B.B. v. Department of Health and Rehabilitative Services

• Decision Date: 09 May 1989
• Docket Number: No. 88-2521,88-2521
• Citation: 542 So.2d 1362,14 Fla. L. Weekly 1129
• Parties: 53 Ed. Law Rep. 1022, 14 Fla. L. Weekly 1129 B.B., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1362

542 So.2d 1362

53 Ed. Law Rep. 1022, 14 Fla. L. Weekly 1129

B.B., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 88-2521.

District Court of Appeal of Florida,

Third District.

May 9, 1989.

DuFresne and Bradley, P.A., William DuFresne and Loraine Hoffman, Miami, for appellant.

R.S. Power, Asst. Gen. Counsel, for appellee.

Before FERGUSON, JORGENSON and LEVY, JJ.

JORGENSON, Judge.

B.B., a Dade County public school teacher, appeals from an order of the Department of Health and Rehabilitative Services (HRS) denying her request for expungement of a confirmed finding of child abuse entered against her. For the following reasons, we reverse and remand this cause to HRS.

On October 29, 1987, B.B., a first-grade teacher, intervened in a shoving match between her students who were standing in line waiting to enter a classroom. ¹ B.B. placed her hand on the shoulder of L.G., the student who the teacher believed was the troublemaker and pulled L.G. out of the line of students. B.B. accidentally caught some of L.G.'s long hair in her hand and felt "something give" as she guided the child out of the line. B.B. let go of L.G.'s shoulder, noticed that ten to twelve strands of hair had come out, apologized to L.G., and gave her a kiss. L.G. did not cry out, complain, or appear to be hurt. Later that same day, B.B. noticed that a considerable amount of L.G.'s hair had fallen out and reported the incident to the principal. After receiving a report of abuse, HRS began investigating the incident.

One week after the incident, L.G. was examined by a pediatrician at Jackson Memorial Hospital at the request of HRS. The pediatrician found hair loss in an area 3"' by 1 1/2"', a "bluish purple bruise" in the area, and broken hairs of different lengths. She classified the injury as traumatic hair loss and concluded that neither tuberculosis medication which the child had been taking six months earlier nor a skull fracture or concussion suffered by L.G. on October 20, 1987, would have caused the injury. ²

HRS investigated the incident, confirmed the report of abuse, identified B.B. as the abuser, and placed the report in its abuse registry maintained pursuant to section 415.103, Florida Statutes (1987). B.B. moved to expunge the report pursuant to section 415.504(4)(d)(3)(c); HRS denied that request, and B.B. requested an administrative hearing.

The hearing officer, after receiving testimony from HRS investigators, L.G., L.G.'s mother, a school secretary, and B.B., concluded that although B.B. admitted causing L.G.'s hair loss the testimony showed that "the injury was the result of an accidental happening and was not attributable to either an intentional or negligent act on the part of B.B." The hearing officer further concluded that B.B. had not committed abuse and recommended that HRS grant her request for expungement from the abuse registry. The hearing officer explicitly relied upon HRS's order in the case of H.H. v. DHRS, DOAH No. 86-454 OC (DHRS, June 15, 1987), in which HRS found that no abuse had occurred when a Child Detention Child Care Worker had accidentally closed the door on the wrist of a child in his care.

HRS adopted the hearing officer's findings of fact but denied B.B.'s request for expungement. The agency's order stated that "[i]ntent to injure is not dispositive. The dispositive issue is whether the force used by respondent to restore order and discipline in a line of first-grade children was reasonable and therefore privileged." In the section of its order entitled "conclusions of law," HRS found "the force used by respondent clearly excessive " (emphasis added) and stated that "[t]he use of excessive force constitutes abuse under Chapter 415."

In finding that B.B. used excessive force when removing L.G. from the line, HRS improperly substituted its own factual finding for the factual findings of the hearing officer. "The agency in its final order ... may not reject or modify the findings of fact [of the recommended order] unless the agency first determines from a review of the complete record, and states with particularity in its order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of the law." Section 120.57(1)(b)(10), Florida Statutes (1987). HRS "was not free to reweigh the evidence presented at the hearing, but rather was limited to determining whether some competent substantial evidence was presented which would support the hearing officer's conclusions." South Fla. Water Management Dist. v. Caluwe, 459 So.2d 390, 394 (Fla. 4th DCA 1984) (citations omitted); see also Sneij v. Department of Professional Reg., 454 So.2d 795 (Fla. 3d DCA 1984) (where hearing examiner's findings based on competent substantial evidence, agency had no authority to reject examiner's findings and substitute its own findings).

Where issues "are determinable by ordinary methods of proof through the weighing of evidence and the judging of the credibility of witnesses," they are "solely the prerogative of the hearing officer as finder of fact." Holmes v. Turlington, 480 So.2d 150, 153 (Fla. 1st DCA 1985).

As the trier of fact, the hearing officer made no finding that B.B.'s use of force was excessive. HRS, in reviewing the recommended order, could not make an entirely new factual finding that B.B. used excessive force and then use that finding to deny B.B.'s motion for expungement.

Although HRS characterized its...