Revocation of Day-Care License “Shocking to One’s Sense of Fairness”

The Third Department determined revocation of petitioner’s day-care license was too severe a penalty for a situation in which two children were left unsupervised for 20 to 30 minutes. The children, ages 11 and 13, had a cell phone and were never in any imminent danger of harm:

Although petitioner violated a regulation, the penalty of revocation is too disproportionate to this isolated violation that was the result of extenuating circumstances. An administrative penalty “must be upheld unless it is ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness'” …, “thus constituting an abuse of discretion as a matter of law” … , * * *Based on the children’s ages and their possession of a cell phone that they used to contact petitioner, the children were not put in danger by this incident, despite the potential danger that existed from children being left unsupervised …. . Although the regulation makes clear that it is not appropriate to leave children unsupervised (see 18 NYCRR 417.8 [a]), petitioner did not violate the regulation intentionally, as she had established a plan for the supervision of the children in her absence, and the violation occurred as “the result of extenuating circumstances”… . Matter of Lewis v NYS Office of Children and Family Services, 516650, 3rd Dept 2-20-14