Social Services — childcare licenses

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Wisconsin Court of Appeals

Civil

Social Services — childcare licenses

A person is not permanently barred from a license for to provide group childcare, despite convictions for food stamp and public assistance offenses.

“Given the statutory language and its context, see State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110, we conclude that a conviction under WIS. STAT. § 49.127(2m) (1989‑90) does not, as a matter of law, show that an offender has partaken in a ‘fraudulent activity’ regarding food stamps for purposes of permanent prohibition under WIS. STAT. § 48.685(5)(br)5. First, nowhere does this subsection mention fraud. Indeed, the offense defined by § 49.127(2m) does not include an element intrinsic to fraud: the intent to induce another party to act to its detriment. See BLACK’S LAW DICTIONARY 685 (8th ed. 2004) (defining ‘fraud’ as ‘[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment’); see also Derbeck v. Albright, 186 Wis. 515, 203 N.W. 337, 339 (1925) (defining fraud as ‘“[a] generic term” that “embraces all the multifarious means which human ingenuity can devise, and are resorted to by one individual to get an advantage over another by false suggestions, or by the suppression of the truth.”’) (Crownhart, J., dissenting; citation omitted). Furthermore, we note that § 49.127(2m) references a recipient’s requirements under 7 USC § 2015(c)(1), and that, notably, that section of the United States Code does not discuss fraud. See 7 USC § 2015(c)(1). On the other hand, a different section of the code, 7 USC § 2015(b), does discuss fraud, and defines it as a two-prong offense involving: (1) the making of a ‘false or misleading statement,’ with (2) the intent to use, present, transfer, acquire, receive, or possess program benefits. See id. Because the second prong is not required for a violation under § 49.127(2m), we conclude that further factual inquiry is required to determine whether Jamerson’s failure to report ‘changes in income, assets, or other facts’ as required by the federal food stamp law was in fact done with the intent to induce another to act to his or her detriment. See, e.g., BLACK’S LAW DICTIONARY 685 (8th ed. 2004). In other words, there is an issue of fact here entitling Jamerson to a hearing. See WIS. STAT. § 227.42(1).”

Reversed.

Recommended for publication in the official reports.

2011AP593 Jamerson v. DCF

Dist. I, Milwaukee County, Moroney, J., Curley, J.

Attorneys: For Appellant: Kastner, Jill M., Milwaukee; For Respondent: Sahar, Nadim, Madison