|
|
|
|
|
OAH 61-1800-17612-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of
the Revocation of the Family Child Care License of Julie Priebe To Provide
Family Day Care under |
FINDINGS OF FACT, CONCLUSIONSAND
RECOMMENDATION |
The above
matter came on for hearing before Administrative Law Judge M. Kevin Snell on
December 13, 2006, at the
Geoffrey A.
Hjerleid, Senior Assistant Olmsted County Attorney,
The issue is whether the Department of
Human Services’ order of revocation of Julie Priebe’s family day care license
should be affirmed because a disqualified individual was residing in her day
care home.
Based on the evidence in the hearing
record, the Administrative Law Judge makes the following:
1.
Julie Priebe
(“Ms. Priebe”) has been licensed to provide family child care services for 21
years, in recent years with a Class C2 license at her home at 5008 Henry Court
SE, Rochester, Minnesota, Olmsted County, Minnesota 55904 (“the home”).[1] Ms.
Priebe provides day care services on a weekday basis, typically from 6:30 a.m.
to 4:30 p.m., for seven families, both full and part-time, for children ranging
from 11 months to 9 years old.[2]
2.
Ms. Priebe has
been a licensed day care provider for 21 years.[3] She has
had no licensing violations and no correction orders, with the exception of
those at issue in this proceeding.[4]
3.
Parents of
children, including two special needs children,[5] in Ms.
Priebe’s care testified and made written submissions that their children have
received excellent, safe, loving care, resulting in healthy development while
being cared for by her.[6]
4.
An adult son,
Michael Priebe, moved into the daycare home in August 2004. On November 16,
2004, Ms. Priebe was issued a correction order for failure to notify the County
of a change in household membership and have a background check on the new
occupant. The background check was completed on November 18, 2004. She signed
the correction order on November 22, 2004. [7]
5.
In November
2005, the son Michael Priebe moved out of the home and an adult female renter,
Lisa (last name unknown) moved into the home.[8]
6.
During this
time period, Ms. Priebe was going through or had just gone through a divorce,
had certain medical problems that might require surgery. Lisa and Ms. Priebe’s
mother were available to provide or assist in providing care to the children.
Lisa was current in CPR and first aid training, and
7.
In January
2006, another adult son, Patrick Priebe, moved into the home.[10] Patrick
Priebe had no contact with or access to the daycare children during their
presence at the daycare home.[11]
8.
Lisa is also
Patrick Priebe’s girlfriend.[12]
9.
Ms. Priebe
first notified the County of the household changes in noted in Finding Nos. 4
and 5 above by submitting background check forms for Lisa and Patrick Priebe on
March 9, 2006, in preparation for an upcoming March 21, 2006, relicensing visit
by Ms. Jensen.[13]
10.
The background
checks on Patrick Priebe and Lisa were completed. Patrick Priebe’s background
check disclosed that he had been convicted of felonies: on October 3, 2005, for
violating and order for protection and forgery; and on February 16, 2001, for
receiving stolen property.[14] He is
therefore disqualified from having direct contact with children in a licensed
daycare. The County drafted letters dated March 17, 2006, to Ms. Priebe and
Patrick Priebe notifying them of Patrick Priebe’s disqualification from direct
contact with or access to daycare children. Both letters were hand delivered to
Ms. Priebe by Ms. Jensen during the relicensing visit on March 21, 2006.[15]
11.
Also on March
21, 2006, Ms. Jensen issued a correction order to Ms. Priebe regarding the
failure to notify the county of the change in residents and having a
disqualified person living in the home. The county gave her until March 31,
2006, to correct the deficiencies. It also advised Ms. Priebe that Patrick
Priebe could stay at Ms. Priebe’s home on weekends.[16] Ms.
Jensen and Ms. Priebe discussed and understood that Patrick Priebe would live
at Ms. Priebe’s sister’s residence.[17]
12.
On March 24,
2006, Ms. Priebe signed the Correction Order, notifying the County that Lisa
had signed other documents and agreeing that Patrick Priebe would only be at
the home on weekends.[18]
13.
On March 22,
2006, Patrick Priebe requested reconsideration of the disqualification
decision.[19]
14.
Ms. Priebe
helped move her son and his belongings to her sister’s residence at
15.
Patrick Priebe
resided with Ms. Priebe’s sister, Jennifer Mewhorter, from about March 25,
2006, through May 31, 2006.[22] He
lived in a downstairs bedroom, where he could come and go as he pleased through
a kitchen door, with the understanding that the
“house not lose its typical routine.”[23]
16.
Beginning the
end of March 2006, Ms. Priebe had an opportunity to help a friend and earn
additional needed money that caused her to be absent from her home three or
four nights a week, returning at 6:00 a.m. on the mornings after workweek night
absences to be ready for her daycare day that started at 6:30 a.m.[24]
17.
Unknown to Ms.
Priebe, Patrick Priebe would come to her home on some nights during her
absences to spend the night with his girlfriend Lisa, arriving after Ms. Priebe
had left, and departing before her return.[25]
18.
On Monday,
April 24, 2006, at 8:20 p.m. Patrick Priebe’s parole officer, Jeremy Ernste,
visited with Patrick Priebe at Ms. Priebe’s home.[26]
19.
On May 1, 2006, at 12:37 p.m., Ms. Jensen
talked to Ms. Priebe regarding her receipt of the signed correction orders,
other matters and confirmed with Ms. Priebe that Patrick Priebe was not living
in the home and received Ms. Priebe’s sister’s address, where Patrick was
living.[27]
20.
On May 1,
2006, at 12:40 p.m., Ms. Jensen talked to Patrick Priebe’s parole officer,
Jeremy Ernste, about the April 24, 2006, visit and noted that: “JE says he is
living at Julie’s.”[28]
21.
During another
May 1, 2006, telephone conference with Ms. Jensen, Ms. Priebe first learned
that her son had occasionally been staying overnight during her absences from
the home. She confronted Patrick Priebe and Lisa with the information from Ms.
Jensen. Lisa “rolled her eyes” and admitted that Patrick Priebe was staying
overnight one or two nights during the week during Ms. Priebe’s absences.
Patrick also admitted what had been going on and that he would also be at Ms. Priebe’s
house from 7:30 p.m. to 10:30 p.m. sometimes during Ms. Priebe’s absences so as
to not disrupt the Mewhorter household routine. Ms. Priebe told Patrick that he
could no longer even stay on weekends or visit as he had been and told Lisa
that she would have to move out of the home no later than June 1, 2006, which
she did.[29]
22.
Ms. Jensen did
not communicate again with Ms. Priebe until her May 16, 2006, letter advising
her of the recommendation of license revocation.[30]
23.
After Lisa’s
departure from the home, Ms. Priebe changed the locks at the home at the
beginning of June 2006, so none of the previous unknown visits by her son could
happen again.[31]
24.
On May 11,
2006,
25.
On May 16,
2006,
“This
recommendation was made because we have information that Mr. Patrick Priebe
continues to reside in your home.[33]
26.
On September
28, 2006, the Department issued to Patrick Priebe its decision not to set aside
or grant a variance to his disqualification.[34]
27.
Patrick Priebe
did not appeal the adverse reconsideration decision.
28.
On September
28, 2006, the Department issued to Ms. Priebe its Order of Revocation.[35]
29.
On October 6,
2006, Ms. Priebe filed a timely appeal from the order of Revocation and
requested an appeal hearing pursuant to Minn. Stat. § 245A.07.[36]
30.
On October 13,
2006, Jerry Kerber, Director, Division of Licensing, Minnesota Department of
Human Services, executed a Notice of and Order for Hearing scheduling a
contested case hearing on December 13, 2006.
31.
On November
13, 2006, the Administrative Law Judge issued a Protective Order, which was
served upon the parties by mail on November 14, 2006.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2. The Department gave proper notice of the hearing, and all relevant substantive and procedural requirements of law or rule have been fulfilled.
3. 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. Notice of any such action must be given by certified mail and must state the reasons for the sanction.
4. Under Minn. Stat. § 245A.08, subd. 3, 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 license holder failed to comply fully with applicable law or rule. If the Commissioner demonstrates that reasonable cause existed, the burden shifts to the license holder to demonstrate by a preponderance of the evidence that she was in full compliance with those laws or rules allegedly violated, at the time that the Commissioner alleges the violations occurred.
5. Under Minn. Stat. § 245A.07, if a license holder fails to comply with a correction order or conditional license, the Commissioner is authorized to impose a fine and order other licensing sanctions.
6. Minn. Stat. § 245C.03, subd. 1(2) requires that background studies be conducted regarding “an individual age 13 and over living in the household where the licensed program will be provided.”
7. Minn. R. 9502.0375 requires all daycare providers to inform the licensing agency within 30 days of any change in the regular membership of the household.
8. 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 those persons in a licensee’s program before applying sanctions under Minn. Stat. § 245A.07.
9. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Priebe failed to notify the local agency of two additional household members within 30 days of their moving into the household violation of Minn. R. 9502.0375, subd. 2.
10. Ms. Priebe has failed to demonstrate by a preponderance of the evidence that she was in full compliance with Minn. R. 9502.0375, subd. 2., requiring notification of the local agency of two additional household members, Lisa and Patrick Priebe, within 30 days of their moving into the household, as alleged by the Department.
11. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Priebe allowed a disqualified individual to remain a resident in the household, even after agreeing to a corrective order that he must be removed, resulting in a violation of Minn. Stat. §§ 245A.07 and 245C.14 .
12. Ms. Priebe has proved by a preponderance of the evidence that she was in compliance with Minn. Stat. §§ 245A.07 and 245C.14, did comply with the March 21, 2006, corrective order by immediately removing Patrick Priebe from residence in the daycare home, that Patrick Priebe was not a resident in the daycare home after March 31, 2006, as required by the correction order.
13. Ms. Priebe has proved by a preponderance of the evidence that she was in compliance with Minn. Stat. §§ 245A.07 and 245C.14, did comply with the March 21, 2006, corrective order by taking the additional steps of: terminating all of Patrick Priebe's visiting privileges; terminating Lisa’s tenancy; and changing the locks of the home, promptly after she learned her son had been visiting overnight during some of her weeknight absences.
14. The eight children and parents of four families being served would be harmed by the revocation of Ms. Priebe’s license.[37]
32.
These
Conclusions are reached for the reasons set forth in the Memorandum below,
which is hereby incorporated by reference into these Conclusions.
33.
The
Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions, and as Findings any Conclusions that
are more appropriately described as Findings.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
Based upon these Conclusions, the
Administrative Law Judge recommends to the Commissioner of Human Services that:
The revocation of the family day care license of Ms. Julie
Priebe be withdrawn and rescinded.
Dated: January 12, 2007
s/M.
Kevin Snell
|
M.
Kevin Snell Administrative
Law Judge |
Reported:
Tape recorded (two (2) tapes); no transcript prepared.
This report is a recommendation, not a
final decision. The Commissioner of
Human Services will issue a final decision after reviewing the administrative
record, and he may adopt, reject or modify the Administrative Law Judge’s
Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this recommended decision in which to file any exceptions to the
report with the Commissioner.[38]
Parties should contact the office of Cal
Ludeman, Commissioner of Human Services,
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
MEMORANDUM
The Commissioner presented the testimony of the County licensing worker, her notes, and the Correction Orders and letters issued to Licensee to show that Ms. Priebe did not comply with the rules and laws applicable to her family child care. The testimony and documentary evidence submitted by the County and State at the hearing: 1) showed that Ms. Priebe recently reported two additional household members late; and 2) indicated that Ms. Priebe failed to ensure that her adult son was no longer residing in the home and misled the County licensing worker regarding his actual residence status. Accordingly, the Commissioner established that reasonable cause existed to revoke the license.
Ms. Priebe could certainly be expected to know she had to
report the two new household members, Patrick Priebe and Lisa, within 30 days
of their arrival because she had learned of this requirement no later than
November of 2004 when she received and signed the correction order on the same
issue regarding Michael Priebe. Reporting Lisa’s presence approximately 3
months late and Patrick Priebe’s arrival almost two months late would justify a
modest sanction. The 2004 correction order, while proof of knowledge of the 30
day rule requirement, should not, of itself, be a basis for applying a sanction
at this time. Considering the nature, minor chronicity, lack of severity of
these two violations of rule and the lack of effect these two violations of
rule had on the health, safety, or rights of the children in Ms. Priebe’s
program, neither revocation nor suspension of Ms. Priebe’s license would be
reasonable.[39]
Fines of $100.00 for each of the two violations of Minn. R. 9502.0375 would be justified,
if the Commissioner believes that such a sanction is necessary.[40]
Ms. Priebe proved by a
preponderance of the evidence: (1) that she had been unaware that Patrick had
been staying overnight in her home until the
Another fact given material weight was Ms. Priebe’s decision to terminate the occupancy of Lisa. This was a decision adverse to both her financial interest due to the loss of rent and her work interests by no longer having Lisa to help in the daycare home. Ms. Priebe chose the most conservative approach by removing temptation for her son to return to the home. Ms. Priebe chose compliance over her financial interests.
The testimony of Michelle V., a special education
teacher in
For
all of these reasons, the Administrative Law Judge recommends that the Order of
Revocation be rescinded.
M.K.S.
[1] Testimony of Julie Priebe, Ex. 1.
[2]
[3] Testimony of Julie Priebe.
[4] Testimony of Angela Jensen, Olmsted County Social Worker and licensor.
[5]
Ms. V., a special education teacher in
[6] Exs. 4, 9, 11-14, testimony of Greg S. and Michelle V.
[7] Ex. 5.
[8]
[9]
[10] Ex. 5 at pg. 1 and attachment 5.
[11] Exs. 4, 9, 11, 12, and 14.
[12] Testimony of Julie Priebe.
[13]
[14] Ex. 7.
[15]
[16] Ex. 5 at pg. 1, and its Attachment 2, testimony of Julie Priebe.
[17] Ex. 5 at Attachment 5. testimony of Angela Jensen.
[18]
[19] Ex. 4.
[20] Testimony of Julie Priebe.
[21] Ex. 5 at attachment 7.
[22] Testimony of Jennifer Mewhorter.
[23]
[24] Testimony of Julie Priebe, Ex. 9.
[25]
[26] Ex. 5 at attachment 7.
[27]
[28]
[29] Ex. 9, testimony of Julie Priebe.
[30] Testimony of Angela Jensen.
[31] Testimony of Julie Priebe.
[32] Ex. 5, at pg. 1.
[33] Ex. 6.
[34] Ex. 7.
[35] Ex. 8.
[36] Ex. 9.
[37] Exs. 4, 9, 11-14, testimony of Greg S. and Michelle V.
[38]
[39] Minn. Stat. § 245A.07, subd. 1.
[40] Minn. Stat.
245A.07, subd. 3(c)(4) provides:
Fines shall be assessed as follows: the license holder shall forfeit $1,000 for each determination of maltreatment of a child under section 6.6.556 or the maltreatment of a vulnerable adult under section 626.557; the license holder shall forfeit $200 for each occurrence of a violation of law or rule governing matters of health, safety, or supervision, including but not limited to the provision of adequate staff-to-child or adult ratios, and failure to submit a background study; and the license holder shall forfeit $100 for each occurrence of a violation of law or rule other than those subject to a $1,000 or $200 fine above. For purposes of this section, "occurrence" means each violation identified in the commissioner's fine order.