KAPIL AND KATRINA PURI

v.

DEPARTMENT OF CHILDREN AND FAMILIES

Kapil and Katrina Puri appeal an order from the Department of Children and Families revoking and declining to renew their foster home license. We set aside the Final Order. See § 120.68(6)(a)(1), (7)(e)(4), Fla. Stat. (2021).

Appellants argue that the Department abused its statutory authority when it ignored or mischaracterized findings of fact, incorrectly labeled findings of fact as conclusions of law, did not include specific reasons for deviation from the Recommended Order, and reweighed the evidence. Appellants held a Department-issued foster home license for about six years before expiration. After it expired, the Department issued a letter notifying Appellants that it intended to revoke and decline renewal of the license. The Department stated that Appellants violated Department rules by using a physical hold on a child, giving the child medication without a prescription, withholding food as a form of discipline, cursing at the child for not getting into the bathtub, and leaving the child’s protected-health information in a public place. Appellants sought administrative review of the Department’s decision. After an administrative hearing, the Administrative Law Judge issued a Recommended Order with findings of fact, conclusions of law, and a recommendation that the Department enter into a corrective action plan with Appellants rather than revoking their license. The findings of fact addressed the child’s behavior history and Appellants’ use of two physical holds on the child. Before being placed with Appellants, the child had a history of violent behavior that caused harm to herself and others. After being placed with Appellants, the child would have uncontrollable outbursts and tantrums at school, including slapping herself, turning over chairs, biting, and throwing things. The child behaved similarly at home, including kicking, fighting, and spitting at the Appellants. When the child experienced a severe trauma tantrum, Ms. Puri would hold the child so she could not harm herself or anyone around her. The first hold was when “Ms. Puri would have the child sit on her lap, she would place her arms underneath the armpits of the child; the child’s arms were raised and slightly behind her head; and then, Ms. Puri’s hands were interwoven between the child’s arms and placed behind the child’s neck.” The second hold was when Ms. Puri had wrapped the child in a blanket to protect herself and the child from harm during a tantrum. The Recommended Order’s legal conclusions included the following: 79.

However, the proscription against using a mechanical restraint is listed under the disciplinary statute, and thus, applies if the restraint was used to discipline the child. Here, there was no testimony presented at hearing to demonstrate that Ms. Puri restrained the child as a form of discipline. Rather, the evidence establishes that Ms. Puri only restrained [the child] to protect the Puri family and the child from harm.

The evidence does not establish that any restraint was used to discipline the child as contemplated by the rule 65C-13.030(2)(h).

80.

Accordingly, [the Department] failed to prove by a preponderance of the evidence, that [Appellants] violated rule 65C-13.030(2)(h). . . .

85.

The evidence presented at hearing, established that Ms. Puri left [the child’s] confidential records in a public place. Based on the violation proven, [the Department] did not prove that [Appellants’] license should be revoked/not renewed.

86. Based on the information available at the time, DCF concluded that [Appellants] would not be receptive to correcting alleged deficiencies. Based on the violation found, [Appellants’] actions did not pose an immediate threat to the health, safety, or welfare of the child, and thus, a corrective action plan would be appropriate. Further, the evidence offered at hearing established mitigating circumstances should DCF determine that a lesser penalty would be appropriate. The Department filed exceptions to the Recommended Order. The Secretary issued a Final Order granting the Department’s exceptions to the Administrative Law Judge’s legal conclusions in paragraph 79, 80, 85, and 86. The Department granted the exceptions to paragraph 79 and 80. The Final Order rejected the Administrative Law Judge’s interpretation of Florida Administrative Code Rule 65C-13.030(3)(h) (2018)*, which states “No child shall be mechanically restrained or locked in any enclosure, room, closet, bathroom, or area of the house of premises, for any reason.” The Recommended Order interpreted the rule to apply to discipline, and not for safety reasons, because Rule 65C-13.030(3) is titled “Discipline.” The Administrative Law Judge concluded that the physical holds did not violate the rule because the holds were used for safety, not discipline. The Department, in its exceptions, disagreed, stating that “discipline” is defined by Merriam-Websters Dictionary as “enforcing obedience or order,” and therefore, the hold was a violation of the rule. The Department then granted the exception to paragraph 86, because the Department did not agree that Appellants did not pose an immediate threat to the health, safety, or welfare of the child. The Department stated that Florida Administrative Code Rule 65C-13.035(4)(d) provides that corrective action plans are for licensed caregivers who can understand and correct infractions, but that Appellants did not have such ability and thus posed an immediate threat to the health, safety, or welfare of children. The Department cited to the record in this exception but did not assert that it had conducted a review of the full record or that no substantial competent evidence supported the Administrative Law Judge’s findings. The Department granted the exception to paragraph 85, because the Department disagreed with the Administrative Law Judge’s conclusion that Appellants’ violations did not require a revocation of their foster home license. The Department’s Final Order cited Appellant’s use of restraints on the child as a rule violation and concluded that the restraints and confidential record violations should result in revocation of Appellant’s license. The Final Order thus rejected the recommended corrective action plan in favor of revocation and non-renewal of Appellants’ license. An agency may adopt the recommended order, or it may reject or modify the recommended order, if it correctly follows the

* Florida Administrative Code Rule, 65C-13.030 (2018) was repealed in 2020; however, the language from former Rule 65C-13.030(3)(h) was transferred to Rule 65C-45.010(4)(i) (2022).

procedure set forth in section 120.57(1)(l), Florida Statutes.

Section 120.57(1)(l) provides: The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action. (emphasis added).

The Florida Constitution prohibits this Court from deferring to an agency’s conclusions of law. Art. V, § 21, Fla. Const. (“In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.”).

In the Department’s exception to paragraph 86, it challenged the Recommended Order’s finding that Appellants could understand and correct infractions. The Department disagreed, stating that “it is apparent that [Appellant] does not have the ability to understand and correct the infraction of restraining the child.” Although this exception was labeled as a “conclusion of law,” the Department’s finding that Appellants did not have the ability to understand and correct an infraction is a finding of fact. To propose such a finding, the Department improperly reweighed the evidence addressed in the administrative hearing. See J.D. v. Fla. Dep’t. of Child. & Fams., 114 So. 2d 1127, 1133 (“These determinations were labeled as conclusions of law, but they were actually findings of fact.”).

To modify a finding of fact the Department was required to review the complete record and state with particularity that the finding of fact was not based on competent substantial evidence. § 120.57(1)(l), Fla. Stat. The Department did not do so and thus failed to comply with section 120.57(1)(l).

This exception also modified the recommended penalty—a corrective action plan. The Department stated that a corrective action plan would be contrary to the intent of Chapters 39 and 409, Florida Statutes. But to reduce or increase the recommended penalty, the Department was required to review the complete record and state with particularity its reasons for the change with citations to the record. The Department did not do so and again failed to comply with section 120.57(1)(l).

The exception to paragraph also modified the recommended penalty. The Department reweighed the Appellants’ use of restraints and their act of leaving confidential records in a public place, finding that the two violations satisfied the Department’s burden to prove that Appellants’ license should be revoked and not renewed. But, again, the Department did not meet the requirements of section 120.57(1)(l), because it did not review the complete record, state with particularity its reasons for modifying the recommended penalty, and support its decision to modify with citations to the record. Because the Department failed to comply with section 120.57(1)(l), Florida Statutes, in granting the exceptions, we set aside the Department’s Final Order. The Department is directed to enter a Final Order implementing the corrective action plan in the Recommended Order, or to enter a Final Order consistent with this opinion.

NORDBY, J., concurs; KELSEY, J., dissents with opinion.