H.L.T. v. Department of Health & Rehabilitative Services

ALLEN, Judge.

The appellant challenges an administrative order by which the Department of Health and Rehabilitative Services (the department) denied a request for expunetion of a child abuse report. The department rejected a hearing officer’s recommendation for expunction after the hearing officer improperly required the department to prove abuse by clear and convincing evidence. The proper standard is a preponderance of the evidence. See § 415.504(4)(d)3, Fla.Stat. The hearing officer had indicated that the department’s proof failed to satisfy the higher clear and convincing standard by only a narrow margin, and the department construed this as establishing that its proof was sufficient under the preponderance standard. Such certainty of meaning should not have been ascribed to the comment in the recommended order, and consistent with section 120.57(l)(b)10, Florida Statutes, the department should have remanded the case for the hearing officer to apply the proper standard of proof.

The appealed order is reversed and the case is remanded.

BARFIELD and KAHN, JJ., concur.