Kelly v. Department of Health and Rehabilitative Services, 91-02310

• Decision Date: 30 December 1992
• Docket Number: No. 91-02310,91-02310
• Citation: 610 So.2d 1375
• Parties: 18 Fla. L. Week. D227 Leslie F. KELLY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1375

610 So.2d 1375

18 Fla. L. Week. D227

Leslie F. KELLY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 91-02310.

District Court of Appeal of Florida,

Second District.

Dec. 30, 1992.

Marshall G. Slaughter, Winter Haven, for appellant.

No appearance for appellee.

HALL, Judge.

The appellant, Leslie F. Kelly, challenges a final order entered by the Department of Health and Rehabilitative Services (HRS), rejecting his request for an expunction of his name from the Child Abuse Registry as a confirmed perpetrator. Kelly contends HRS erred in concluding that his plea of no contest to criminal charges of child abuse required a finding that Kelly was in fact a confirmed perpetrator of such abuse. We agree with Kelly's contentions in this regard and reverse.

Kelly assisted his wife in a babysitting service. On January 31, 1990, Kelly was caring for a two-year old child in his wife's absence. On that occasion, it became necessary for Kelly to change the child's diapers. While doing so, the child became irritable and began squirming. In an effort to control the child and keep him from falling off of the changing table, Kelly, admittedly, struck the child one time on the buttocks.

Later that same day when the child returned to his home, his parents noticed what appeared to be bruises and abrasions on the child in the area of his scrotum. There were also red marks on the child's buttocks. The child was immediately taken to the hospital and, shortly thereafter, an HRS investigation of Kelly ensued. The investigation resulted in a verification of complaints that the child had been subjected to "bruises/welts," "excessive corporal punishment/beatings," and "sexual molestation" by Kelly. Kelly was subsequently criminally charged and convicted of child abuse upon a no contest plea.

Upon verifying the instant complaints against Kelly, HRS informed Kelly that he would be placed in the Florida Protective Services System as a confirmed perpetrator of child abuse. That is, his name would be placed in the Child Abuse Registry. As provided by section 415.504(4)(d)(1)(b), Florida Statutes (1991), Kelly filed a request with HRS to amend its Child Abuse Registry by expunging his name therefrom. HRS, however, denied the request. Kelly thus requested an administrative hearing on the matter pursuant to section 415.504(4)(d)(1)(b) and Chapter 120, Florida Statutes.

After a full hearing, the administrative hearing officer found HRS failed to carry its burden of proof that a confirmed act of child abuse had taken place. Specifically, the hearing officer found that HRS failed to show that Kelly's proven conduct in fact constituted abuse or that the marks found on the child resulted when Kelly "smacked" the child. The hearing officer thus entered an order recommending that HRS amend its confirmed child abuse report and expunge Kelly's name from its records as a confirmed perpetrator.

HRS filed exceptions to the hearing officer's recommended order, contending that, pursuant to section 415.503(10), it would be proper to classify Kelly as "indicated-perpetrator undetermined" because there was some evidence of abuse or neglect. Under those circumstances, Kelly's name would be removed from the abuse registry as a confirmed perpetrator, but would thus remain with the aforementioned "indicated-perpetrator undetermined" classification.

The above-noted exceptions notwithstanding, HRS thereafter entered a final order stating that it adopted the hearing officer's conclusions of fact and, for the most part, conclusions of law, but the fact Kelly pled no contest to charges of child abuse and was adjudicated guilty thereof by a court of law, confirmed the abuse. HRS thus, again, refused Kelly's request for expunction.

Section 120.57(1)(b)(10), provides:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the 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 law.

Though the final order entered by HRS purports to adopt the hearing officer's findings of fact, HRS rejects the hearing officer's conclusions of law to the extent they are inconsistent with the following:

A person who pleads nolo contendere to the criminal offense of child abuse ... is disqualified from licensure or employment as a caretaker in a child care facility. Section 402.305(1)(a)(19), Florida Statutes (1989). [Footnote omitted.] Likewise, the statutory disqualification is triggered by a confirmed report of abuse in the abuse registry.

Facts established in a criminal prosecution may not be relitigated in an administrative forum. Lora v. Department of State, 569 So.2d 840 (Fla. 3d DCA 1990); McGraw v. Department of State, 491 So.2d 1193 (Fla. 1st DCA 1986); The Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979).

Pursuant to chapter 402, a no contest plea to child abuse, alone, disqualifies one from licensure or employment as a caretaker--irrespective of whether the...