STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In
the Matter of the Revocation of the Family Child Care License of Annette
Ripley |
FINDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATION
|
This matter came before Administrative Law
Judge Eric L. Lipman for an evidentiary hearing on the license holder’s appeal
from an Order of Revocation. The
evidentiary hearing was held on May 11, 2011 in Conference Room 40-B of the Ramsey
County Courthouse. The hearing record
closed following the adjournment of the proceedings on that day.
Edward Kaiser, Assistant Ramsey County
Attorney, appeared on behalf of the Minnesota Department of Human Services and Ramsey
County Community Human Services Department (the Department). Annette Ripley appeared on her own behalf and
without counsel (Licensee).
STATEMENT OF ISSUES
1.
Did the
Department demonstrate reasonable cause that sanctions should be imposed upon
Ms. Ripley’s family day care license?
2.
If the
Department demonstrated reasonable cause to show that sanctions should be
imposed upon Ms. Ripley’s family day care license, did Ms. Ripley show, by a
preponderance of the evidence, that she was in compliance with all applicable
statutory and regulatory requirements?
3.
If
regulatory discipline is appropriate, what sanctions should be imposed?
The Administrative Law Judge concludes that
the Department did establish reasonable cause for revocation of the family day
care license; that Ms. Ripley did not establish full compliance with the
requirements of her license; and that revocation of her license is the most
appropriate regulatory sanction in this instance.
Based upon the evidence
in the hearing record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Ms. Ripley
holds a license from the Department of Human Services to operate a family day
care – License No. 1034146—R02. Ms.
Ripley operates a day care out of her home in
2.
Ms.
Ripley holds a “Class A license;” a reference to the regulatory section that
limits the number of children that may be under care. As of late 2011, Ms. Ripley had five children
under care; 2 of whom were school age and 3 others who had not yet reached
school age.[2]
3.
During
the summer of 2007, one of Ms. Ripley’s client families withdrew their child
from Ms. Ripley’s care. As the child’s
mother reported to County Human Services officials, she believed that Ms.
Ripley had a diabetic episode that rendered the Licensee unresponsive while
children were under the Licensee’s care.
This client likewise opined the Ms. Ripley is “disorganized” and that
“this results in [the Licensee’s] home being dirty.”[3]
4.
While
this report was received by Human Services in 2007, and was placed into the
appropriate file, it did not prompt further inquiry from County officials.[4]
5.
Following
licensing visits in November of 2008, June of 2009, and October of 2009, Ms.
Ripley received a series of correction orders.
These correction orders sought compliance on issues relating to day care
sanitation and health standards. Among
the deficiencies, the correction orders cited the failure to keep the day care
home free from accumulations of dirt and rubbish.[5]
6.
In the
spring of 2010, the
7.
Because
of health conditions both Ms. Ripley and her husband had in 2010, it became
more difficult for the couple to undertake house cleaning chores. Ms. Ripley acknowledges that during the
summer and autumn of 2010, her home was not as clean as she would like or as
clean as it had been before this period.[7]
8.
As part
of the process for re-licensing Ms. Ripley’s day care for another license term,
Mr. Braam made an unannounced visit to the Ripley home on October 19, 2010. Upon inspection of the licensed day care
spaces, he found it overrun with clutter.
Additionally, toxic substances had been left in places that were
accessible to children and a sharp tree branch jutted from the ground with an
“exposed … very sharp 15 inch edge.”
After consultation with colleagues in the Ramsey County Community Human
Services Department, Mr. Braam decided to extend the re-licensing process and to
conduct another, unannounced inspection of the home.[8]
9.
On
November 10, 2010, Mr. Braam returned to the Ripley day care home for follow-on
inspection visit. Accompanying him was
Code Enforcement Officer Joel Essling of the City of
(a)
SANITATION: Immediately remove improperly stored
or accumulated refuse including; garbage, rubbish, junk, vehicle parts, wood,
metal, recycling materials, household items, building materials, rubble, tires,
etc., from yard. The Saint Paul Legislative Code requires all exterior property
areas to be maintained in a clean and sanitary condition. Usable materials must
be stored in an approved manner, so as not to constitute a nuisance.
(b)
FIRE HAZARD: There is an excessive accumulation
of combustible material in the basement. Remove excessive storage.
(c)
FIRE HAZARD: There is combustible material
stored in proximity to gas fired appliances. Remove all combustible material
from around gas fired appliances.
(d)
FIRE HAZARD: There is extension cord wiring in
the basement. Remove extension cord wiring.
(e)
FIRE HAZARD. There exits and/or access to exits
that are blocked with storage.
(f)
ELECTRICAL: There are open junction boxes in the
basement. Have a licensed electrical contractor check wiring when basement has
been cleared out enough to fully inspect electrical system.
(g)
The bathroom floor covering is deteriorated or
inadequate. Provide floor covering which is impervious to water and easily
cleanable throughout the bathroom and seal around the edges and fixtures.
(h)
GARAGE
VEHICLE DOOR: The garage vehicle door is open and inoperable. Repair or replace
garage vehicle door, or close vehicle opening in a professional manner to
prevent rodents form entering….
For these items, Officer Essling’s citation
provided that the listed deficiencies must be corrected by December 18, 2010.[9]
10.
Following
the inspection visit on November 10, 2010,
11.
Ms.
Ripley did not submit an appeal to that Order.[11]
12.
In mid-November
of 2010, a team of Ms. Ripley’s parent-customers, all of whom were eager to
facilitate an early re-opening of the day care operation, helped the Ripley family
clean the day care home. The team of
parents undertook the cleaning process for approximately one week. During this overhaul, several truck loads of
debris, equipment and household items were removed from the Ripley home.[12]
13.
On
December 30, 2010, Mr. Braam returned to the Ripley home to learn of the
progress on addressing the matters set forth on the Correction Notice from the
Department of Safety and Inspections.[13]
14.
Because
the temporary immediate suspension order was still in place, there were no
children under care at the time of Mr. Braam’s December 30 visit. Notwithstanding this fact, Mr. Braam
concluded that the day care home still did not meet the health and sanitation
standards set forth in Minn. R. 9502.0435.
Urging a revocation of the Ripley’s family child care license, he wrote:
[D]uring our visits in the last few weeks,
the provider repeatedly said that she could be in compliance with day care
rules “if only given more time;” if she “received more help from my husband and
family;” and if she “got clearer statements from Ramsey County on what needs to
be done.” Thus, she continues to deny personal responsibility for her
situation, and her responsibility as a professional provider. A pattern seems evident
here. The provider rarely meets minimum standards to continue licensed care,
even when these are brought to her attention. We cannot possibly monitor her
licensed home on a daily basis to ensure compliance. When she has managed to
bring the condition of her home to minimum standards after a citation, she is
not able to maintain these standards and regresses rather quickly to the
regular way of living that we saw on [December 30, 2010].
15.
On
February 8, 2011, the Department issued an Order of Revocation of Ms. Ripley’s family
day care license.[14]
16.
Ms. Ripley
timely appealed the Order of Revocation.[15]
CONCLUSIONS
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
Notice of Hearing is proper in all respects and the Department complied with
all substantive and procedural requirements of law and rule.
3.
At all
times relevant to these proceedings, Ms. Ripley held a family day care license
governed by Minnesota Rules Part 9502.
4.
The Commissioner of Human Services has adopted
rules establishing procedures and standards for licensed family day care providers
“to ensure that minimum levels of care and service are given and the
protection, proper care, health, safety, and development of the children are
assured.”[16]
5.
At a hearing on the sanctions to be imposed upon a family
day care license, the Commissioner of Human Services may demonstrate reasonable
cause for action taken by submitting statements, reports, or affidavits to
substantiate the allegations that the license holders 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 holders to demonstrate by a preponderance of the evidence
that they were in full compliance with those laws and rules at the relevant
times.[17]
6.
Because of the deficiencies found in the
Department of Safety and Inspections’
Citation of November 10, 2010, and Mr. Braam’s January 18, 2011 report that Ms.
Ripley had not cured the cited deficiencies, the Department demonstrated
reasonable cause for the imposition of sanctions upon Ms. Ripley’s family day
care license.
7.
Ms. Ripley failed to show by a preponderance of
the evidence that as of December 18, 2010, she was in full compliance with all
applicable statutory and regulatory requirements.
8.
The Commissioner is authorized to suspend or revoke
a license if the license holder “fails to comply fully with applicable laws or
rules . . . .”[18]
9.
When imposing sanctions on a license holder, the
Commissioner of Human Services is required 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 served by the program.”[19]
10.
In this instance, Ms. Ripley is not able to assure
the Department that the spaces she uses for both day care operations and family
activities can be maintained in
accordance with Minn. R. 9502.0425 and 9502.0435.
Based upon these Conclusions, and for the
reasons explained in the accompanying Memorandum, the Administrative Law Judge
makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the Commissioner of
the Department of Human Services AFFIRM the Order of Revocation.
Dated: June 17, 2011
s/Eric
L. Lipman
|
ERIC L. LIPMAN Administrative Law Judge |
Reported: Digitally recorded
No Transcript Prepared
NOTICE
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 and
may adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendation. Under Minn. Stat. §
14.61, the Commissioner shall not make a final decision until this Report has been
made available to the parties for at least ten days. The parties may file exceptions to this
Report and the Commissioner must consider the exceptions in making a final
decision. Parties should contact Lucinda Jesson, 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. In order to
comply with this statute, the Commissioner must then return the record to the
Administrative Law Judge within 10 working days to allow the Judge to determine
the discipline to be imposed. 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.
Pursuant to Minn. Stat. § 14.62, subd. 1,
the Commissioner is required to serve its final decision upon each party and
the Administrative Law Judge by first class mail.
MEMORANDUM
In opposing the order of
revocation, Ms. Ripley argues that the deficiencies claimed by the County
inspectors were arbitrary. She asserts
that the findings of noncompliance were arbitrary because the licensing worker,
Mr. Braam: (1) cited as deficiencies some permanent features of the day care
home that had not been noted as noncompliant during earlier licensing visits;
(2) did not establish clear timetables for the correction of claimed
deficiencies; and (3) supplanted his own personal, and unduly harsh, sanitation
standards for the minimums that are needed to keep children safe.
In the view of the Administrative Law Judge,
none of these claims is availing. As
detailed below, a regulatory sanction is appropriate because of Ms. Ripley’s
non-compliance with clearly stated sanitation and health standards.
1.
Compliance with the “Physical Environment”
and “Sanitation and Health” Standards for Licensed Day Facilities
The hearing record
includes two very different versions of events:
The first version is found in Mr. Braam’s January 18, 2011 memorandum
urging revocation of Ms. Ripley’s license.
In that report, an exasperated Braam points out that the Ripleys failed
to correct the deficiencies outlined by the City of
A second version of
events is the one that unfolded at the evidentiary hearing. On the witness stand – admittedly some months
after his December inspection and the drafting of his January report – Mr. Braam
was more equivocal. He could not, for
example, testify with assurance whether the Ripleys had replaced the bathroom
flooring by the December 18, 2010 deadline.[21]
In the view of the
Administrative Law Judge the best reading of the hearing record lies somewhere between
these two poles. The Ripleys addressed
many of the deficiencies cited by the City Inspector before December 18,
2010. Yet, whether the Licensee met each
of the requirements of the citation and all of the applicable health and safety
standards is in real doubt. The record
simply does not provide a sufficient view of the day care home in December of
2010 to establish the licensee’s “full compliance” with applicable laws or
rules. And, in the end, the law assigns
to Ms. Ripley the burden of proof on these points. She has not shouldered that burden here.
2.
Fencing of the Outside Play Space
Like many homes in the
neighborhoods that surround
On his visits to the day care home in
October and November of 2010, Mr. Braam noted as deficiencies the fact that the
Ripley’s front yard was not enclosed. As
Braam reasoned, without an enclosure, a day care child playing in the front
yard could tumble on to the pavement below and be injured.
Ms. Ripley complains that
the fact that her home sits upon a raised lot was readily apparent at the time
of her initial licensure and during all of the years since. She asserts, without contradiction from the
County, that her compliance with the outside play space requirements of Minn.
R. 9502.0425, subp. 2, was not identified as an issue before Mr. Braam’s
assignment as her licensing worker. She
argues that the County’s citation as to the lack of an enclosure, at this late
date, is prejudicial and unfair.
The Administrative Law
Judge does not reach the question of whether the County should be barred from proceeding
on this deficiency. This is because
regardless of whether the County is permitted to assert this claim, it does not
significantly impact the overall analysis.
In either case, Ms. Ripley cannot show that she was in full
compliance with all applicable statutory and regulatory requirements.
3.
Assessing the Nature, Chronicity and
Severity of the Violations
By her own admission, Ms. Ripley is not an
exemplary housekeeper. She argues that a
better result in this case would be to oblige her to retain a housekeeping
service as a condition of continued licensure – an arrangement that would permit
her to focus on the delivery of day care services.
The proposed solution has some allure – particularly
because the state courts have given substantial weight to an individual’s right
to maintain employment in his or her chosen field.[23] Yet, a conditional license does not appear to
be a practicable alternative in this case.
This is because the working relationship between the Licensee and county
officials has completely collapsed. Ms.
Ripley does not have confidence in the County’s ability to fairly assess her
compliance with state rules and the County does not believe that anything less
than monitoring the Ripley home “on a daily basis” will assure compliance. Further still, given the breadth of the
building code violations in the
past assuring future compliance would be a complex, multi-agency
enterprise. Upon such a foundation, a
conditional license is unlikely to succeed.
E.
L. L.
[1] Exhibit
1; Testimony of Annette Ripley.
[2] Testimony
of Peter Braam; see also, Minn. R.
9502.0367 (A).
[3] Ex.
85.
[4] Test.
of P. Braam.
[5] Ex.
4 at 9; see also, Minn. R. 9502.0435,
subp. 1.
[6] Ex.
4 at 9; Test. of P. Braam.
[7] Test.
of A. Ripley; Ex. T.
[8] Ex.
4 at 9; Test. of P. Braam.
[9] Ex.
5; Test. of P. Braam; compare generally, Exs.
7 to 84.
[10] Ex.
3.
[11] Ex.
1 at 4.
[12] Ex.
W; Testimony of Stacy Fox; Testimony of Katharine Karl.
[13] Ex.
4 at 7-8; Test. of P. Braam.
[14] Ex.
1.
[15] See, Notice and Order for Hearing, OAH
Docket No. 8-1800-21917-2 (February 22, 2011).
[16] See,
[17] See,
[18] See,
[19] See,
[20] See, Ex. 4 at 8.
[21] Compare, Exs. K and W with Test.
of P. Braam.
[22] See, Ex. A.
[23] See, Thompson v. Commissioner, 778
N.W.2d 401, 406 (