STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1914

) WEST PENSACOLA BAPTIST WEE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 13, 1987. Sheila Ward, Director of West Pensacola Baptist Wee Center, and David Shofner, West Pensacola Baptist's pastor, were present at hearing, although neither qualified under Rule 221-6.008, Florida Administrative Code, as a qualified representative. The petitioner was represented by counsel:

Rodney M. Johnson, Esquire Post Office Box 8420 Pensacola, Florida 32505-8420

By administrative complaint dated March 23, 1987, petitioner Department Of Health and Rehabilitative Services (HRS) alleged that respondent West Pensacola Baptist Wee Center (Wee Center), "violated the provisions of Chapter [sic] 402.301, Florida Statutes, and the provisions of 10M-12, Florida Administrative Code, in that the Wee Center has allowed a policy to exist in its operation of not reporting incidents of child abuse as evidenced by . . . not reporting child abuse on or before April 29, 1986, and on or before March 12, 1987." The administrative complaint alleges that, in both cases, "the director of the center was aware of the abuse, documented the abuse, counseled concerning the abuse, but failed to report or require employees to report the abuse as required by law (Section 415.504, Florida Statutes)"; and that the Wee Center was guilty of "a Class II violation" for which a seventy-five dollar ($75.00) fine should be levied.

FINDINGS OF FACT

1. Respondent West Pensacola Baptist Wee Canter (Wee Center) holds license No. DC 1075 E, issued by petitioner Department of Health and Rehabilitative Services (HRS) under Chapter 402, Florida Statutes.

   
   

   M. C.

   
   

2. On April 18, 1986, and for the two months next preceding, Sheila Ward and other Wee Center staff observed M. C., who was born on February 9, 1981, "sexually acting out." M. C. had attended Wee Center for several years, before

   he began behaving in ways which, in two months' retrospect, seemed to evince more than "normal curiosity."

   
   

3. On April 18, 1986, a teacher at Wee Center listed the specific behavior in question, and Mrs. Ward made a report to HRS. The list read:

   
   

   1. Telling another child (boy) to kiss a child's penis.

   2. Kissing anothor child on the rectum.

   3. Telling a girl to pull down her panties and kissing her on the vaginal area.

   4. As a girl was climbing up on a bar putting his hands in her vaginal area.

   5. Pulling 2 girls down and kissing them in their vaginal area.

   6. Asking girls to kiss him.

   7. Talking other boys into doing some of the same things named above.

      
      

4. No competent evidence that M. C. had been "sexually acting out" for more than two months before Wee Center reported it to HRS was adduced, although there was hearsay to that effect and such an allegation reached HRS' Sue Brown, whose duties included inspecting day care centers.

   
   

5. When Ms. Brown visited Wee Center on May 5, 1986, for a routine inspection antecedent to renewal of Wee Center's license, she told Ruby Taylor, Wee Center's assistant director, that all suspected child abuse had to be reported. On an "Inspection Supplement Sheet," she wrote

   
   

   7. Please make all staff aware that any suspected cases of abuse or neglect must be reported to the agency immediately. This is a state law. Perhaps everyone should read the child abuse and neglect pamphlets again. Petitioner's Exhibit No. 3

   
   

   Ms. Brown made no reference to M. C. or to any other child either on her inspection report or when she spoke to Ms. Taylor, and Ms. Taylor did not make the connection.

   
   

   D. M.

   
   

6. On March 9, 1987, D. M.'s mother spanked D. M., then two years old, with a belt, leaving bruises and welts that were visible the next day. Mrs. Norton, a teacher at Wee Center, noticed "these places on his bottom," Petitioner's Exhibit No. 1, when she helped him pull his pants up at 11:25 a.m. on March 9, 1987, and asked him what had happened. When he told her that his mother had spanked him with a belt for not listening, she made a written report by filling out a form at Wee Center.

   
   

7. Mrs. Ward spoke to D. M.'s mother when she came for him on the 10th. After his mother admitted spanking D. M. with a belt, according to Mrs. Ward's Contemporaneous account, she

   
   

   told her that punishment was too severe for a

   2 year old and I as well as staff were legally Obligated to report bruising. She

   agreed this was not SOP but needed some new direction for discipline. She understood that any indication of this accident happening again would be reported. I agreed to offer alternate methods for discipline.

   Petitioner's Exhibit No. 1.

   
   

   Even though, by her own admission, Mrs. Ward knew she was under a legal obligation to report the incident to HRS, she decided against doing so. D. M.'s mother was a fellow member of the congregation, in whose home she had visited.

   
   

8. Also on March 10, 1987, for apparently unrelated reasons, D. M. was seen at Navy Hospital, where Beth Blair, a social worker, took pictures of bruises on D. M.'s left buttock and right thigh, and made a report to HRS.

   
   

9. Karen Louden, the HRS intake counselor who investigated, spoke to D. M.'s parents on March 10, 1987. They told her both of their children often had marks, including, in one instanco, a black eye. D. M.'s mother said she had no control and could not stop it.

   
   

10. When it came to light that Mrs. Ward had known of the incident on March 9, 1987, but had failed to report it, Merrie Calhoun, another HRS intake counselor, went to the Wee Center and Spoke to Mrs. Ward, who told her she had not reported it "because she felt it was a one time incident." Petitioner's Exhibit No. 1. When Ms. Calhoun reminded her "of [the] child abuse reporting law . . . she state[d] that this will not be a problem in the future." Id.

    
    

    CONCLUSIONS OF LAW

    
    

11. The child care facility licensing statutes authorize HRS to "deny, suspend, or revoke a license or impose an administrative fine not to exceed $100 per violation, par day, for the violation of any provision of ss. 402.301-

    402.319 or rules adopted thereunder." Section 402.310(1)(a), Florida Statutes (1985). Here HRS alleged violations of Section 402.301, Florida Statutes (1985), which states a legislative purpose to establish statewide minimum standards for the care and protection of children in child care facilities" and of Chapter 10M-12, Florida Administrative Code, which sets forth the minimum standards

    
    

12. Rule 10M-12.002(4), Florida Administrative Code, entitled "Training," incorporates by reference "the department's pamphlet 'Child Abuse and Neglect in Florida, a Guide for Professionals,' HRS-Pl 175-17 (Oct. 82)." The pamphlet names daycare workers as among those legally obligated to report suspected child abuse, and warns that a "professional failing to report . . . is guilty of a second degree misdemeanor." The pamphlet states:

    
    

    WHEN TO REPORT SUSPECTED ABUSE OR NEGLECT

    
    

    The most readily identified form of abuse is physical abuse. Injury may be the result of a single episode or may occur repeatedly. It can range in severity from minor to fatal.

    Nevertheless, identifying physical abuse is complicated by the wide acceptance of corporal punishment in our society. The following guidelines are given to help the

    professional to decide if a given incident of corporal punishment constitutes abuse.

    . Any injury requiring medical treatment is outside the range of normal discipline.

    . One bruise may be inflicted inadvertently; however old and new bruises, bruises on the face or bruising in a child less than one year of age suggest abuse.

    . Any punishment that involves hitting with a closed fist or an instrument, kicking, inflicting burns or throwing the child represents abuse regardless of the severity of the resulting injury.

    Sexual abuse is sexual contact between a child and an adult or older child. It may or may not involve physical contact. It may or may not be violent. Non-physical sexual abuse may mean indecent exposure or photography of nude children. Nonviolent abuse means fondling, touching sexual organs, sex play. Violent sexual abuse means forcible rape, sodomy, oral sex.

    Detection of sexual abuse is made difficult when an abuser uses threats, bribery or similar methods to get the child to participate in sexual activity. The child may be told that such activity is okay or that the abuser wants to teach the child about sex. An abuser may tell the child that the way to show love and affection for a parent or relative is through sex. In cases such as these, especially in incest, which is far more common than most people think, the child does not report the abuse. The child may feel he or she has been a willing participant. If the abuse is discovered, the child may feel guilty about getting a friend or relative in trouble. Professionals must be alert to hidden clues indicating that a child may be sexually abused and must exercise the utmost tact if questioning the child. (Emphasis Supplied)

    
    

    Elsewhere the pamphlet states that "[p]roof of abuse or neglect is not required to make a report; reason to believe is all that is required."

    
    

13. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 437,

    491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris v. Turlington, No. 69,561 (Fla.; July 16, 1987). See Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla.

    5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

14. With regard to M. C., the child who acted out sexually, the evidence fell short of a clear and convincing showing that, at any time before a report was in fact made, a legal duty arose to make a report. But the evidence is clear and convincing that Mrs. Ward, respondent's director, learned that D. M. had boon punished by "hitting with an instrument," which left bruises that persisted, on a two-year old child. If she had only suspected as much, she would have been under a legal duty to report.

    
    

15. Taking into account the lack, as far as the record shows, of any previous violations, the severity of the violation, and the conscientiousness of respondent's director who will undoubtedly guard against any recurrence, see Section 403.310(1)(b), Florida Statutes (1985), it is

RECOMMENDED:

That petitioner impose on respondent an administrative fine of fifty dollars ($50.00).

DONE and ENTERED this 4th day of September, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1914

Petitioner's proposed findings of fact Nos. 1-9 and 12 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of fact 10, 11 and 13, the evidence was not clear what happened in February: It might only have been M. C.'s asking the girls to kiss him. The evidence did not show that M. C.'s behavior gave reason to believe there had been sexual contact between M. C. and an adult at any period before the respondent made a report.

COPIES FURNISHED:

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Rodney M. Johnson, Esquire Department of Health and

Rehabilitative Services

160 Governmental Center Pensacola, Florida 32505-0420

Sheila Ward Wee Center

West Pensacola Baptist Church

5213 West Jackson Street Pensacola, Florida 32506

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 87-1914

WEST PENSACOLA BAPTIST WEE CENTER,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that respondent, West Pensacola Baptist Wee Center, pay a fine of

$50.00. The check should be payable to The Treasurer, The State of Florida, and mailed or delivered to

Rodney M. Johnson, Services, 160 Gove

DONE and ORDERED this 15th day of September 1987, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Assistant Secretary for Programs

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Rodney M. Johnson, Esquire Post Office Box 8420 Pensacola, FL 32505-8420

Robert T. Benton, II Hearing Officer

DOAH, The Oakland Building 2009 Apalachee Parkway

Tallahassee, FL 32301

Sheila Ward Wee Center

West Pensacola Baptist Center 5213 West Jackson Street Pensacola, FL 32506

Docket for Case No: 87-001914

Orders for Case No: 87-001914