STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. P., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 93-0325F

   )

   DEPARTMENT OF HEALTH AND )

   REHABILITATIVE SERVICES, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 31, 1993, in Orlando, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: William J. Sheaffer, Esquire

   609 East Central Boulevard Orlando, Florida 32801

   
   

   For Respondent: Eric D. Dunlap, Esquire

   Department of Health and Rehabilitative Services

   400 West Robinson Street Suite S-827 Orlando, Flordia 32801

   
   

   STATEMENT OF THE ISSUES

   
   

   Petitioner filed a motion for attorney's fees and costs, pursuant to Section 57.111, F.S. after Respondent voluntarily amended its report of abuse or neglect regarding Petitioner.

   
   

   The parties have stipulated that these three issues remain for disposition:

   
   

   1. Whether Petitioner is a "small business party", as defined in Subsection 57.111(3)(d), F.S.;

   2. Whether the underlying proceeding had a "reasonable basis in law and fact" at the time it was initiated by the agency Respondent; and

   3. Whether the fees and costs claimed by Petitioner are "reasonable and necessary". The parties wish to defer resolution of this final issue pending outcome of the prior two issues.

PRELIMINARY STATEMENT

On November 19, 1992, Hearing Officer Joyous D. Parrish entered an order closing file in DOAH #92-3788C based on HRS' motion to dismiss and the agency's representation that it had agreed to amend FPSS report #92-8704 to delete S.P. as perpetrator of abuse or neglect. The order relinquished jurisdiction to the agency for its final action.

On January 19, 1993, S.P., through counsel, filed her motion for attorney's fees and costs pursuant to Section 57.111, F.S.

The hearing proceeded as scheduled after the agency responded to the motion.

At hearing the parties stipulated to the issues reflected above, and stipulated to these joint exhibits received in evidence:

Joint Exhibit #1 - Day Care Facility

Certificate of License Joint Exhibit #2 - FPSS Report #92-8704 Joint Exhibit #3 - Statements taken by

witnesses in the course of investigation

Joint Exhibit #4 - Six depositions of

witnesses taken by counsel for S.P.

Joint Exhibit #5 - Order closing file in DOAH

#92-3788C

Sandra Pinkert (S.P. above) testified in her own behalf. Counsel for the parties presented legal argument and no further evidence.

The Respondent agency filed a proposed order on April 14, 1993. The proposed facts therein are substantially adopted here.

FINDINGS OF FACT

1. Sandra Pinkert is president of SPAW, Inc. and one of only two stockholder/owners. Her co-owner and vice president is Annette Williams. The corporation owns Discovery Academy, a child day care facility in Orange County, Florida licensed by the Department of Health and Rehabilitative Services for children aged two to twelve years. This is the only facility owned by the corporation.

   
   

2. The corporation has its principal office in Florida, has ten employees, seven of which are full time and has a net worth of less than $2 million.

   
   

3. On January 27, 1992 the Department of Health and Rehabilitative Services (HRS) received a report of alleged abuse at Discovery Academy. The allegation was that one of the owners, Sandra Pinkert, had slapped and squeezed a child's hands until they were red and that she had held blankets over children's heads at nap times.

   
   

   Richard Miller, a child protection investigator for HRS conducted the investigation.

4. After conducting a series of interviews with the owners, some parents, children and teachers at the center, Mr. Miller and his supervisors classified the report, designated FPSS #92-008704, as "proposed confirmed abuse", with Sandra Pinkert identified as perpetrator.

   
   

5. During the course of his investigation Mr. Miller received information from the teachers that Ms. Pinkert had been observed holding blankets covering the heads of two children at naptime until they were still or stopped crying, telling them she would stay there until they were asleep.

   
   

   Mr. Miller also learned that on several occasions Ms. Pinkert had instructed parents to wash children's mouths with soap as punishment for biting. On one occasion a mother was called to the facility; Ms. Pinkert filled a soap dispenser with dish washing liquid and gave it to the mother to administer as punishment for biting; the mother squirted soap in the child's mouth (a 2 1/2 year old) and he vomited.

   
   

6. Discovery Academy had a "4-C" contract with HRS to provide subsidized day care for children of mothers in school, at-risk children and other eligible clients. During the pendency of the abuse report proceeding (approximately eleven months) the facility lost its contract.

   
   

7. On May 28, 1992, after notice to Sandra Pinkert, HRS denied her request for expungement of FPSS #92-00704. After she requested a formal administrative hearing as provided in Section 415.504, F.S., the case was referred to the Division of Administrative Hearings, was assigned case number 92-3788C, and was set for hearing on November 6, 1992.

   
   

8. Counsel for Ms. Pinkert conducted prehearing preparation and deposed several witnesses.

   
   

9. On November 2, 1992 HRS agreed to amend the report to delete Ms. Pinkert as a perpetrator and the agency moved for dismissal of her request for a hearing.

   
   

10. The hearing was cancelled and Hearing Officer Parrish entered the order described in the Preliminary Statement above.

    
    

11. In her motion for fees and costs, Petitioner claims fees of $10,000.00 (40 hours at $250.00 per hour) and costs of $727.02.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 57.111, F.S. and 120.57(1), F.S.

    
    

13. Subsection 57.111(4)(a), F.S. provides:

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

14. It is uncontroverted that the Petitioner has "prevailed" in an administrative proceeding "initiated by a state agency".

    
    

15. Respondent argues, however, that since Sandra Pinkert was named perpetrator in her individual capacity, she is not a "small business party", defined in pertinent part in Subsection 57.111(3)(d), F.S. as,

    
    

    1.a. A sole proprietor of an unincorporated business, including a professional practice,

    . . . or

    b. A partnership or corporation, including a professional practice . . . .

    
    

16. Respondent also claims that the underlying proceeding was substantially justified. Because the case is resolved in Respondent's favor on this issue, it is unnecessary to address Petitioner's status as a small business party.

    
    

17. A proceeding is substantially justified if it had a reasonable basis in law or fact at the time it was initiated by a state agency. Subsection 57.111(3)(e), F.S.

    
    

18. Section 415.504, F.S. describes mandatory reports of child abuse, the investigative process and the procedure for alleged perpetrators to challenge reports that are classified "proposed confirmed".

    
    

19. Upon receiving a report of suspected child abuse or neglect the agency is required to commence an investigation within twenty-four (24) hours. After the investigation, if the report is classified "proposed confirmed", the alleged perpetrator is given an opportunity to explain or rebut the charges and to request amendment or expungement of the report.

    
    

20. If the request is denied, the alleged perpetrator is entitled to a formal evidentiary hearing, and the agency is required to prove that the alleged perpetrator committed the reported abuse or neglect.

    
    

21. From the evidence presented in the stipulated exhibits, the agency demonstrated that its investigation was thorough and professional. The investigations included eyewitness accounts of the blanket and mouth-washing incidents.

    
    

22. "Child abuse or neglect" is defined as

    
    

    . . . harm or threatened harm to a child's physical or mental health or welfare by the acts or omission of a parent, adult household member, or other person responsible for the child's welfare, or, for purposes of reporting requirements, by any person.

    Section 415.503(3), F.S.

    
    

23. "Other person responsible for a child's welfare" includes persons employed in a child day care center. Section 415.503(12), F.S.

    
    

24. Recent appellate decisions have addressed the definitions of abuse or neglect in Chapter 415, F.S. relating to aged persons as well as children.

25. In an opinion issued on October 22, 1992, shortly before the underlying case was scheduled to go to hearing, the First District Court of Appeal held that proof of what constitutes abuse requires more than a purely subjective standard. K.M.T. v. Department of Health and Rehabilitative Services, 608 So.2d 865 (1st DCA 1992). And more recently, the Second District Court of Appeal has suggested that the definition of "harm" in Section 415.503,

    F.S. may be so vague as to be facially invalid. A.S. v. Department of Health and Rehabilitative Services, 18 FLW D1069 (opinion filed 4/23/93).

    
    

26. At the time that the proceeding was initiated, that is, when the agency provided Ms. Pinkert her "clear point of entry" (see, Section 57.111(3)(b)3.), the agency had a reasonable basis in law or fact to consider that holding blankets over the heads of young children to make them behave at naptime, if not the bizarre and out-moded practice of mouthwashing with soap, constituted "harm or threatened harm to a child's physical or mental health or welfare".

    
    

27. "The Act is designed to discourage unreasonable governmental action, not to paralyze agencies doing the necessary and beneficial work of government". Rudloe v. Department of Environmental Regulation, 33 Fla. Supp. 2nd 203, 211 (DOAH 1988).

ORDER

Based on the foregoing, it is hereby, ORDERED:

Petitioner's motion for attorney's fees and costs is DISMISSED.

DONE AND ORDERED this 11th day of May, 1993, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1993.

COPIES FURNISHED:

Eric D. Dunlap, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street Suite S-827

Orlando, Florida 32801

William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHTS TO SUBMIT EXCEPTIONS

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-000325F

Orders for Case No: 93-000325F