, but that Ms. Stovall was still short two hours and Ms. Pargo was short eight hours of training.[17] The licensing worker also expressed concern about not being able to contact the Licensees in person or by telephone.[18]
12.
Based upon a complaint phoned in on July 7,
2005, about children playing unsupervised in the driveway of the daycare, the
licensing worker visited the Licensees’ daycare on July 11, 2005.[19] The worker testified that Ms. Pargo was
outside the daycare on the driveway visiting with a friend and that Ms. Stovall
was not present.
13.
In the summer of 2005, the
14.
On October 3, 2005,
15.
16. Early in 2006, the Licensees started a remodeling project in the downstairs bathroom used by the daycare children. Most of the work was done during the evening and night hours, and the project lasted for several months. During this time, all of the daycare children’s parents, except for one, made arrangements to have their children cared for elsewhere. The building materials and tools were stored in either a locked closet or behind a child-proof gate.
17.
The
18. On February 16, 2006, the Department issued an Order of Revocation based on the County’s recommendation and the violations listed on the correction order dated February 1, 2006.[27] The Order of Revocation notified Licensees of their right to appeal. On or about February 24, 2006, the Department received Licensees’ notice of appeal.
19. On March 23, 2006, the Department served a Notice of and Order for Hearing on the Licensees, setting a hearing date for July 13, 2006, before the undersigned Administrative Law Judge. The matter was subsequently rescheduled for August 15, 2006.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1.
The Administrative Law Judge and the Commissioner of Human
Services have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50
and 245A.08.
2.
The Department gave proper and timely notice of the hearing
in this matter.
3.
The Department has complied with all relevant procedural
requirements.
4.
Minn. R.
9502.0385 requires all daycare providers to complete six hours of training per
year after the initial year of licensure in one or more of the subject areas
specified in subpart 4.[28]
5.
6.
Supervision is
defined as “a caregiver being within sight or hearing of an infant, toddler, or
preschooler at all times so that the caregiver is capable of intervening to
protect the health and safety of the child.”[29]
7.
During construction
or remodeling, children shall not have access to dangerous construction or
remodeling areas within or around the residence.[30] Similarly, all electrical receptacles
accessible to children under first grade must be tamper-proof or shielded when
not in use.[31]
8. Minn. Stat. § 245A.06, subd. 1 states:
(a) If the commissioner finds that the . . . license holder has failed to comply with an applicable law or rule and this failure does not imminently endanger the health, safety, or rights of the persons served by the program, the commissioner may issue a correction order and an order of conditional license to . . . the license holder. When issuing a conditional license, the commissioner shall consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights of persons served by the program. . . .
(b) Nothing in this section prohibits the commissioner from proposing a sanction as specified in section 245A.07, prior to issuing a correction order or conditional license.
9. Failure to comply with a correction order or conditional license allows the Commissioner to impose a fine and order other licensing sanctions pursuant to Minn. Stat. § 245A.07.[32]
10. Before suspending, revoking, or making conditional a license, Minn. Stat. § 245A.04, subd. 6, requires the Commissioner to consider the facts, conditions, and circumstances concerning the program’s operation and the well-being of persons served by the program. Furthermore, a risk of harm analysis must be performed based upon the results of any statutorily required background studies.
11. Minn. Stat. § 245A.07, subd. 1, requires the Commissioner to consider “the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights” of persons in a licensee’s program before applying sanctions under Minn. Stat. § 245A.07.
12. Minn. Stat. § 245A.07, subd. 3, allows the Commissioner to suspend or revoke a license, or impose a fine if a license holder fails to comply with the applicable laws or rules.
13.
The burden of
proof first lies with the Commissioner, who may demonstrate reasonable cause
for the action taken by submitting statements, reports, or affidavits to
substantiate the allegations that the licensees failed to comply fully with
applicable law or rule. If the
Commissioner demonstrates that reasonable cause existed, the burden shifts to
the licensee to demonstrate by a preponderance of the evidence that they were
in full compliance with those laws or rules allegedly violated, at the time
that the Commissioner alleges the violations occurred.[33]
14.
Based on these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the Commissioner AFFIRM the revocation of the family child care license of Victoria Stovall and Gloria Pargo.
Dated: October 19th, 2006
/s/
Steve M. Mihalchick
|
STEVE
M. MIHALCHICK Administrative
Law Judge |
Reported: Taped,
four tapes
No
transcript prepared
This report is a recommendation, not a final decision. The Commissioner of Human Services will make
the final decision after a review of the record. The Commissioner may adopt,
reject or modify these Findings of Fact, Conclusions, and Recommendations.
Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be
made until this Report has been made available to the parties
to the proceeding for at least ten days. An opportunity must be afforded to each party adversely
affected by this Report to file exceptions and present argument to the
Commissioner. Parties should contact Cal Ludeman, Acting Commissioner, Appeals
and Regulations Division,
If the Commissioner fails to issue a final decision within
90 days of the close of the record, this Report will constitute the final
agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of
exceptions to the Report and the presentation of argument to the Commissioner,
or upon the expiration of the deadline for doing so. The Commissioner must
notify the parties and the Administrative Law Judge of the date on which the
record closes.
Under Minn. Stat. § 14.63, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
The Commissioner has fulfilled his burden to show that the Licensees did not comply fully with the law and rules regarding supervision, on-going training, and the physical environment of the daycare. The evidence and testimony put forth by the Licensees does not demonstrate that the Licensees were in full compliance with those laws and rules at the time the Commissioner alleges that violations occurred.
Before suspending, revoking, or making conditional a license, the Commissioner must consider the facts, conditions, and circumstances concerning the daycare’s operation and the well-being of the children served by the program. The Commissioner must also consider the nature, chronicity, or severity of the violations, and the effect that those violations have on the children enrolled in the daycare.
The Licensees argued that revocation of their family child care license is overly harsh and unwarranted given the types of violations for which they were cited and the long period of time since those violations occurred. As to the required training to reduce the risk of Shaken Baby Syndrome, Licensees testified that they attempted to enroll in one of the training sessions prior to the January 1, 2006 deadline, but because of the short period of time to complete the training, all of the classes were full. Furthermore, Licensees argued that, ultimately, they did complete the training by March 23, 2006.
Additionally, the Licensees asserted that the physical environment violations for which they were cited during their remodeling project were minor or that the materials were not accessible to the children in the daycare. Ms. Stovall testified that she was not aware that she could contest the citations in the correction orders.
Finally, the Licensees stated that they offer good, quality care to the children in their daycare. Many of the children’s parents testified at the hearing to that effect. The Licensees testified that they consider the children and their parents like family and that they would never allow harm to come to the children.
The testimony from the County licensing worker and the Licensees as to whether Ms. Pargo was outside the duplex when the County licensing worker arrived at the daycare on July 11, 2005, is inconsistent and contradictory. The same is true for the testimony regarding whether one of the children was behind the gated area where the construction materials were located during the licensing visit on January 31, 2006.
This is a difficult case. The Licensees obviously enjoy what they do and have great affection for the children in their daycare. There is also a long history of repeat violations and complaints against the Licensees. While there were some recent violations, there were also mitigating factors, and the Commissioner may wish to consider imposing a lesser sanction than revocation.
S. M. M.
[1]
Ms. Stovall and Ms. Pargo are both natives of
[2] Ms. Stovall’s license to provide family child care was revoked in 1989. She waited the statutorily required amount of time and then reapplied for licensure.
[3] Ex. 30.
[4] Testimony of Ms. Stovall.
[5] Ex. 6.
[6] Ex. 7.
[7] Ex. 33.
[8] Ex. 31.
[9] Exs. 8-11.
[10] Ex. 10. The hearing record is inconsistent about whether Ms. Pargo was a co-applicant on the license at that time.
[11] Ex. 31.
[12] Ex. 13.
[13] Exs. 14 and 15.
[14] Ex. 32.
[15] Ex. 17.
[16] Ex. 16.
[17] Ex. 20.
[18] A complaint in November 2004 about the daycare lacking a telephone resulted in a correction order dated November 30, 2004. Exs. 18 and 21.
[19] Ex. 22.
[20]
Ex. 23.
[21]
[22] Ex. 1.
[23] Ex. 46.
[24] Ex. 25.
[25] Ex. 26.
[26] Ex. 27.
[27] Ex. 29.
[28] Subpart 4 includes subjects such as child development, child abuse, communicable disease prevention and control, parent and provider relationships, communication skills, community services and resources for children, methods of guiding behavior or discipline, home and fire safety and child injury prevention, learning activities, observation and assessment of children’s needs, care of bilingual or non-English-speaking children, care of special needs or gifted children, nutrition and food safety, and business management.
[29]
[30]
[31]
[32] Minn. Stat. § 245A.06, subd. 3.
[33] Minn. Stat. § 245A.08, subd. 3(a).