If Denial of Licensure is Disciplinary in Nature, Then Agency Must Prove Case by “Clear and Convincing Evidence”

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

Davis Family Day Care Home (“Davis”) was issued a license as a family day care home in 2007. Davis applied annually for renewal of that license. In 2011, Davis applied for renewal of its license and also applied for a license as a large family child care home.

The Department of Children and Families (“DCF”) proposed to deny both the renewal application and the application for licensure as a large family child care home. Davis sought an administrative hearing on both denials. After an administrative hearing, the administrative law judge (“ALJ”) issued a recommended order recommending issuance of the renewal on a probationary basis and issuance of the large family child care home application on a provisional basis. The ALJ held that the burden of proof for the license denial was clear and convincing evidence. DCF rejected that conclusion, and provided a substituted conclusion of law that the burden of proof was by competent substantial evidence. DCF adopted the ALJ’s recommendation to renew the family day care home on a probationary basis, but denied the application for a large family child care home license.

On appeal, the court reversed and remanded. It held that DCF had misused the appellate “competent substantial evidence” standard of review as the burden of proof.

With respect to the appropriate burden on DCF, the court held that DCF must establish by clear and convincing evidence that the license should be denied, and not by a preponderance of the evidence. The court opined that the denial of the license for a large family child care home was essentially a disciplinary action since it was predicated on violations allegedly committed under the day care home license. The statute relied on by DCF authorized imposition of “disciplinary sanctions,” including denial or revocation of a license, for violations of the licensing laws. The court noted that DCF itself had acknowledged the disciplinary nature of its action, referring to its initial decision letter as an “administrative complaint.”

While recognizing that the court in Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 2006), had applied the preponderance of the evidence burden of proof (instead of clear and convincing evidence) to license application proceedings, the court noted that section 120.57(1), Fla. Stat., had been amended since the Osborne decision. Section 120.57(1)(j), Fla. Stat., now provides that the preponderance of the evidence standard applies except in penal or disciplinary actions. In this case, the statute made clear that DCF was taking disciplinary action.

Source:

Davis Family Day Care v. Department of Children and Family Servs., 117 So. 3d 464 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013).

 

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