Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-821 _____________________________ CHAPPELL SCHOOLS, LLC, d/b/a Chappell Schools Deerwood, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. _____________________________ On appeal from Department of Children and Families. December 22, 2021 ROWE, C.J. Chappell Schools, LLC appeals a final order entered by the Department of Children and Families imposing an administrative fine and revoking Chappell’s Gold Seal Quality Care designation. 1 After the Department filed an administrative complaint alleging that Chappell violated its disciplinary policies addressing the 1 The Gold Seal Quality Care designation entitles a child care facility to receive higher reimbursement rates from Florida’s Office of Early Learning and exempts the facility from ad valorem taxes. See Fla. Admin. Code R. 6M-4.500(9);12D-7015(3). conduct of the children in its care, Chappell requested an administrative hearing. After the hearing, an administrative law judge entered a recommended order making certain factual findings and concluding that Chappell had not violated its disciplinary policies. But the Department rejected the ALJ’s recommended order and his findings of fact, and entered a final order concluding that Chappell did violate its disciplinary policies. We reverse because the Department abused its discretion when it rejected the ALJ’s factual findings that were supported by competent, substantial evidence. This case stems from the Department’s regulation of Chappell as a licensed childcare facility. Florida law requires that childcare facilities licensed by the Department adopt “age-appropriate, constructive disciplinary practices” for children in their care. See § 402.305(12)(a), Fla. Stat. Before admitting a child into their care, a childcare facility must notify “parents in writing of the disciplinary practices used by the facility.” See § 402.305(12)(b), Fla. Stat. Consistent with these statutory requirements, section 2.8 of the Child Care Facility Handbook, adopted by reference in Florida Administrative Code Rule 65C-22.001(6), provides that childcare facilities must act in accordance with their written disciplinary and expulsion policies. Chappell adopted a written disciplinary policy for children in its care. Part of the policy addresses “persistent” inappropriate behavior that “caused or could have caused injury to self or others.” After two incidents in one week that caused or could have caused injury, the policy calls for a one-day suspension. And after five incidents, the policy calls for a one-week suspension. Even so, Chappell’s disciplinary policy also provides that “expulsion should be rare,” that Chappell would “work with parents and children to prevent suspension and expulsion” and that Chappell “encourage[d] collaboration with early childhood mental health consultants and interventionists.” The Department’s actions against Chappell followed reports of a two-year-old child in one of Chappell’s daycare facilities biting others over a two-month period. None of the bites broke the skin of the persons bitten. But after the fifth biting incident, Chappell suspended the toddler from school for a day. Chappell tried to 2 address and redirect the child’s behavior through several interventions, including bringing on a behavioral psychologist. Ultimately, those efforts did not succeed and Chappell expelled the two-year-old from its school. The Department received a report about the toddler’s behavior and began an investigation to determine whether Chappell was implementing its policy to discipline children for persistent behavior likely to cause injury. After reviewing Chappell’s written disciplinary policy, the Department concluded that Chappell violated the policy by not suspending and expelling the child sooner than it did. The Department found that the child’s behavior was persistent and did or could have caused injury. The Department filed an administrative complaint alleging that Chappell violated its written disciplinary and expulsion policies. Chappell asked for a formal hearing. An administrative law judge conducted a hearing on the Department’s complaint. Chappell and the Department disagreed on whether the toddler’s biting was “persistent,” and whether it “caused or could have caused injury,” thus triggering Chappell’s discipline policy. The Department alleged that the child’s biting could have caused injury, and for that reason, alleged that Chappell violated the policy by not suspending and expelling the child sooner than it did. The evidence conflicted. After hearing testimony from two witnesses, the ALJ entered a recommended order finding that the biting by the two-year-old did not and could not have caused injury. The ALJ found that none of the bites broke skin or required the person bitten to receive treatment. And so the ALJ concluded that the Department did not meet its burden to prove by clear and convincing evidence that Chappell violated its disciplinary policy by not suspending or expelling the child sooner. But on review of the ALJ’s recommended order, the Department reached the opposite conclusion. The Department rejected several of the ALJ’s factual findings, including his finding that the child’s biting did not or could not have caused injury. Based on its finding that the child’s bites could have caused injury, the Department concluded that Chappell violated its disciplinary policy by not suspending and expelling the toddler sooner than it 3 did. As a result, the Department imposed an administrative fine and revoked Chappell’s Gold Seal designation. This appeal follows. Section 120.68, Florida Statutes (2021), governs judicial review of the Department’s final order. A reviewing court may set aside an order of an administrative agency if the agency depended on any finding of fact not supported by competent, substantial evidence in the record; committed a material error in procedure; erroneously interpreted the law; or abused its discretion. Young v. Dep’t of Educ., Div. of Vocational Rehab., 943 So. 2d 901, 902 (Fla. 1st DCA 2006). An administrative agency abuses its discretion when it disregards an ALJ’s factual findings supported by competent, substantial evidence. Strickland v. Florida A & M Univ., 799 So. 2d 276, 278 (Fla. 1st DCA 2001). An administrative agency cannot not reject or modify an ALJ’s factual findings unless it first determines, from a review of the entire record, and states with particularity, that the ALJ’s findings of fact are not based on competent, substantial evidence. See § 120.57(1)(l), Fla. Stat. We find the Department abused its discretion here. After considering the evidence and making factual findings, the ALJ concluded that the Department failed to establish by clear and convincing evidence that Chappell violated its disciplinary policy. 2 Competent, substantial evidence supports the ALJ’s findings— including his finding that the toddler’s bites did not or could not have caused injury. 2 Before an administrative agency may act against the license of a licensee, it must prove the allegations in its administrative complaint by clear and convincing evidence. See Dep’t of Banking & Fin., Div. of Sec. & Inv’r Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933 (Fla. 1996). To meet the clear and convincing burden of proof, the evidence “must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. ” See N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003) (quoting In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)). 4 Although the Department’s sole witness testified in the abstract that biting could cause injury, the Department presented no testimony that the bites by the two-year-old child involved in the incidents at Chappell’s school caused or could have caused injury. On the other hand, Chappell’s witness testified that none of the incident reports showed that the two-year-old child’s bites broke the skin of the persons bitten or required any kind of treatment. Chappell’s Chief Executive Officer testified that she would not have kept the child in the classroom if there was any possibility of the child being a danger to other students. Based on this record, we find that competent, substantial evidence supports the ALJ’s findings that the toddler’s bites did not or could not have caused injury. And thus the Department abused its discretion when it rejected the ALJ’s factual findings. We reverse and remand with directions for the Department to enter an order consistent with the ALJ’s findings and conclusions. REVERSED and REMANDED. BILBREY and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Joshua R. La Bouef, Matthew T. Jackson, and Edward J. Brown of Brennan Manna Diamond, Jacksonville, for Appellant. David G. Tucker, Regional Counsel, Northeast Region, Department of Children and Families, Jacksonville, for Appellee. 5