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OAH 2-1800-19298-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Order for Conditional License and Order for the Forfeit of a Fine of Opal Robinson |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Raymond R. Krause (the ALJ) on November 21, 2008, at
the Office of Administrative Hearings,
Michael Q. Lynch,
The Department offered Exhibits 1 through 6 into evidence and Respondent offered Exhibits A through G into evidence. Without objection, all exhibits were admitted.
Has the Department demonstrated that the license of Respondent should be subject to conditions and a $1000 fine?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Respondent holds a license from the Department for family childcare. She provides her program from her home. On May 25, 2007, Respondent was caring for four children when Pillsbury Crisis Nursery placed an additional two children in her care.[1]
2. Three of the children then in her care were infants or toddlers and three were between the ages of four and six.[2]
3. Respondent was going to make lunch for her charges when she discovered that she needed more milk with which to make the macaroni and cheese. She “scooped up” the older three children and left the house to run to the Snyder’s store nearby. The Snyder’s store is approximately one-half block from her house. She left the infants inside her house. Two of the infants were strapped in high chairs and one was asleep in a child swing.[3]
4. On her way down the block she was met by the parent of the two children who were placed with her by Pillsbury Crisis Nursery. One of the children with her and one left behind were children of this parent. Respondent told the parent that she was running to the store to get milk. Respondent thought better of the idea and returned to her home without going to the store.[4]
5. The parent notified Pillsbury Crisis Nursery of the incident and said she did not want her children cared for there in the future.[5]
6. A report of the incident was made to Hennepin County Child Protection Services.[6] The report was transferred to Kristen Rasmussen who is the licensing agent for Respondent. Respondent also self reported to Hennepin County Human Services.[7]
7.
Respondent stated to the Intake Reporter at
8.
9. Respondent has no previous incidents of neglect or other rule violations as a daycare provider.[11]
10. Based on the recommendation of the Hennepin County Social Services, the Department issued an Order to Forfeit Fine and an Order of Conditional License on August 30, 2007.[12]
11. On September 17, 2007, Respondent timely appealed the orders.[13]
12. In December 2007, Respondent closed her daycare program.[14]
13. Numerous parents who formerly had children in Respondent’s care testified to her dependability, concern, awareness of safety, and the obvious care she took of her charges. All the witnesses and those who submitted written testimony knew of the incident in May 2007, and felt nevertheless that she could be completely trusted with their children.[15]
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 to consider this matter pursuant to Minn. Stat. §§14.50 and 245A.07, subd. 3.
2.
The Commissioner, through
3. At a hearing regarding a licensing sanction under section 245A.07, including consolidated hearings under subdivision 2a, the commissioner may demonstrate reasonable cause for 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 of proof shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules that the commissioner alleges the license holder violated, at the time that the commissioner alleges the violation of laws or rules occurred.
4. The Commissioner has demonstrated reasonable cause for negative action against the license.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge recommends that:
1. The Order for Conditional License to provide family day care be Affirmed in part and;
2. The Order to Forfeit a Fine of $1000 be Rescinded.
Dated: November 25, 2008
s/Raymond
R. Krause
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RAYMOND
R. KRAUSE Administrative
Law Judge |
Reported: Digitally
No
transcript prepared
This
report is a recommendation, not a final decision. The Commissioner (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
the Office of Cal Ludeman, Commissioner of Human Services, Attention: Virginia
Rae Bly,
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 County and Respondent agree on the basic facts of this case. Respondent made a serious error of judgment which, however, resulted in no harm to any child in her care. She realized her mistake and corrected her action within minutes. She self reported the incident and made no excuses.
It is clear from the testimony that she fully understands the rule and its importance. She obviously takes the matter very seriously. She accepts responsibility and is willing to take the appropriate consequences for her actions.
The County points out that this is apparently her first violation of any rule. She has been cooperative and complied with all the instructions she has been given. In addition, she is no longer in the business of providing daycare.
Given the facts above, it seems excessively harsh to impose a $1000 fine on Respondent. There has been no demonstration or allegation of willful resistance to following the Department’s rules but rather a one time slip that she recognizes and deeply regrets. All the evidence demonstrates that she has been an exceptionally conscientious daycare provider. In these circumstances, although a fine is within the discretion of the Commissioner, it serves little purpose.
With regard to the conditions placed on her license, Respondent understands and accepts that they were warranted. She is, however, no longer in the daycare business. Her concern, as best can be determined, is that she still wishes to see the children formerly in her care and be allowed to provide occasional unlicensed care for them from time to time. Second, her new job is at a fitness facility. It does not require her to provide daycare services per se, but the facility has a daycare and a drop off care center for parents working out in the gym. Should they need assistance from time to time, she would, it seems, like to be able to assist. The ALJ respectfully recommends that her license conditions permit these occasional care situations if it does not already do so.
R. R. K.
[1]Exs. 2, 3, 4, and Testimony of Opal Robinson.
[2] Test. of O. Robinson.
[3]
[4]
[5]
[6] Ex. 4.
[7] Test. of Kristen Rasmussen and O. Robinson; and Exs 2, 3, 4, and 5.
[8] Ex. 4.
[9] Ex. 6.
[10] Ex. 1.
[11] Ex. 5.
[12] Ex. 1.
[13] Notice of and Order for Hearing, Ex. A, and Respondent Ex. C.
[14] Test. of O. Robinson.
[15] Testimony of