Hardee v. Department, No. 62436-9-I.

• Court: Court of Appeals of Washington
• Writing for the Court: Grosse
• Citation: 152 Wn. App. 48,215 P.3d 214
• Parties: Kathleen HARDEE, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, DEPARTMENT EARLY LEARNING, Respondent.
• Decision Date: 27 July 2009
• Docket Number: No. 62436-9-I.

215 P.3d 214 152 Wn. App. 48 Kathleen HARDEE, Appellant,
v.
STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, DEPARTMENT EARLY LEARNING, Respondent. No. 62436-9-I. Court of Appeals of Washington, Division 1. July 27, 2009. Publication Ordered September 3, 2009.

[215 P.3d 215]

Carol Farr, The Law Offices of Leonard W. Moen & Associates, Renton, WA, for Appellant.

Patricia L. Allen, Jay Douglas Geck, Offices of the Attorney General, Seattle, WA, for Respondent.

[215 P.3d 216]

GROSSE, J.

¶ 1 Due process is satisfied by application of the preponderance of the evidence standard to the revocation of a home child care license, as provided by RCW 43.215.300(2). Here, the review judge's factual findings are supported by substantial evidence. The review judge correctly applied the law, and the factual findings support the review judge's legal conclusions. We affirm the decision to revoke Kathleen Hardee's home child care license.

FACTS

¶ 2 Kathleen Hardee provided child daycare services in her home pursuant to a home child care license issued by the Department of Social and Health Services.¹ In July 2006, the Department of Early Learning (the Department) received a referral from the King County Sheriff's Office reporting that Hardee's 19-year-old son, William, who lived with Hardee in her home out of which she operated the daycare, had been accused of having oral sex with a 3-year-old child he was babysitting. The child did not attend Hardee's daycare and the incident did not take place at the daycare. William was charged with first degree rape of a child, pleaded guilty to first degree child molestation, and was incarcerated.

¶ 3 The Department summarily suspended Hardee's license the day it received the referral. On Hardee's motion, an administrative law judge (ALJ) stayed the suspension of the license pending a hearing.

¶ 4 The Department conducted an investigation after the July 2006 referral regarding the incident with Hardee's son. In November 2006, the Department revoked Hardee's license. The Department cited a number of incidents prior to July 2006 that showed the extent of William's mental and behavioral problems.² After William's conviction in 2001 of harassment, intimidation of a student, and fourth degree assault for threatening a person at school with a knife, Hardee agreed in writing to keep William off the premises during the hours the daycare center was in operation. In March 2003, Hardee signed a safety plan in which she agreed to never allow William to have unsupervised access to children. In October 2004, Hardee asked for a waiver of the regulation that would require William, because of his assault conviction, to be off the premises. Hardee assured the Department that William was never unsupervised when daycare children were present. The Department granted the waiver. The Department granted a second, similar waiver in April 2005, conditioned on William always being supervised and never being left unattended with children in the daycare.

¶ 5 In 2006, the Department determined that Hardee violated the conditions of the waivers and the safety agreement by allowing William to have unsupervised access to children in the daycare. One parent arrived at the daycare and found William changing his young daughter's diaper in a room with no other adult present. Another parent informed the Department that William was left alone with the children in the morning and afternoon while Hardee ran errands. The Department also claimed that persons were living in Hardee's home whom Hardee failed to report to the Department and who did not go through the required criminal background check. The final basis for the Department's decision to revoke Hardee's license was its conclusion that she operated her daycare after her license had been summarily suspended in July 2006.

¶ 6 Hardee requested an administrative hearing on the license revocation. After the hearing, the ALJ issued an initial decision finding that Hardee's license should not be revoked and rescinding the Department's

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revocation. The Department petitioned for review of the initial decision.

¶ 7 The review judge issued a review decision and final order reversing the ALJ's initial order and revoking Hardee's license. The review judge concluded that the Department proved that Hardee violated the 2003 safety agreement and the terms of the 2004 waiver and allowed William to have unsupervised access to a child under her care. The review judge also concluded that the Department proved that Hardee lacks the personal characteristics an individual needs to provide care to children. The review judge concluded that the Department did not prove that Hardee had people living in her home who had not been cleared to be there, but that the Department did prove that she allowed "numerous unidentified people" to be in and around the children she had under her care "on a more or less regular basis." This was one basis for the review judge's conclusion that Hardee lacked the requisite characteristics to care for children.

¶ 8 Hardee petitioned for reconsideration of the final order. The review judge denied the petition for reconsideration. Hardee petitioned for review to the superior court. The superior court affirmed the review judge's decision and order, finding that the review judge correctly identified the errors in the ALJ's decision concerning evidence of licensing violations and that, but for such errors, the ALJ should have upheld the revocation of Hardee's license.

ANALYSIS

Standards of Review

¶ 9 Under the Administrative Procedure Act (APA), chapter 34.05 RCW, in reviewing an agency order in an adjudicative proceeding, a court may grant relief from the order only if it determines that: (1) the order, or the statute or rule on which the order is based, is unconstitutional on its face or as applied; (2) the order is outside the agency's statutory authority or jurisdiction; (3) the agency has engaged in an unlawful procedure or decision-making process or failed to file a prescribed procedure; (4) the agency erroneously interpreted or applied the law; (5) the order is not supported by substantial evidence when viewed in light of the whole record before the court; (6) the agency has not decided all issues requiring resolution by the agency; (7) a motion for disqualification was made and improperly denied; (8) the order is inconsistent with an agency rule; or (9) the order is arbitrary or capricious.³ As the party asserting the invalidity of the final order, Hardee has the burden of demonstrating invalidity.⁴

¶ 10 We apply the standards of the APA directly to the administrative record, sitting in the same position as the superior court.⁵ We review factual findings to determine whether they are supported by substantial evidence.⁶ In reviewing factual findings under this provision, we will overturn an agency's factual findings only if they are clearly erroneous and we are "`definitely and firmly convinced that a mistake has been made.'"⁷

¶ 11 We review legal conclusions de novo to determine whether the review judge correctly applied the law, including whether the factual findings support the legal conclusions.⁸

¶ 12 "Constitutional challenges are questions of law subject to de novo review."⁹ Statutes are presumed constitutional, and the party challenging the constitutionality of a statute has a heavy burden to establish that

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the statute is unconstitutional beyond question.¹⁰ In order to declare a statute unconstitutional, the conflict between the statute and the constitution must be plain "beyond a reasonable doubt."¹¹

Review of Revocation

¶ 13 By statute, in an adjudicative proceeding regarding the revocation of a license to operate a daycare, the decision of the Department of Early Learning must be upheld if it is supported by a preponderance of the evidence.¹² Hardee argues that due process requires that review of a home child care license revocation be under the clear and convincing standard, not the preponderance of the evidence standard.

¶ 14 In arguing for the clear and convincing standard of review, Hardee relies on Ongom v. State, Dep't of Health, Office of Prof'l Standards¹³ and Nguyen v. State, Dep't of Health Med. Quality Assurance Comm'n.¹⁴ In Ongom, the court reversed the suspension of a nursing assistant's license where the agency relied on the preponderance of the evidence standard and held that the clear and convincing evidence standard applies. Similarly, in Nguyen, the court reversed the revocation of a medical license because the agency revoked the license under the preponderance of the evidence standard. Neither Ongom nor Nguyen compel application of the clear and convincing evidence standard of review here. Both of those cases involved a professional license of a particular individual. Here, as the Department argues, the license issued to Hardee was in the nature of a site license, obtainable by the licensee's completion of 20 clock hours of basic training approved by the Washington State training and registry system.¹⁵

¶ 15 In her reply brief, Hardee argues that under Chandler v. State, Office of Ins. Comm'r,¹⁶ the clear and convincing evidence standard should apply to the revocation of her license. Chandler involved the revocation of an insurance agent's license. The review judge applied both the preponderance of the evidence standard and the clear and convincing evidence standard. This court, without comment or analysis, stated that the review judge was correct in applying both standards. We are not prepared to extend the rule of Ongom and Nguyen to the revocation of Hardee's home child care license based on Chandler. The court's opinion on this issue in Chandler is not useful given the absence of analysis, and it is clear from the opinion that, regardless of the standard of review, revocation of the appellant's license was proper. As noted, the Department's argument that Hardee's...