This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1013

 

Patricia A. Salisbury,

Relator,

 

vs.

 

Commissioner of Minnesota Department of Human Services,

Respondent.

 

Filed May 31, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Minnesota Department of Human Services

License No. 234891 R02

 

 

John G. E. Thompson, Staff Attorney, Legal Services of Northwest Minnesota, 1114 Broadway, Alexandria, MN 56308 (for relator)

 

Daniel C. Lee, Assistant Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

 

 

††††††††††† Considered and decided by Dietzen, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

 

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

The Commissioner of Human Services revoked relator Patricia Salisburyís child-care license for interfering with agency efforts to investigate an allegation of maltreatment.† Relator appeals from an order denying her motion for reconsideration of the commissionerís decision, arguing that the commissioner abused his discretion by rejecting the administrative law judgeís recommended licensing sanction.† We affirm.

FACTS

Relator resides in Douglas County with her husband and two children I.S and Z.S.† Relator was licensed to provide child-care at her residence.On August 25, 2003, Douglas County Social Services (DCSS) received a report alleging lack of supervision of relatorís two children as well as some of the day-care children.† The report alleged that Z.S. frequently rode his bike in the middle of the road, blocking cars; that I.S. threw an 18 month-old day-care child face down in a sand pile; and that there was a doll hanging from a tree in relatorís yard with a noose around its neck.† Additional complaints included that the day-care children teased the neighborís dog and yelled and swore at people.† The next day, DCSS received a second report alleging Z.S. was swimming in relatorís backyard pool and that a four-year-old day-care child was leaning over the edge of the pool without an adult present.† Police officers were dispatched to relatorís residence and upon arriving located relator in the backyard.

DCSS workers Ms. Wiebe and Ms. Kleinschmidt visited relatorís home on August 26, 2003, the day of the second report.† They informed relator that they were there to follow up on an earlier report to the agency.† The DCSS workers asked to interview relatorís children.† Z.S. was the only child home, and relator agreed to let Wiebe and Kleinschmidt interview him.† However, when asked if they could use a bedroom for privacy, relator said no and offered the dining room.† Wiebe and Kleinschmidt then asked if they could take Z.S. outside for the interview, and relator agreed.†

A few minutes after Wiebe and Kleinschmidt had begun speaking with Z.S., relator brought I.S. out for an interview.† Wiebe and Kleinschmidt informed relator that when they finished talking to Z.S. they would come ask for I.S.† Shortly thereafter, relatorís husband came out and interrupted the interview.† He refused to allow the interview to continue and became angry.† Wiebe and Kleinschmidt left without completing the interviews, and they told relator that failure to cooperate with the investigative process could negatively affect her child-care license.† Relator indicated that she understood the consequences.†

On August 28, 2003, Kleinschmidt called relator to determine whether she and her husband would cooperate with the investigation.† While relator and Kleinschmidt were on the phone, relatorís husband picked up the extension and interrupted the conversation multiple times, ordering relator to hang up the phone.† Relator was reminded of the potential impact on her license and again indicated that she understood.†

The next day, relator called Kleinschmidt and gave permission for her and Wiebe to interview I.S. but not Z.S.† Relator explained that her husband would not allow any further interviews with Z.S. because of his young age.† Kleinschmidt again cautioned relator that this could have an impact on her license.† That same day, Kleinschmidt drafted a letter recommending the revocation of relatorís license.†

On September 4, 2003, Wiebe and Kleinschmidt interviewed relator at DCSS.† They questioned her regarding the concerns noted in the reports as well as concerns they had developed during their initial visit to her home.† Additionally, Wiebe and Kleinschmidt asked to come to her home that day to investigate concerns about her home and garage.† Relator stated that their visit would be a problem and that her husband would not allow the two workers in the house.† Wiebe and Kleinschmidt again explained that relatorís continued failure to cooperate could jeopardize her child-care license.† Relator became agitated, stating that she was very distressed about the situation and said ď[j]ust take my license.† Take it.† You can have it.Ē

On September 9, 2003, Kleinschmidt informed relator by letter that she was recommending the revocation of relatorís child-care license based upon her failure to cooperate fully during the investigation.† And on November 5, 2003, the Department of Human Services (DHS) issued an order of revocation.†

Relator appealed the revocation of her license on November 12, 2003, and a hearing was held by an administrative law judge (ALJ) on January 16, 2004.† The ALJ issued his findings of fact, conclusions of law, recommendation, and memorandum on February 19, 2004, and stated that because the situation arose over a misunderstanding ďrevocation may be too harsh a penalty to impose upon [relator].Ē† However, on April 19, 2004, the commissioner revoked relatorís license.† Relatorís April 22, 2004, request for reconsideration of the revocation was denied, and this appeal follows.

D E C I S I O N

 

Administrative agency decisions enjoy a presumption of correctness and may be reversed only when they are in violation of constitutional provisions, exceed their statutory authority or jurisdiction, are made upon unlawful procedure, reflect an error of law, are unsupported by substantial evidence, or are arbitrary or capricious.† Minn. Stat. ß 14.69 (2004); In re Revocation of the Family Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003).† The agencyís ruling is arbitrary and capricious if it ď(a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agencyís expertise.Ē† White v. Minn. Depít of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (quotation omitted), review denied (Minn. Oct. 31, 1997).† Additionally, a reviewing court must defer to the agencyís fact-finding process and be careful not to substitute its finding for those of the agency.† In re Burke, 666 N.W.2d at 726.†

Relator argues that the commissionerís decision to revoke relatorís child-care license was arbitrary and capricious and was unsupported by substantial evidence.† ďThe standard of review is not heightened where the final decision of the agency decision-maker differs from the recommendation of the ALJ.Ē† In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (citation omitted).†

Relator claims that she was confused as to the nature of the investigation being conducted by Wiebe and Kleinschmidt.† A licensed child-care provider must grant access to the facilities to the commissioner when an investigation is being conducted.† Minn. Stat. ß 245A.04, subd. 5 (2004).† Failure or refusal to grant access at any time is reasonable cause for the commissioner to immediately suspend or revoke the license.† Id.† Additionally, access to child-care facilities is mandated under Minn. R. 9502.0335, subp. 13 (2004).†

Relator argues that this was simply a misunderstanding as to the nature of the visit from DCSS and that the revocation of her license was too harsh a sanction.† Relatorís testimony is that she believed the investigation was solely in reference to her own children and had nothing to do with her child-care.† She offers no evidence of the misunderstanding other than her testimony, and she testified that Wiebe and Kleinschmidt did not inform her of the potential adverse effects on her license until the September 4 meeting.† However, both Wiebe and Kleinschmidt testified that they explained to relator on numerous occasions the child-care implications of their investigation.†

Relator also states that before imposing a negative licensing action the commissioner must consider several factors.† Relator cites Minn. R. 9543.1060 as authority for this statement and argues in her brief the factors provided in that rule.† However, Minn. R. 9543.1060 has been repealed.[1]† The commissioner is required to consider the nature, chronicity, or severity of the violation, as well as the effect of the violation on the health, safety, or rights of the people served by the program.† Minn. Stat. ß 245A.07, subd. 1 (2004).† And, the imposition of a sanction lies within the discretion of an agency.Ē† In re Licenses of Kane, 473 N.W.2d 869, 877 (Minn. App. 1991) (citing In re Haugen, 278 N.W.2d 75, 80 n.10 (Minn. 1979)), review denied (Minn. Sept. 25, 1991).† This court only reviews for abuse of discretion and does not determine sanctions.† See In re Burke, 666 N.W.2d at 728.†

In this case, the commissioner made the appropriate findings under each of the required factors in the memorandum attached to his decision to revoke relatorís child-care license.† Specifically, the commissioner noted that child-care providers are required to cooperate with agency staff during an investigation by providing access to the facilities and persons for interviews, and that the cooperation of the licensee is critical to determining whether the children in child-care are at risk.† The commissioner determined that relator violated the rules requiring access and cooperation on four separate occasions, despite repeated warnings about the possible adverse consequences of her actions.† Finally, the commissioner determined that relatorís failure to cooperate took place during the most critical period of the investigation and that this made it extremely difficult to determine if the children in relatorís care were at risk.† The commissionerís determinations are supported by the record and were not arbitrary or capricious.† Because the controlling statute provides revocation as a proper sanction, the commissioner did not abuse his discretion in revoking relatorís child-care license.† Therefore, according the requisite deference we owe, and recognizing that the commissionerís determinations were not arbitrary or capricious, we hold that the commissioner did not abuse his discretion in revoking relatorís license, and we affirm.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

[1] Minn. R. 9543.1060 was repealed by statute and enacted on May 24, 2004.† See Ch. 288, Art. 1 ß 83.† Relatorís brief was signed on Nov. 17, 2004, after the rule was repealed.