[Cite as Elam v. Cuyahoga Cty. Dept. of Emp. & Family Servs.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95969

CAROLYN J. ELAM PLAINTIFF-APPELLANT

vs.

CUYAHOGA COUNTY DEPARTMENT OF EMPLOYMENT AND FAMILY SERVICES, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-715032

BEFORE: Celebrezze, J., Blackmon, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: July 21, 2011 FOR APPELLANT

Carolyn J. Elam, pro se 681 East 125th Street Cleveland, Ohio 44108

ATTORNEYS FOR APPELLEES

William D. Mason Cuyahoga County Prosecutor BY: Francis X. Cook Assistant Prosecuting Attorney 1641 Payne Avenue Room 505 Cleveland, Ohio 44114

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, Carolyn Elam, appeals from a decision of the Cuyahoga County

Common Pleas Court affirming the revocation of her Type B daycare provider certificate.

Appellant, proceeding pro se, claims employees of the Cuyahoga County Department of

Employment and Family Services (“EFS”), as well as the hearing officer at her

administrative review hearing, acted in concert to vindictively terminate her certification.

After a thorough review of the record and law, we reverse and remand.

{¶ 2} In 2001, appellant applied for and received certification as a Type B

daycare provider. This allows an individual to provide publicly-funded daycare services

for up to six children at one time. R.C. 5104.01(F) and (SS). From 2001 to 2009,

appellant maintained her certification, passing biannual inspections with a somewhat

spotty record. In October 2009, EFS employee Mae Houston attempted to call appellant to set up an inspection of her home. She called the telephone number listed in EFS’s

computer database, but discovered that this number belonged to someone else. After

numerous attempts to contact appellant by phone were unsuccessful, on October 30, 2009,

Houston drove to appellant’s home for an unannounced inspection. She got out of her

vehicle and observed two dogs in the yard, one tied up and one running loose. She

testified at the revocation hearing that the loose dog began to walk toward her and that

she got back in her car and left without leaving her card or attempting to contact anyone

inside. Houston then sent appellant a notice that EFS had decided to revoke her

certificate on November 5, 2009. The notice provided that appellant failed to cooperate

with EFS in the certification process by being unavailable for inspections, a violation of

Ohio Administrative Code (“O.A.C.”) 5101:2-14-06(4), and that she failed to maintain a

working wired telephone line in violation of O.A.C. 5101:2-14-20(E).

{¶ 3} Appellant sought to appeal this determination, and an administrative review

hearing was held before Administrative Appeals Officer Kathie Newton on December 8,

2009. At the hearing, Houston and Child Care Certification Supervisor Shareefah

Thorton-Saleem presented their attempts to contact appellant using the incorrect phone

number, and they stated that appellant had not given EFS an updated phone number.

Appellant stated that she had changed her phone number several years before and that her

former contact at EFS had no problems contacting her by phone. Houston and

Thorton-Saleem also brought up appellant’s spotty inspection history, which included a

few repeated violations, her failure to bill for services in over a year, and the two dogs Houston observed on the property. Appellant admitted that one of the dogs had damaged

her telephone line trying to escape a fenced area of her yard.

{¶ 4} Hearing Officer Newton determined that appellant had failed to cooperate

with inspections and that she did not have a working phone line. She affirmed EFS’s

decision to revoke appellant’s certificate.

{¶ 5} Appellant then filed a complaint with the common pleas court against

Houston, Newton, Thorton-Saleem, and EFS. The attorney representing EFS advised

appellant that the proper recourse was an administrative appeal before the common pleas

court rather than a civil complaint, and the action was converted accordingly.

{¶ 6} Appellant submitted to the court several documents demonstrating that EFS

had her updated phone number as early as 2007. It appears that in 2009, her phone

number was inexplicably reset in the computer system to her previous number.

Appellant provided no fewer than seven documents demonstrating that EFS had her

correct phone number in their files. After receiving these documents, EFS withdrew for

consideration any reliance on the improper phone number, but insisted that the revocation

was still proper. The trial court affirmed finding, “[t]his court finds that said decision is

supported by substantial, reliable [and] probative evidence in accordance with the law.”

{¶ 7} Appellant appealed to this court assigning 15 errors,1 which can be grouped

into three categories. The first category consists of errors that do not relate to the

Appellant’s assignments of error are lengthy and confusing; therefore, they are summarized 1

within this opinion. determination of the common pleas court. These errors include violations of appellant’s

due process rights during the administrative proceedings and sundry other alleged errors

that occurred during the administrative hearing. These errors will not be addressed

because they are outside the scope of this administrative review.

{¶ 8} The second category addresses the actions of the attorney representing EFS

at a pretrial hearing before the common pleas court. Appellant claims this attorney

inappropriately convinced her to change her complaint into an administrative appeal.

Again, these claimed errors are beyond the scope of the limited appeal here and will not

be addressed.

{¶ 9} The third category takes issue with the common pleas court’s affirmation of

the revocation of her daycare certificate. These errors will be addressed.

Law and Analysis

Revocation of a Type B Daycare Certificate

{¶ 10} “In reviewing an administrative appeal under R.C. Chapter 2506, a trial

court considers the ‘whole record,’ including any new or additional evidence admitted

under R.C. 2506.03, and determines whether the administrative order is unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence.” Manlou v. Cleveland Civ. Serv. Comm.,

Cuyahoga App. No. 83214,

. Our review is more narrow in scope.

See Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988),

,

; R.C. 2506.04. We must determine if the trial court abused its discretion in its review of the agency’s decision.

To constitute an abuse

of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore (1983),

,

.

{¶ 11} Pursuant to R.C. 5104.011(G), regulations governing the certification and

review of Type B daycare providers were promulgated under O.A.C. 5101:2-14. Under

R.C. 5104.011(G)(2)(g), the rules include “[p]rocedures for issuing, renewing, denying,

refusing to renew, or revoking certificates.” The Ohio Department of Job and Family

Services promulgated O.A.C. 5101:2-14-40(A), which provides: “An applicant, certified

professional type B or limited home provider, and professional or limited certified

in-home aide shall be informed in writing of the right to request a county appeal review

when questioning the actions of the county department of job and family services

(CDJFS) [EFS in this case] with respect to their certification.” O.A.C. 5101:2-14-6(E)

further specifies that “[i]f the CDJFS denies the application or proposes to revoke a

certificate due to [failure to cooperate with the CDJFS in the certification process], the

CDJFS shall send written notification to the applicant or provider which contain the

following information:

{¶ 12} “(1) The reason for denial or proposed revocation.

{¶ 13} “(2) The rule or statute violated, if applicable.

{¶ 14} “* * *

{¶ 15} “(5) Notice that reapplication for * * * professional certification cannot

occur for * * * five years following the revocation of the certificate * * *.” {¶ 16} While appellant cites to R.C. 119 for support, the Ohio Supreme Court has

recently reiterated that R.C. 119 applies only to state agencies and that the regulation and

certification of Type B daycare facilities falls to county agencies throughout Ohio.

Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs.,

,

,

, ¶12. Therefore, R.C. 119 et seq. are inapplicable to

the present appeal.

{¶ 17} In compliance with O.A.C. 5101:2-14-6(E), EFS sent a notice of

revocation. The notice appellant received on November 5, 2009 stated that her

certificate was being revoked because: (1) she failed to cooperate with inspection, and (2)

she failed to have a working phone line. There was no reliable, credible evidence that

appellant failed to cooperate with the inspection and certification process. This reason

was based on the perceived failure of appellant to update her phone number with EFS and

its inability to contact her. EFS acknowledged that it had appellant’s phone number

listed in several places within its records. They withdrew this reason for consideration to

support revocation before the common pleas court.

{¶ 18} In regard to the second listed reason, during the administrative review

hearing, appellant stated that she no longer had the dogs in her yard because one tore

down her phone line and electrical box trying to escape from a fenced-in area. EFS

points to this testimony as some reliable, credible evidence justifying revocation.

However, appellant produced a receipt from AT&T showing that the line was repaired on November 14, 2009. 2 This is evidence that appellant maintained the line and had it

repaired in a reasonable manner after it was damaged.

{¶ 19} EFS argued before the common pleas court that “Ms. Houston was not able

to complete the inspection as required by O.A.C. 5101:2-14-03 because she was not able

to either contact [appellant], due to her not having a working phone, or get to her door,

because of the presence of the loose dog.”

{¶ 20} There is no evidence in the record that demonstrates appellant’s phone was

not working at the time Houston tried to schedule an inspection. Houston never called

the correct phone number, and at the hearing no one asked appellant when the dog

damaged the phone line. Given that appellant testified she got rid of the dogs after one

tore up the phone line, and the dogs were still at appellant’s home when Houston tried to

perform an unannounced inspection, appellant’s phone line was likely functional at that

time and at the time she received the revocation notice. No evidence exists in the record

to support the conclusion that appellant failed to cooperate with EFS in the certification

process. The agency’s inability to contact appellant by phone was of their own making.3

{¶ 21} The remainder of the evidence discussed at the hearing was not a valid basis

for revocation. Appellant’s prior history of inspections and a few instances of

Appellant stated in her brief and at oral arguments that the line was only inoperable for a 2

few days, while EFS maintained the line was inoperable for longer. There is nothing in the record indicating the length of time the line was inoperable.

Houston was prevented from inspecting appellant’s home because there was a loose dog on 3

the premises, a dog appellant claimed was only a puppy. However a decision to revoke made after only one attempt to contact appellant without something more is arbitrary and capricious. noncompliance should not have served as the basis for revocation. She was found to be

in compliance with all requirements on her two most recent inspections. If EFS wished

to revoke her certificate for these reasons, it should have done so when she was found to

be out of compliance and given her proper notice. Newton equated past instances of

noncompliance with regulations found during inspections as instances of a failure to

cooperate. Noncompliance is not the same as failing to cooperate with the inspection

process.

{¶ 22} EFS also found that appellant had not billed the state for services in over a

year. According to O.A.C. 5101:2-14-04(K), if a daycare provider does not provide

services for six months or more, EFS could decide to not renew the provider’s certificate.4

However, as the hearing officer noted, appellant was not given notice of this violation,

and it was not a basis on which the hearing officer affirmed revocation. Further, this

provision does not provide a means to revoke a certificate, only that EFS may decline to

renew the certificate. Therefore, it cannot serve as a basis for revocation before the

common pleas court.

{¶ 23} EFS also argues that the keeping of a dog is grounds for termination.

O.A.C. 5101:2-14-19(A)(14) specifies that “[a] pet or animal shall be permitted if it

presents no apparent threat to the safety or health of the children.” It goes on further to

establish certain criteria for the care and management of the pet and notification to care

This regulation specifically states, “[t]he CDJFS may choose not to renew a certificate for 4

providers who have not provided publicly funded child care services to residents of Ohio for more than six months.” givers of children in the care of the provider.5 It does not require notice to EFS. It does

require the care giver to maintain records of inoculations, which appellant testified she

had. Further, there is no evidence that the dogs were an apparent threat. No testimony

or evidence established that they were vicious, hostile, or had attacked anyone. EFS

failed to provide any evidence that appellant breached a regulation by keeping two dogs

on the premises.

{¶ 24} We are left with appellant’s own testimony that she failed to have a working

land-based phone line at all times. No one at the administrative hearing questioned

appellant about the length of time the phone line was inoperable, when the line was

damaged, or whether it was repaired. Appellant later alleged that the line was repaired

within a few days of being damaged and produced a receipt from AT&T showing when

the line was repaired. This invoice establishes that appellant maintained a phone line in

a reasonable manner. No evidence exists in the record to the contrary. It is reasonable

for a service call for a utility company to take a few days.

{¶ 25} EFS’s decision to revoke appellant’s Type B daycare certificate was

arbitrary and unsupported by the evidence in the record. The trial court erred in

It states: “(a) All pets shall be properly housed, cared for, licensed and inoculated. All local 5

ordinances governing the keeping of animals (exotic or domesticated) shall be followed. Verification of license and compliance with local requirements and inoculations, for each pet requiring such license or inoculations, or regulated by local government shall be on file at the provider’s home for review by the * * * (CDJFS) representative. (b) Children shall not be directly exposed to animal urine or feces. (c) Caretakers shall be notified in writing as part of the JFS 01634 ‘Caretaker/Provider Agreement’ * * *.” A copy of this notification shall also be submitted to the CDJFS and maintained in the provider’s file. affirming the revocation of appellant’s Type B daycare certification when no evidence in

the record provided the basis for such an arbitrary action. Because this resolution

disposes of appellant’s remaining errors, they will not be addressed.

{¶ 26} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover of said appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and MARY J. BOYLE, J., CONCUR