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7-1800-19744-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In the Matter of the Family Child Care License of Barbara Alex |
FINDINGS OF FACT, CONCLUSIONS, RECOMMENDATION AND MEMORANDUM |
This matter was heard by
Administrative Law Judge (ALJ) Richard C. Luis at the Hennepin County Human
Services and Public Health Department Office in
Barbara Alex appeared on her own behalf, without counsel.
The hearing record closed at the conclusion of the proceeding on August 14, 2008.
Whether reasonable cause exists to continue the temporary immediate suspension of the family child care license of Barbara Alex, pending any final licensing sanction, for her use of alcohol that was apparent during the hours children were in her care on June 10, 2008?
Based on the proceedings herein, the Administrative Law Judge makes the following:
1. Barbara Alex (Licensee) has been a licensed family child care operator since 1990. She holds a Class A license, which allows her to care for up to ten children, no more than three of which can be infants or toddlers, no more than two of which can be infants.[1]
2. Sometime during the mid-afternoon of June 10, 2008, while at least three children were in her care, the Licensee began drinking a half bottle of rum. When the grandmother of one of the daycare children arrived later to pick up the child, the grandmother concluded, from her observations, that the Licensee had been drinking.[2]
3. Sometime later that afternoon, another of Ms. Alex’s daycare children was picked up by her mother. The mother called the Minneapolis Police Department to report that the Licensee appeared to be drunk at the time the caller picked up her child at the Licensee’s residence. The caller also reported that two other children were there when she picked up her daughter, and that Ms. Alex had indicated that another person had earlier accused her of being drunk.[3]
4.
Shortly after 5:00 p.m., a
5. At the hearing, Ms. Alex admitted that she had consumed alcohol during hours that daycare children were present at her residence on June 10, 2008.[5]
Based on the 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 under Minn. Stat. §§ 14.50 and 245A.07.
2. The Department gave proper and timely notice of the hearing, and has complied with all procedural requirements.
3. Under Minnesota law, if a “license holder’s actions or failure to comply with applicable law or rule…pose an imminent risk of harm to the health, safety or rights of persons served by the program, the commissioner shall act immediately to temporarily suspend the license.”[6] The burden of proof in this matter is on the Department to demonstrate that “reasonable cause exists to believe that the license holder’s actions or failure to comply with applicable law or rule poses…an imminent risk of harm to the health, safety, or rights of persons served by the program.”[7]
4. The Department has demonstrated reasonable cause to believe that the Licensee failed to comply with an applicable law or rule, specifically by using alcohol, which use was apparent during the hours children were in her care, in violation of Minn. Rule 9502.0335, Subp. 6.A. The Department has also demonstrated reasonable cause to believe that the Licensee poses imminent risk of harm to the health, safety or rights of children served by her daycare program, within the meaning of Minn. Stat. § 245A.07, subd. 2.
5. It is appropriate for the temporary immediate suspension of the Licensee’s family child care license to remain in effect, pending a final Order of the Commissioner for appropriate disciplinary action, if any.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that the Commissioner affirm the temporary immediate suspension of the family child care license of Barbara Alex.
Dated: September 8, 2008.
/s/ Richard C. Luis
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RICHARD C. LUIS Administrative Law Judge |
Reported: Digitally Recorded
No Transcript Prepared
This report is a recommendation, not a final
decision. The Commissioner of Human
Services (the Commissioner) 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. The parties have 10 calendar days after
receiving this report to file Exceptions to the report. At the end of the exceptions period, the
record will close. The Commissioner then
has 10 working days to issue his final decision. Parties should contact Cal Ludeman,
Commissioner of Human Services,
Under Minn. Stat. § 14.62, 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.
MEMORANDUM
The Licensee admits to drinking rum during the time children were in care at her facility on June 10, 2008. The fact that she was under stress, from family and financial issues, does not justify the open, admitted rule violation. Ms. Alex offered no defense to rebut the Local Agency/Department’s showing of reasonable cause to believe she violated the rule against using alcohol while children were in her care, and that such use was apparent and presented an imminent risk of harm to the children’s safety.
R.C.L.