This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed January 27, 2004
Department of Human Services
File No. 621
Steve L. Bergeson, Christopher S. Petros, Law Office of Tuttle & Bergeson, Suite 300, 1275 Ramsey Street, Shakopee, MN 55379 (for relator)
Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Minge, Judge.
Relator challenges the commissioner’s decision to revoke her family child-care license. On appeal, relator argues that the commissioner erroneously concluded that she did not provide adequate supervision to the children in her care and that the penalty of revocation was too severe. We affirm.
Relator Amy Gillen operated a home daycare until her license was revoked on October 1, 2002. Two incidents led to the revocation. First, on June 22, 2001, Scott County Social Services received a complaint stating that two adult women found a two-year-old girl alone, slightly injured, and crying at a park. The women picked up the child and spent approximately five minutes looking for the person responsible for her. Eventually, another child directed them to relator, who was sitting on a bench talking on her cell phone. This concerned the women because “during this time, [relator] had not known where the little girl was nor that she had gotten hurt.” Scott County subsequently issued a correction order based on inadequate supervision. Relator filed a motion to reconsider, but the Minnesota Department of Human Services (DHS) denied the request and affirmed the revocation order. Relator did not appeal.
The second incident occurred on July 5, 2002. Relator employed her sister, Penny Eischens, to assist her with childcare. That day, Eischens took six children, ages three to five, including four-year-old J.K., to a water park while relator stayed home to wait for a parent to pick up a sick child. Three other adults also went to the water park, but they were responsible for other children. When relator arrived at the park, she saw that lifeguards had pulled J.K. from the pool and were attempting to revive him. Relator accompanied J.K. to the hospital, immediately notified his parents, and reported the incident to Scott County the following business day. J.K. was hospitalized for approximately five days, some of which were spent on a ventilator. Scott County recommended a fine and that relator’s license be placed on conditional status. Respondent Commissioner of DHS disagreed, and the DHS issued an order revoking relator’s license. The revocation was based on both the June 22, 2001 and July 5, 2002 incidents.
Relator appealed the revocation at a contested-case hearing before an administrative law judge (ALJ). The ALJ concluded that the DHS had “demonstrated that it had reasonable cause to take action against [relator],” but that relator had “shown by a preponderance of the evidence that there was adequate supervision of the children” at the water park. This conclusion was based on several factors, including that the children were in an area in the pool designated for small children, a lifeguard was on duty, and the caregiver was in the water and at close range at all times. The ALJ concluded that relator was in compliance with departmental rules regarding supervision and recommended that the commissioner not revoke relator’s childcare license.
The commissioner adopted the majority of the ALJ’s findings, but also made several changes. Most notably, the commissioner modified conclusion 6 to read, “[Relator] has not shown by a preponderance of the evidence that there was adequate supervision of the children in her care at the Apple Valley Water Park on July 8, 2002 [sic].” Finding that the record supported the DHS’s decision to revoke relator’s license, the commissioner affirmed the revocation. The commissioner also denied relator’s request to reconsider the revocation, concluding that “there has been no fraud, mistake or misconception of facts in issuing the order of [revocation] which warrants reconsideration.” This appeal follows.
Agency decisions are presumed correct, and courts must defer to the agency’s expertise. In re Petition of Space Ctr. Transp., 444 N.W.2d 575, 579 (Minn. App. 1989). The agency decision must be upheld unless it violates the constitution, exceeds the agency’s authority or jurisdiction, results from unlawful procedure or other error of law, is not supported by substantial evidence, or is arbitrary and capricious. Minn. Stat. § 14.69 (2002). Absent a clear abuse of discretion, we must also defer to the agency’s choice of sanction. In re Licenses of Kane, 473 N.W.2d 869, 877 (Minn. App. 1991), review denied (Minn. Sept. 25, 1991).
Relator challenges the commissioner’s determination that she failed to adequately supervise the children in her care. Relator argues that the commissioner erred in defining “supervision” because the commissioner defined supervision as “requiring that caregivers be within sight or hearing of the children in their care such that they are able to intervene if a child is in danger.” (Emphasis added.) Minn. R. 9502.0315, subp. 29a (2001), defines supervision 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.”
Relator contends that the commissioner’s definition of supervision placed undue emphasis on the “end result” and failed to weigh the evidence to determine whether relator and her staff met the definition of supervision in Minn. R. 9502.0315, subp. 29a. Generally, we review the commissioner’s factual determinations to determine whether the decision is supported by substantial evidence in the record as a whole. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977). But where relator fails to provide a transcript, as here, our review is limited to assessing whether the commissioner’s legal conclusions are supported by the findings of fact. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995); see also Minn. R. Civ. App. P. 110.02, subd. 1.
The commissioner made numerous factual findings, including that (1) relator received a correction order on June 22, 2001, for failure to adequately supervise a child in her care; (2) relator’s employee took six children, ages three to five, into the shallow end of the pool “in water up to approximately Ms. Eischen’s thighs;” (3) after Eischen turned away to reprimand other children for “go[ing] down the slide head first,” she resumed her count of the children and could only locate five; (4) J.K., age four, was first spotted by a lifeguard, unconscious, blue in color, and floating in the water; (5) a lifeguard administered rescue breathing and J.K. was transported by ambulance to the hospital where he spent five days, some of which were on a ventilator; (6) relator immediately notified J.K.’s parents and Scott County, and her report was consistent with the police report; (7) J.K. fully recovered and remained in relator’s care; and (8) because the Apple Valley Police felt the incident was an accident and Scott County did not complete an assessment, Scott County did not pursue revocation of relator’s license and instead recommended conditional-license status and a fine.
Based on these findings, the commissioner concluded that (1) DHS had reasonable cause to take action against relator and (2) relator had not shown by a preponderance of the evidence that there was adequate supervision at the water park. The accompanying memorandum elaborated on these points, stating that the ALJ’s reasoning was flawed with regard to supervision. The commissioner concluded:
Minn. R. 9502.0315, subd. 29a, articulates a supervision standard requiring that caregivers be within sight or hearing of the children in their care such that they are able to intervene if a child is in danger. . . . The inherent danger of taking young children who do not swim to a water park requires a level of supervision that is adequate to assure that a caregiver will be able to intervene. . . . [T]he emphasis should be focused on whether there was sufficient supervision to intervene. The supervision provided by [relator] was clearly inadequate in the situation. This is evidenced by the near drowning of one child. This child, unconscious and “blue in color,” was rescued by persons other than [relator’s] caregiver before the caregiver was aware that the child was in danger.
The commissioner’s conclusion that relator failed to provide adequate supervision is supported by the findings of facts. Here, one caregiver was in charge of six children under the age of six in water that was thigh-deep for an adult. Some children were playing on a slide, while others were in the water and it was necessary for the caregiver to divert her attention from some of the children in order to reprimand others. Under these circumstances, the caregiver was simply not “capable of intervening” with regard to all the children in her care at the same time. The fact that J.K. was “unconscious and blue in color” before anyone noticed he was in danger only reinforces this conclusion. Therefore, we conclude that the commissioner did not err in determining that relator failed to adequately supervise the children in her care.
Relator also challenges the commissioner’s decision to revoke her license, arguing that this penalty is too severe for the circumstances. Minnesota’s Human Services Licensing Act authorizes the commissioner to impose any one of various sanctions when a licensee fails to comply with an applicable law, rule, or term of a correction order or conditional license. Minn. Stat. §§ 245A.06-.07 (2002). The commissioner may issue a correction order or conditional license, suspend or revoke a license, impose a fine, or secure an injunction. Minn. Stat. §§ 245A.06, subds. 1-3, .07, subds. 1, 3. Licensors and inspectors may also place the license holder on probation. Minn. R. 9543.0100, subp. 5 (2001).
DHS agency rules divide possible childcare license sanctions into three main types of enforcement actions: correction orders, probation, and negative licensing actions. Minn. R. 9543.1050, subps. 1, 7 (2001). Within the negative licensing actions are suspension, immediate suspension, and revocation. Minn. R. 9543.1060 (2001). The rules reflect a relative hierarchy of sanctions, increasingly severe based on the effect of the violations.
Revocation is appropriate when “continued operation of the program is not in the best interest of persons served by the program and would pose an unacceptable risk of harm to persons served by the program.” Id., subp. 4. Suspension, a less severe sanction, is available when it is “in the best interests of persons served . . . and would not pose a risk of harm to persons served by the program.” Id., subp. 5. Probation is available when the commissioner determines that revocation, suspension, and immediate suspension are not warranted. Minn. R. 9543.1050, subp. 7. Finally, correction orders, the least severe sanction, may be issued if the violation can be corrected within a reasonable time and the violation does not imminently endanger the health, safety, or rights of the people served by the program. See Minn. Stat. § 245A.06, subd. 1; Minn. R. 9543.1050, subp. 1.
Before imposing any sanction, 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.” Minn. Stat. §§ 245A.06, subd. 1, .07, subd. 1. The rules elaborate on this standard by requiring that the commissioner consider:
A. the laws or rules that have been violated;
B. the nature and severity of each violation;
C. whether the violation is recurring or nonrecurring;
D. the effect of the violation on persons served by the program;
E. an evaluation of the risk of harm to persons served by the program;
F. any evaluations of the program by persons served or their families;
G. relevant facts, conditions, and circumstances concerning the operation of the program; and
H. any aggravating or mitigating factors related to the violation.
Minn. R. 9543.1060, subp. 2.
Relator argues that the commissioner’s decision to revoke her license was arbitrary and capricious because the “two incidents do not show a chronic or severe violation of law or rule to justify the determination made by the commissioner.” Relator bases this argument on her theory that (1) the first incident was not “serious,” and (2) since the children’s parents support relator, the commissioner did not consider the effect of the violation on those served by the program.
We disagree. The commissioner properly considered the nature, chronicity, or severity of the violation and the effect of the violation on the persons served by the program. SeeMinn. Stat. §§ 245A.06, subd. 1, .07, subd. 1. Contrary to relator’s assertion, the first incident involving the young girl at the park was “serious.” Although she suffered only a scraped nose, the girl was unsupervised and discovered crying and bleeding by strangers. It took the strangers over five minutes to locate relator, who was talking on her cell phone in an area where she could neither see nor hear the child. Fortunately, the strangers acted responsibly, but little imagination is required to predict a far more regrettable scenario. Because this was relator’s first violation, she received a correction order – the least severe penalty. Nonetheless, the order of revocation appropriately described the incident as “serious.”
The second incident, occurring just over a year after relator’s first infraction for inadequate supervision, posed a direct threat to the health and safety of J.K. and the other children. Based on the two incidents, the commissioner could reasonably conclude that “continued operation of the program is not in the best interest of persons served by the program and would pose an unacceptable risk of harm to persons served by the program.” Minn. R. 9543.1060, subp. 4.
Although relator argues that the commissioner should have given more substantial weight to the opinions of Scott County, the Apple Valley Police Department, and the children’s parents, the decision to impose a particular sanction lies within the commissioner’s sole discretion. Minn. Stat. § 245A.07. Moreover, it was proper for neither the ALJ nor the commissioner to give substantial weight to parent testimonials since, as aptly noted by the ALJ, “[t]he issue is not whether [relator] is a good person in whom the parents have confidence, but whether there was inadequate supervision on one occasion. None of the parents who testified were present at the time of the pool incident.”
Because the commissioner considered the proper factors in reaching his decision and the commissioner’s conclusions of law were based on adequate factual findings, the decision to revoke relator’s license is not arbitrary and capricious. Consequently, we conclude that the commissioner did not err in affirming the DHS’s revocation of relator’s license.
 Because relator failed to provide a transcript, we need not address relator’s argument that the commissioner erred by considering evidence outside the record.