14-002801RP Florida Association Of Counties, Alachua County, Bay County, Brevard County, Charlotte County, Collier County, Escambia County, Flagler County, Hernando County, Hillsborough County, Lake County, Lee County, Leon County, Manatee County, Et Al. vs. Department Of Juvenile Justice Status: Closed DOAH Final Order on Wednesday, April 22, 2015.

Summary: Some, but not all, of the challenged provisions of the Department of Juvenile Justice's proposed rules governing cost sharing between state and counties for secure juvenile detention are invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY OF VOLUSIA,

Petitioner,

and

DUVAL COUNTY/CITY OF

JACKSONVILLE,

Intervenor,

vs. Case No. 14 - 2799RP

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

_______________________________/

BROWARD COUNTY, FLORIDA ,

Petitioner,

and

DUVAL COUNTY/CITY OF

JACKSONVILLE,

Intervenor,

vs. Case No. 14 - 2800RP

DEPARTMENT OF JUVENILE JUSTICE ,

Respondent.

_______________________________/

FLORIDA ASSOCIATION OF COUNTIES,

ALACHUA COUNTY, BAY COUNTY,

BREVARD COUNTY, CHARLOTTE

COUNTY, COLLIER COUNTY, ESCAMBIA

COUNTY, FLAGLER COUNTY, HERNANDO

COUNTY, HILLSBOROUGH COUNTY,

LAKE COUNTY, LEE COUNTY, LEON

Petitioners,

and

DUVAL COUNTY/CITY OF

JACKSONVILLE,

Intervenor,

vs. Case No. 14 - 2801RP

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

_______________________________/

ORANGE COUNTY, FLORIDA,

Petitioner,

and

DUVAL COUNTY/CITY OF

JACKSONVILLE,

Intervenor,

vs. Case No. 14 - 4512RP

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal administrative hearing was

held in this case on November 12 and 13, 2014, in Tallahassee,

Florida , before W. David Watkins, Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For All Petitioner s and Intevenors Except Broward , Orange ,

and Volusia Counties :

Gregory T. Stewart, Esquire

Carly J. Schrader, Esquire

Nabors, Giblin and Nic k erson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

For Petitioner, County of Volusia:

Mary G. Jolley, Esquire

123 West Indiana Avenue , Room 301

Deland, Florida 32720

For Petitioner, Orange County:

Scott Shevenell, Esquire

Orange County AttorneyÓs Office

201 South Rosalind Avenue, 3rd Floor

Orlando, Florida 32801

For Petitioner, Broward County:

Adam M. Katzman, Esquire

Governmental Center, Suite 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

For Petitioner, Bay County:

Terrell K. Arline, Esquire

Bay County AttorneyÓs Office

840 West 11th Street

Panama City, Florida 32401 - 2336

(Co - Counsel for Petitioner Bay County)

For Petitioner, Hillsborough County:

Stephen M. Todd, Esquire

Hillsborough County AttorneyÓs Office

Post Office Box 1110

Tampa, Florida 33601 - 1110

(Co - Counsel for Petitioner Hillsborough

County)

For Respondent: Brian D. Berkowitz, General Counsel

Michael J. Wheeler, Assistant General

Counsel

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

STATEMENT OF THE ISSUES

This is a rule challenge brought pursuant to section

120.56, Florida Statutes , 1 / to the Proposed Rules of the

Department of Juvenile Justice (ÐDepartmentÑ or ÐDJJÑ) 63G -

1.011, 63G - 1.013, 63G - 1.016, and 63G - 1.017 (the ÐProposed

RulesÑ). The main issue in this case is whether the Proposed

Rules are an invalid exercise of delegated legislative authority

in that the Proposed Rules enlarge, modify, or contravene the

specific provisions of law implemented, section 985.686, Florida

Statutes ; are vague ; and/or are arbitrary and capricious.

Petit ioners also argue that the Proposed Rules impose regulatory

costs that could be addressed by the adoption of a less costly

alternative. Finally, Petitioners assert that the Proposed

Rules apply an invalid interpretation of the General

Appropriations Act ( ÐGAAÑ) for Fiscal Year (ÐFYÑ) 2014 - 15 by

interpreting the GAA as a modification to substantive law,

contrary to the Constitution of the State of Florida.

PRELIMINARY STATEMENT

Twenty - seven c ounties and the Florida Association of

Counties (the Challengers) have filed p etitions challenging the

Proposed Rules. The p etitioning c ounties include : Alachua

County ; Bay County ; Brevard County ; Broward County ; Charlotte

County ; Collier County ; Escambia County ; Flagler County ;

Hernando County ; Hillsborough County ; Lake County ; Lee County ;

Leon County ; Manatee County ; Martin County ; Nassau County ;

Okaloosa County ; Orange County ; Palm Beach County ; Pinellas

County ; Santa Rosa County ; St. Johns County ; St. Lucie County ;

Sarasota County ; Walton County ; and Volusia Coun ty. Duval

County/City of Jacksonville filed a Petition to Intervene, which

was granted.

At the final hearing, the Challengers Ó exhibits 1 - 92 were

admitted in evidence , including the deposition transcripts of

witnesses Jason Welty, Fred Schuknecht , Vickie Harris, the

Honorable Judge Terrill J. LaRue (expert), and Minnora Bishop.

Excerpts of the testimony of Mr. Welty and Mr. Schuknecht were

published during the hearing. In addition, Petitioners

presented the testimony of James Alexander Kelly, Fr ank A.

Orlando (expert), Richard Edward Herring (expert), and Mark

Greenwald. At the outset of the hearing the ChallengersÓ

Request for Official Recognition of two Division of

Administrative Hearings (DOAH) Orders and two First District

Court of Appeal op inions was granted.

Department E xhibits 1 and 3 were admitted, including the

deposition of Bonnie Rogers. The Department also presented the

testimony of Mr. Schuknecht and Ms. Bishop.

A Joint Pre - Hearing Stipulation of the parties was filed

prior to the final hearing, stipulating to certain facts which

are admitted and issues of law on which there is agreement. T o

the extent they are relevant t hose admitted facts and issues of

law have been in corporated herein.

The three - volume T ranscript of the final hearing was

prepared and filed with DOAH on December 8, 2014. At the

request of Petitioners, the time for filing proposed final

orders was extended to February 2, 2015. Thereafter, the

parties timely submitted Proposed Final Orders, which have been

caref ully considered in the preparation of this Final Order.

FINDINGS OF FACT

I. The Parties

1 . T he Department is the state agency responsible for

administering the cost - sharing requirements in section 985.686,

Florida Statutes, for juvenile detention car e.

2 . The challenging counties are political subdivisions of

the State of Florida an d are non - fiscally constrained c ounties

subject to the cost - sharing requirements of section 985.686 .

3 . The challenging counties are substantially affected by

the application of Florida Administrative Code Rules 63G - 1.010

through 63G - 1.018, including the Proposed Rules. It was

stipulated that the challenging countiesÓ alleged substantial

interests are of the type these proceedings are designed to

protect.

4 . Petitioner, Florida Association of Counties (ÐFACÑ), is

a statewide association and not - for - profit corporation organized

and existing under c hapter 617 , Florida Statutes , for the

purpose of representing county government in F lorida and

protecting, promoting, and improvi ng the mutual interests of all

c ounties in Florida.

5 . All of the 67 c ounties in Florida are members of FAC,

and the Proposed Rules regarding Detention Cost Share affect all

c ounties. Of the 67 c ounties in Fl orida, 35 are considered non -

fiscally constrained, and are billed by the Department for their

respective costs of secure detention care, as determined by the

Department; 27 of these c ounties are participating alongside FAC

in these proceedings.

6 . The su bject matter of these proceedings is clearly

within FACÓs scope of interest and activity, and a substantial

number of FACÓs members are adversely affected by the Proposed

Rules.

7 . The challenging counties, and FAC , participated in the

various rulemaking proceedings held by the Department related to

the Proposed Rules, including rule hearings held on June 6,

2014 , and August 5, 2014.

II. Rule Making

8 . The initial version of the Proposed Rules was issued,

and a Rule Development Workshop was held on Marc h 28, 2014.

Numerous challenging counties submitted comments on the Proposed

Rules either prior to, or at the Rule Development Workshop.

9 . On May 15, 2014, the Department published Proposed

Rules 63G - 1.011, 1.013, 1.016, and 1.017 in the Florida

Admini strative Register. I n that N otice , the Department

scheduled a hearing on the P roposed Rules for June 6, 2014.

10 . On June 6, 2014, a r ule m aking h earing was held on the

Prop osed Rules. Numerous challenging counties submitted

comments to the Proposed Rules either prior to, or at the

hearing.

11 . A s u pplemental rulemaking h earing was held on

August 5, 2014. Again, numer ous challenging counties s ubmitted

comments regarding the Proposed Rules either prior to, or at the

s upplemental r ule making h earing.

12 . On September 5, 2014, the Department advertised its

Notice of Change as to the Proposed Rules. Thereafter, all

parties to this proceeding timely filed petitions challenging

the Proposed Rules.

13 . A statement of estimated regulatory costs (ÐSERCÑ) was

not originally prepared by the Department.

14 . In the rulemaking proceedings before the Department ,

Bay County submitted a good faith written proposal for a lower

cost regulatory alternative. In its proposal, Bay County

asserted that the DepartmentÓs own stipulations signed by the

agency are competent substantial evidence that the agency has a

Ðless costly alternativeÑ to the approach taken in the Proposed

Rules, by assessing the costs of all detention days for

juveniles on probation status to the s tate, and not the

c ounties. 2 / As Bay County noted in the proposal, the Department

previously had agreed to assume all of the cost of detention

days occurring after a disposition of probation.

15 . Following the June 6, 2014 , hearing, the Department

issued a S ERC for the Proposed Rules. Ultimately, the

Department rejected the lower cost regulatory alter native

proposed by the counties Ðbecause it is inconsistent with the

relevant statute (section 985.686, F.S.), fails to subst antially

accomplish the statutory objective, and would render the

Department unable to continue to operate secure detention.Ñ

III. The Implement ed Statute

16 . The Proposed Rules purport to implement section

985.686, which provides that each county is res ponsible for

paying the costs of providing detention care Ðfor juveniles for

the period of time prior to final court disposition.Ñ

§ 985.686(3), Fla. Stat.

17 . The statute establishes a cost - sharing system whereby

each non - fiscally constrained county is required to be

individually provided with an estimate of Ðits costs of

detention care for juveniles who reside in that county for the

period of time prior to final court disposition ,Ñ based on Ðthe

prior use of secure detention for juveniles who are resid ents of

t hat county, as calculated by the department.Ñ § 985.686(5),

Fla. Stat. (emphasis added).

18 . Each county must pay the estimated costs at the

beginning of each month. At the end of the state fiscal year,

Ð[a]ny difference between the estimated costs and actual costs

shall be reconciled.Ñ Id .

19 . The Department is responsible for administering the

cost - sharing requirements and is authorized to adopt rules as

set forth in section 985.686(11).

20 . In general, the Proposed Rules provide definitions

including for pre and postdisposition, provide for calculating

the estimated costs, for monthly reporting, and for annual

reconciliation. Specific changes will be discussed in detail

below. The complete text of the Challenged Rules, showing the

proposed amendments (in strike - through and underlined format) is

attached hereto as Appendix A.

IV. The Prior Rule Challenge

21 . On July 16, 2006, the Department promulgated Florida

A dministrative Code Rules 63G - 1.002, 63G - 1.004, 63G - 1.007, and

63G - 1.008, among others, setting forth the definitions and

procedures for calculating the costs as between the s tate and

the various c ounties. These rules were repealed as of July 6,

2010 , and in their place, the Departmen t adopted r ules 63G -

1.011, 63G - 1.013, 63G - 1.016, and 63G - 1.017. Although the

previous rules defined Ðfinal court disposition,Ñ for purposes

of determining the c ountiesÓ responsibility for providing the

costs of secure detention, the 2010 rules replaced this with a

definition of Ðcommitment,Ñ so that the s tate was only

responsible for days occurring after a disposition of

commitment. This had the effect of transf erring the

responsibility for tens of thousands of days of detention from

the s tate to the c ounties. In addition, the 2010 rules failed

to provide a process by which the c ounties were only charged

their respective actual costs of secure detention.

22 . I n 2012, several c ounties challenged r ules 63G - 1.011,

63G - 1.013, 63G - 1.016, and 63G - 1.017 as an invalid exercise of

delegated legislative authority because these rules replaced the

statutory dividing line for the costs of secure detention with

Ðcommitment,Ñ and because the rules r esulted in the overcharging

of c ounties for their respective actual costs of secure

detention. On July 17, 2012, a Final Order was issued by the

undersigned which agreed with the c ounties and found that the

rules were an invalid ex ercise of delegated legislative

authority. Okalo osa Cnty . , et al. v. DepÓt of Juv . Just . , DOAH

Case No. 12 - 0891RX ( Fla. DOAH July 17, 2012). On June 5, 2013 ,

this ruling was affirmed on appeal. Dep Ó t of Juv . Just . v.

Okaloosa Cnty . , 113 So. 3d 1074 (Fla. 1st DCA 2013) (Ð2012 Rule

ChallengeÑ).

V. The DepartmentÓs Response to the 2012 Rule Challenge

23 . No changes to the DepartmentÓs practices were made

after the Rule Challenge Final Order was released in 2012.

Rather , changes were not made until af ter the Rule Challenge

decision was affirmed on appeal in June 2013. Shortly after the

opinion was released by the First District Court of Appeal , the

Department modified its policies and practices to conform with

its interpretation of the requirements of that opinion, and

informed the c ounties that Ðall days for youth in detenti on with

a current placement of p robation or commitment belong to the

state.Ñ At this time, the Department determined that Ðby their

nature all VOPs [violations of probation] are a ttached to

charges that have a qualified disposition and thus are a state

pay.Ñ

24 . In response to the a ppellate c ourt decision , the

Department im plemented and published to the c ounties its

interpretation that the c ounties were only responsible for

detention days occurring prior to a final court disposition, and

were not responsible for detention days occurring after a

juvenile has been sentenced to commitment or probation, or is

waiting for release after a dismissal of the charge. A

statement to this effect was developed by the Department with

input from multiple staff, and was to be a Ðclear bright lineÑ

setting Ðclear parametersÑ and a Ðfinal determinationÑ that the

Department could share with those outside the ag ency. However,

no rules were developed by the Department at this time.

25 . In July 2013, the Department revised its estimate to

the c ounties for Fiscal Year (ÐFYÑ) 2013 - 14 from what had been

issued ( previously ) . This revised estimate incorporated the

De partmentÓs analysis that included in the stateÓs

responsibility any detention days for youth in detention with a

current placement of probation or commitment, or where the

charges again st the youth had been dismissed. The revised

estimate also excluded th ese days from the co llective

responsibility of the c ounties , including detention days

resulting from a new law violation of probation.

26 . At the time of the 2012 Rule Challenge, several

c ounties had pending administrative challenges to the

DepartmentÓs reconciliations for FYs 2009 - 10, 2010 - 11, and

2011 - 12. In September 2013, the Department issued

recalculations of its final reconciliation statements to the

c ounties for FYs 2009 - 10, 2010 - 11 , and 2011 - 12. T he

recalculations were based upon the DepartmentÓs revised policies

and practices and included in the stateÓs responsibility any

detention days for youths in detention with a current placement

of probation or commitment, or where the charges against the

yo uth had been dismissed, and similarly excluded detention days

resulting from a new law violation of probation. This resulted

in large overpayments from the non - fiscally constrained c ounties

to the s tate for these fiscal years. These recalculations were

n ot merely an internal exe rcise, but rather were intended to

notify the c ounties what they had overpaid for the fiscal years

at issue , and were published and made available to the c ounties

and public at large on the DepartmentÓs website.

27 . In December 20 13, the Department entered into

stipulations of facts and procedure to resolve three separate

administrative proceedings related to final reconciliation

amounts for FYs 2009 - 10, 2010 - 11 , and 2011 - 12. Those

stipulations of facts and procedure included the following

definitions:

27. The parties agree that ÐFinal Court

DispositionÑ as contained in section 985.686,

Florida Statutes, and based on the decision of

the First District Court of Appeal, means a

disposition order entered by a court of

competent juris diction, including an order

sentencing a juvenile to commitment to the

Department, or other private or public

institution as allowed by law, placing the

juvenile on probation, or dismissing the

charge.

28. The parties further agree that a ÐPre -

dispositional DayÑ means any secure detention

day occurring prior to the day on which a Final

Court Disposition is entered. A pre -

dispositional day does not include any secure

detention day after a juvenile has been

sentenced to commitment or placed on probation,

or is waiting for release after dismissal of a

charge.

(PetitionerÓs Ex. 26)

28 . In addition to the above stipulations, t he Department

also stipulated to its recalculated amounts for each of these

years, resulting in large overpayments from the c ounties .

However , the Department refused to provide credits for these

overpayment amounts.

29 . In November and December 2013, the Department issued a

final reconciliation statement and revised final reconciliation

statement to the c ounties for FY 2012 - 13, which included in the

stateÓs responsibility any detention days for youth in detention

with a current placement of probation or commitment, or where

the charges against the youth had been dismissed , and likewise

excluded these days from the collec tive responsibility of the

c ounties , including detention days resulting from a new law

violation of probation. Under the DepartmentÓs reconciliation

statement for FY 2012 - 13, the c ounties were collectively funding

approximately thirty - two percent (32%) of the costs of secure

juvenile detention.

30 . The Department also submitted its legislative budget

request for FY 2014 - 15 in October 2013. This legislative budget

request was based on the DepartmentÓs independent judgment as

required by sections 216.011 a nd 216.023, Florida Statutes , 3 / and

excluded from the c ountiesÓ collective responsibility all

detention days relating to a violation of probation, including

for a new substantive law violation. The request provided that

Ðthe department may only bill the c ounties for youth whose cases

have not had a disposition either to commitment or probation.Ñ

The request also notes a shift in the c ountiesÓ collective

obligations from 73 percent of the total costs to 32 percent of

these costs Ðin order to bring the budg et split in line with the

June 2013 ruling by the First District Court of Appeal.Ñ

31 . Under this interpretation, the Department projected a

$35.5 million deficiency in its budget for FY 13 - 14 and

request ed an $18.4 million appropriation for detention cos ts

from the Legislature. This request was funded in the General

Appropriations Act for 2014 - 15. The Department did not ask for

additional funding for past years that had been challenged by

the c ounties. At this same time, a projection for the deficit

fo r FY 2014 - 15 was developed by the Department staff based on

the same interpretation of the s tateÓs responsibility for

detention days. T here was no objection from the DepartmentÓs

Secretary or the GovernorÓs Office to this interpretation of the

stateÓs res ponsibility .

VI. Change in Interpretation Re New Law Violation

32 . Fred Schuknecht, then - Chief of Staff of the

Department, testified that in response to the opinion of the

First District Court of Appeal in June 2013, the Department

adopted a broad interpretation of the ruling that final court

disposition meant commitment , and also included all secure

detention days incurred by probationers as post disposition days.

This included detention days for youths already on probation who

committed new offens es and were then detained as a result of the

new offense or because of the violation of probation resulting

from the commission of the new offense .

33 . During the budgeting process for the 2014 - 15 Fiscal

Year, the Department altered its interpretation of the 2012 Rule

Challenge decision, and its newly - established practice relating

to payment for all detention days involving probationers . T he

Department now proposes, through the challenged rules, to shift

to the c ounties the responsibility for detention da ys occurring

after a final court disposition of probation where there is a

new law violation. Although the challengers assert that the

changed interpretation was driven by the budget proposal

submitted by the GovernorÓs Office in January 2014 ( which did

n ot utilize the DepartmentÓs prior interpretation ) the

Department specifically contends that it did not change its

official position on this interpretation until the adoption of

the s tate budget by the General Appropriations Act (GAA) in June

2014.

34 . While the Department state d it made its initial broad

interpretation because it was Ðunder the gunÑ to issue its cost

sharing billing for FY 20 13 - 20 14 within two weeks of the

appellate opinion, the Department continued to assert that

interpretation in Sept ember 2013 , when it published

recalculations for FYs 20 09 - 20 10, 20 10 - 20 11, 20 11 - 20 12.

Further, Mr. Schuknecht concede d that this interpretation had

not changed at the time the DepartmentÓs legislative budget

request was submitted in October 2013 , or in No vember and

December 2013 , when the Department issued the reconciliation and

revised reconciliation for FY 20 12 - 20 13. Likewise, this

interpretation formed the basis for the stipulations signed by

the c ounties and D epartment in December 2013. At hearing,

t estimony established that the DepartmentÓs interpretation that

the state was responsible for all days of detention for

probationers was formed after frequent discussions on this topic

and with input from multiple staff involved in cost shar ing,

including M r. Schuknecht (Director of A dministration at that

time) , Vickie Harris (Budget D irector), Mark Greenwald ( D irector

of Research and P lanning), the Chief of Staff, Deputy Secretary,

the legal team, as well as the DepartmentÓs Secretary.

35 . For FY 2014 - 15, the Executive Office of the Governor

proposed a recommended budget which was contrary to the

DepartmentÓs initial interpret ation, and included within the

c ountiesÓ collective responsibility those detention days for a

youth on probation charged with a new s ubstantive law violation.

This recommended budget proposed that the c ounties would be

responsible for fifty - seven percent (57%) of the shared costs of

secure detention, and that the s tate would be responsible for

forty - three percent (43%) . This is in con trast to the thirty -

two percent (32%) the c ounties were paying under the

DepartmentÓs initial interpretation of the Rule Challenge

Decision .

36 . The GovernorÓs Office then asked the Department to

amend its earlier submitted legislative budget request, to

reflect the GovernorÓs budget because it wanted the DepartmentÓs

request to match.

37 . Although the GAA for FY 2014 - 15 incorporated a cost -

sharing split similar to that included in the GovernorÓs

proposal , it differed from the governorÓs budget recommend ation.

It was not until June 2014, when the GAA was adopted into law ,

that the Department asserts it officially changed positions. As

stipulated by the parties, there is no language in the GAA for

FY 2014 - 15 setting forth the policy behind the budget spl it for

secure detention.

38 . The Proposed Rules differ from the DepartmentÓs

initial interpretation of the requirements of the Rule Challenge

decision and its earlier established policies and procedures

regarding the same as implemented in June 2013 , through at least

early 2014. The interpretation set forth in the Proposed Rules

result s in a lessened budgetary impact on the state by shifting

more detention da ys to the counties .

39 . At hearing, Mr. Schuknecht testified as to the

rationale for the Dep artmentÓs changed interpretation regarding

the c ountiesÓ responsibility for detention days for a youth on

probation charged with a new substantive law violation :

Q. If you would, Mr. Schuknecht,

please kind of talk about the highlights of

that rule, and especially in relationship to

the CourtÓs ruling in the previous rule

challenge.

A. Basically how we got here is, in

June of 2013, the First DCA ruled basically

supporting the Î DOAHÓs hearing, the final

court disposition prior to that. Basical ly

we determined the final court decision meant

commitment. They said it canÓt be just

commitment. So at that time we took the

broadest interpretation as well will

actually include all probationers as part of

the final court disposition and they would

be post - disposition days.

Subsequent to that, in effect, through

the GovernorÓs Office as well as the

Legislature, as well as ourselves, we

realized basically by doing that we are

including probationers with new offenses as

post - disposition cases which , in effect,

makes no sense.

ItÓs logical that they be pre -

disposition cases because there is no

disposition on those cases with new

offenses. Plus probationers would only be

in detention because they have new cases.

They wouldnÓt be there otherwis e. So, in

fact, thatÓs how we Î so thatÓs the main

change in the rule, in effect, defining what

pre - disposition means.

40 . Mr. SchuknechtÓs explanation for the DepartmentÓs

changed interpretation is consistent with the explanation given

by Jason Welty, the DepartmentÓs previous Chief of Staff, during

the June 6, 2014 , Workshop , that Ðthe DepartmentÓs original

interpretation was, quite frankly , in error . Ñ

VII. Cost of Detention Days for Juveniles on Probation

41 . The Challengers contend that all days in detention

served by a juvenile on probation are the responsibility of the

s tate, and not the c ounties. Accordingly, the Challengers

contest the DepartmentÓs Proposed Rules which assign

responsibility for detention days of juveniles with new law

violations to the c ounties, and not the s tate.

42 . Much of the testimony and argument at the hearing

focused on the DepartmentÓs definitions for pred isposition and

postdisposition, and how these definitions apply as to youth on

probation status with the Department. These definitions are

crucial, as they relate to how t he costs are split amongst the

s tate and the c ounties. Only the costs of predisposi tion

detention days may be billed to the c ounties under section

985.686.

43 . Final court disposition is specifically defined by the

Proposed Rules as the Ðdecision announced by the court at the

disposition hearingÑ including Ðcommitment, probation, and

dismissal of charges.Ñ ÐPredispositionÑ is further defined as

the Ðperiod of ti me a youth is in detention care prior to entry

of a final court disposition.Ñ Proposed Rule 63G - 1.011(14).

ÐPostdispositionÑ on the other hand, means Ðthe period of time a

youth is in detention care after entry of a final court

disposition.Ñ Proposed Ru le 63G - 1.011(15). However, the

definitions do not stop with this gen eral language. Proposed

Rule sections 63G - 1.011(14)(b) and (15)(b) provide that it is

the c ountiesÓ responsibility to fund the costs for days when a

youth is on probation and is charged with a new law violation.

These definitions are implemented through the Proposed Rules

relating to the estimate and reconciliation processes.

44 . The Department argues that youth who are on probation

and commit new offenses may be held in secure detentio n for the

new offense but cannot be legally held in secure detention on

the underlying violation of probation. However, the

DepartmentÓs position would appear to be counter to the express

language of several statutory provisions.

45 . S ection 985.439(4) p rovides in relevant part:

(4) Upon the childÓs admission, or if the

court finds after a hearing that the child

has violated the conditions of probation or

postcommitment probation, the court shall

enter an order revoking, modifying, or

continuing probation or postcommitment

probation. In each such case, the court

shall enter a new disposition order and, in

addition to the sanctions set forth in this

section, may impose a ny sanction the court

could have imposed at the original

disposition hearing. If the child is found

to have violated the conditions of probation

or postcommitment probation, the court may:

(a) Place the child in a consequence unit

in that judicial circu it, if available, for

up to 5 days for a first violation and up to

15 days for a second or subsequent

violation.

(b) Place the child in nonsecure detention

with electronic monitoring. However, this

sanction may be used only if a residential

consequence unit is not available.

(c) If the violation of probation is

technical in nature and not a new violation

of law, place the child in an alternative

consequence program designed to provid e

swift and appropriate consequences to any

further violations of probation.

46 . Neither statute nor Department rules define what is

meant by a ÐtechnicalÑ violation of probation. However, retired

juvenile court judge Frank A. Orlando, accepted as an ex pert in

juvenile detention issues, explained at hearing that:

A technical violation in my opinion is

something that doesnÓt involve a law

violation. It is a condition of probation.

It would be a curfew. It could be going to

school. It could be staying away from a

family, a victim, or staying away from a

place. It could be not obeying the

probation officer, him or herself. In that

sense they are technical violations of

probation, but they are both violation of

probation.

47 . In addition, s ection 985.101(1) provides that a

juvenile may be Ð taken into custody Ñ under c hapte r 985 for,

among others, Ð a delinquent act or violation of law, pursuant to

Florida law pertaining to a lawful arrest,Ñ and Ð[b]y a law

enforcement officer who has probable cause t o believe that the

child is in violation of the conditions of the childÓs

probation, home detention, postcommitment probation, or

conditional release supervision; has absconded from

nonresidential commitment; or has escaped from residentia l

commitment.Ñ § 985.101(1)(b), (d), Fla. Stat. However, this

provision also expressly provides that Ð[N]othing in this

subsection shall be construed to allow the detention of a child

who does not meet the detention criteria in part V.Ñ

48 . Part V of the Act includes se ction 985.255, which sets

forth the detention criteria, and provides in pertinent part:

(1) Subject to s. 985.25 (1), a child taken

into custody and placed into secure or

nonsecure detention care shall be given a

hearing within 24 hours after being taken

into custody. At the hearing, the court may

order continued detention if:

(a) The child is alleged to be an esca pee

from a residential commitment program; or an

absconder from a nonresidential commitment

program, a probation program, or conditional

release supervision; or is alleged to have

escaped while being lawfully transported to

or from a residential commitment program.

49 . Thus, the undersigned is persuaded that sections

985.439(4), 985.101(1) , and 985.255 all support a finding that a

violation of probation, not associated with a new violation of

law, may under some circumstances result in a new disposition of

secure detention. However, pursuant to the Proposed Rules,

under these circumstances the state would continue to be

responsible for the cost of the secure detention.

50 . As explained at hearing, there is an idiosyncrasy in

c hapter 985 regarding secure detention for juveniles who have

been charged with a violation of probation or violating a term

of their conditional release. Under c hapter 985, a child taken

into custody for violating the terms of probation or conditional

re lease supervision shall be held in a consequence unit. If a

consequence unit is not available, the child is to be placed on

home detention with electronic monitoring. § 985.255(1)(h),

Fla. Stat. These consequence units have not been funded by the

Florid a Legislature for a number of years. However, the

juvenile justice system has found a practical method to

accommodate the nonexistence of these Ðconsequence units.Ñ For

technical violations of probation, the courts often convert the

violations of probation to a contempt of court, and will hold

the juvenile in detention on this basis. This contempt of court

procedure may also be used by the courts to detain a juvenile in

secure detention for a violation of probation based on a new law

violation.

51 . Pursuant to section 985.037, a juvenile who has been

held in direct or indirect contempt may be placed in secure

detention not to exceed five days for the first offense, a nd not

to exceed 15 days for a second or subsequent offense. As noted

by Judge Orlando and Seventh Judicial Circuit Judge Terrill

J. LaRue, an order to show cause for indirect criminal contempt

is the mechanism used to place a juvenile in secure detention

for a violation of probation or conditional release.

52 . In addition, the probation is a significant factor

that weighs heavily into the DepartmentÓs decision to securely

detain the juvenile, and in large part determines whether the

juvenile will be deta ined. For a youth who is on probation and

is charged with a new substantive law offense, the Department,

pursuant to its rules and policies, determines whether the youth

will be detained in secure detention based on the DepartmentÓs

Detention Risk Assessm ent Instrument (ÐDRAIÑ). § 985.245,

Fla. Stat.; r ule 63D - 9.002. Under the DRAI, if the child scores

0 - 7 points, the child is not detained; 7 - 11 points, the child is

detained on home detention; for 12 points or more, the child is

detained on secure detent ion.

53 . For a youth who is on probation, the underlying charge

for which that youth was placed on probation and/or the Ðlegal

statusÑ of the youth itself will always be taken into account

under the DRAI and will make secure detention significantly more

likely than had the youth not been on probation on a number of

fronts. This is also true for a youth on commitment status, in

the case of conditional release. T he highest scoring underlying

charge may be used to assess the juvenile for probation if the

n ew law violation does not score enough points for the juvenile

to be securely detained. Therefore, there are days served in

secure detention based on the scoring of the underlying charge

for which the juvenile is on probation, and not the new law

violatio n.

54 . In addition, t here are a number of points resulting

from the underlying charge for which the juvenile is on

probation, regardless of whether the DRAI is scored on the new

law violation or the underlying charge. A juvenile on probation

will always get points purely for his or her legal status of

probation. The number of points depends on the amount of time

since the last adjudication or adjudication withheld. Six

points is assigned for active probation cases with the last

adjudication or adjudica tion withheld within 90 days. Two

points are assigned if the last adjudication or adjudication

withheld was more than 90 days ago. Similarly, the legal status

of commitment, in the case of conditional release, also results

in points towards secure detent ion. The prior adjudication or

adjudication withheld which resulted in the probation or

commitment status would also score points under the prior

history section of the DRAI.

55 . In many cases, the underlying charge for which the

youth is on probation will be the deciding factor regarding

whether the youth is held in secure detention. Thus, the DRAI

is significantly affected by a probationary status which adds

additional points, a nd can trigger secure detention, regardless

of the nature of the new law violation. In addition, a trial

judge has the discretion to place a youth in secure detention on

a violation of probation for committing a new law offense even

when the score on the DRAI does not mandate secure detention.

56 . The Juvenile Justice Information System (ÐJJISÑ) is an

extensive database maintained by the Department, and utilized

during the process of billing the c ounties for secure juvenile

detention. The reason for the detention stay can be readily

ascertained based on information entered into JJIS at the time a

juvenile is assessed and detained. For instance, in the case of

a violation of probation, there is always a referral for a

violation of probation entered by th e probation officer. This

is true whether the violation is a new law violation or a

technical violation of the terms of the probation. In addition,

the Department can also ascertain from JJIS whether the juvenile

was scored on the new law violation or, a lternatively, the

underlying charge which resulted in probation.

57 . The Department concedes that it can determine, in any

given instance, why a juvenile has been detained. As

acknowledg ed by the Department, the responsibility for days,

whether predispo sition or post disposition, should be based on

the reason for the detention.

58 . Probation is considered a post disposition status.

Likewise, detention days of juveniles on probation are

postdispositional, and the financial responsibility of the

State. U nder the Proposed Rules, the only exception are those

instances in which a youth is on probation and is detained

because the youth is charged with a new violation of law, in

which case the detention days prior to final court disposition

on the new charge a re the responsibility of the counties.

59 . This finding is further supported by the DepartmentÓs

treatment of juveniles on conditional release, which is also a

post dispositional status. When a youth is on conditional

release with the Department, the youth is on supervision similar

to probation supervision. Conditional release and probation

contain the same standard conditions. The only essential

difference between a youth on Ðconditional releaseÑ and a youth

on probation is that a youth on conditional release has the

status of commitment rather than probation. There is no real

difference in how a probation officer treats a yout h on

conditional release or a youth on probation and the DRAI does

not provide any distinction for the two legal statuses. The

Department considers both probation and conditional release

qualified post disposition al statuses.

60 . Under the Proposed Rules , the c ounties pay for

detention days for youth on probation who commit a new law

violation. This is true regardless of whether the youth would

be placed in secure detention but for the probation. However,

detention days incurred by the same youth who c o mmits a

technical violation of probation are deemed the responsibility

of the s tate , since, under the Proposed Rules, the youth has not

been charged with a new violation of law .

61 . Under the Proposed Rules, when a youth on conditional

release commits ei ther a new law violation or technical

violation of conditional release and is placed in secure

detention, those detention days are to be paid by the State.

VIII. The Two Day Rule

62 . As part of the Notice of Change, the Department added

a provision refer red to as Ðthe Two Day RuleÑ to the definitions

for pre and postdisposition. The Two Day Rule provides that

detention days where the youth is on probation are the

responsibility of the s tate Ðunless the youth is charged with a

new violation of law that ha s a referral date between zero and

two days prior to the detention admission date, as determined by

subtracting the referral date in JJIS from the detention

admission date in JJIS.Ñ Proposed Rule 63G - 1.011(15)(b) .

63 . Despite conceding that it knows why juveniles are

being detained, the Department included the ÐTwo Day RuleÑ in

the Proposed Rule Ð[b]ecause it is difficult to determine the

level of accuracy in the aggregate looking at thousands of cases

at once.Ñ Thus, the Two Day Rule captures when the Department

receives a referral date for a new criminal charge and presumes

that if a juvenile is put in secure detention within two days of

that referral date, the detention is for that new charge.

64 . In some instances , detention days that should be

tre ated as s tate days would in fact be treated as c ounty days

under the ÐTwo Day Rule . Ñ Mark Greenwald , Director of Research

and Planning for the Department, testified :

Q . Well, letÓs see how factually this

would work is that there is a referral for a

charge, a new offense, and the youth is

detained the next day on a contempt

unrelated to that new charge. IsnÓt that

day going to now be -- he is going to be

detained because of a violation of the law

because of your two - day rule?

A . Under the rule , yes, the open

charge would count.

Q . But if he was a probationer and it

was a contempt, that would not have been a

county day. That would be a State day.

A . Yes .

Q . But now because of the two - day rule

we will now treat that as a county

responsibility and coun ty responsibility for

the cost?

A . Yes.

65 . Other examples were cited in the testimony, such as

where there was a pick - up order for a youth on probation who had

absconded. Where there was also a new charge, the deten tion

days would be billed to the county, even if the pick - up order

was issued prior to the new law violation.

66 . Mr. Greenwald testified that when the Department

decided to adopt the Two Day Rule, it had done no analysis to

determine whether a One Day Ru le or a Three Day Rule would more

accurately identify probationary youths placed in detention due

to a new law violation.

67 . Both Judges Orlando and LaRue expressed uncertainty

regarding the applicability and utility of the Two Day Rule,

noting that the Two Day Rule does not have any correlation or

relationship to when or how juveniles are placed in secure

detention for violations of probation.

68 . Judge LaRue further indicated that the term Ðreferral

dateÑ as referenced in the Two Day Rule has no impact on what he

does ÐwhatsoeverÑ and is a term:

IÓve never heard before. I donÓt use that

term. IÓve never heard the term. This is

something that, in reviewing this potential

rule change here Î or the rule change, I

should say, thatÓs something I came across

and scratched my head a little bit about

exactly what it means. I think I know what

it means. But itÓs not a term that I use Î

itÓs not a term of art, and itÓs not a term

that I use generally.

69 . The evidence adduced at hearing did not establish a

ration al basis for inclusion of the Two Day Rule provision in

the definitions of pre and postdisposition. Notably absent wa s

any credible evidence that use of the Two Day Rule would

accurately identify detention days related to new law violations

by probationers. To the contrary, the evidence established that

use of a blanket metric, arbitrarily set a t two days, would

u nder s everal scenarios improperly shift responsibility for

detention days to the counties. Moreover, given the

capabilities of the JJIS, there is simply no reason to ÐassumeÑ

that a detention has resulted from a new law violation if within

a given period of tim e from referral , when the Department has

the ability to accurately determine the actual reason for the

detention.

IX. Estimates, Reconciliation and Actual Costs

70 . At the start of the fiscal year, the Department

provides an estimate to the c ounties of their respective costs

of secure detention which is broken down into 12 installments

that the c ounties pay on a monthly basis. At the end of the

fiscal year, the Department performs a reconciliation of those

costs based on the Ðactual costsÑ an d sends a statement to each

county showing under or overpayment, and providing for debits

and credits as appropriate. The credits or debits would be

applied to the current year billing, although they would relate

to the previous fiscal year .

71 . Proposed Rule 63G - 1.013 provides the process for

calculating the estimate to each county at the beginning of the

fiscal year. As part of this process, the Proposed Rule

provides that the Department shall estimate Ðdetention costs,

using the current year actual ex penditures projected through the

end of the fiscal year, with necessary annualized adjustments

for any new legislative appropriations within the detention

budget entity.Ñ

72 . The Department has modified its process in the

Proposed Rules so that the estima te of costs is based , to a

certain extent , on actual expenditures from the prior year,

instead of the appropriation. However, the estimate process

also takes into account the appropriation for the upcoming

fiscal year, and a portion of the estimate of cos ts is still

based on the appropriation. The Department concedes that th ere

is a need for it to calculate the estimate as accurately as

possible, and that there have been occasions in the past where

the Department has not provided the c ounties credits owed as

part of the reconciliation process. It is also clear from the

record that credits for overpayments have not been provided by

the Department to the c ounties for several fiscal years,

beginning in FY 2009 - 10.

73 . Proposed Rule 63G - 1.017 provides the an nual

reconciliation process at year end for determining each countyÓs

actual costs for secure detention. This process includes the

calculation of each countyÓs actual cost which is determined by

the number of detention days and a calculation of the actual

costs. The total Ðactual costsÑ for secure detention are

divided by the Ðtotal number of service daysÑ to produce an

Ðactual per diem,Ñ which is then applied to each countyÓs

detention days to calculate each countyÓs share of the actual

costs. Proposed Rule 63G - 1.011 provides a definition for

Ðactual costsÑ as follows:

[T]he total detention expenditures as

reported by the department after the

certified forward period has ended, less

$2.5 million provided for additional medical

and mental health care per section

985.686(3). These costs include

expenditures in all fund types and

appropriations categories (Salaries &

Benefits, Other Personal Services, Expenses,

OCO, Food Products, Legislative Initiatives,

Fiscally Constrained Counties, Contracted

Service, G/A - Contracted Services, Risk

Management Insurance, Lease or Lease -

Purchase of Equipment, Human Resources

Outsourcing, and FCO - Maintenance & Repair).

74 . The challengers assert that the proposed rules

relating to the reconciliation process are vague, int ernally

inconsistent, and inconsistent with statutory requirements

contained in the law implemented. These include, but are not

limited to: (1) the definition of actual costs fails to include

an exclusion for Ðthe costs of preadjudicatory nonmedical

educ ational or therapeutic servicesÑ pursuant to section

985.686(3); (2) the definition of actual costs is over broad by

including Ðexpenditures in all fund types and appropriations

categories ; Ñ and (3) the Proposed Rules fail to provide for

input from the c ou nties, as set forth in section 985.686(6) .

75 . T he Proposed Rules do not provide for input from the

c ounties regarding the calculations the Department makes for

detention cost share.

CONCLUSIONS OF LAW

76 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to sections 120.56, 120.569, and 120.57(1), Florida

Statutes. Jurisdiction attaches when a person who is

substantially affected by an agencyÓs rule claims that it is an

invalid exercise of delegated legislative authority.

77 . The parties stipulated that Petitioners and Intervenor

have standing to initiate this proceeding. (Joint Pre - Hearing

Stipulation, at 9 - 10, 16). In addition, Petitioners and

Intervenor have demonstrated they meet the Ðsubstantial

interestsÑ tests for standing established in Agrico Chemical

Co mpany v. Departmen t of En vironmental Reg ulation , 406 So. 2d

478 (Fla. 2d DCA 1981). The non - fiscally constrained c ounties,

includin g Petitioners, Intervenor, and a substantial number of

FACÓs members, are adversely affected by the Proposed Rules,

which result in a negative fiscal impact to these c ounties .

78 . The party challenging a proposed agency rule has the

burden of going forwar d. The agency then has the burden to

prove by a preponderance of the evidence that the proposed rule

is not an invalid exercise of delegated legislative authority a s

to the objections raised. § 120.56(2)(a), Fla. Stat. When any

substantially affected pe rson seeks a determination of the

invalidity of a proposed rule pursuant to section 120.56(2), the

proposed rule is not presumed to be valid or invalid.

§ 120.56(2)(b), Fla. Stat.

79 . Section 120.52(8) defines what constitutes an Ðinvalid

exercise of del egated legislative authorityÑ:

(8) ÐInvalid exercise of delegated

legislative authorityÑ means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1 .;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could b e reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also requ ired. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authorit y to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementin g or

interpreting the specific powers and duties

conferred by the enabling statute.

80 . The Department has no authority as a matter of law to

further limit a statutory term beyond its plain meaning. Courts

employ a fundamental precept arising from the separation of

powers doctrine that an agency may not redefine statutory terms

to modify the meaning of a statute. See Campus Co mmc'ns, Inc.

v. Dep't of Rev. , 473 So. 2d 1290 (Fla. 1985) (department rule

defining "newspaper" for purposes of a statutory sal es tax

exemption invalid for adding criteria to statute); see also

State, DepÓt of Bus. Reg. v. Salvation Ltd. Inc. , 452 So. 2d 65

(Fla. 1st DCA 1984) (providing that a rule which added a fifth

criterion that meals must be prepared and cooked on the premis es

to the existing statutory criteria for a special restaurant

beverage license Ðenlarged upon the statutory criteria and,

thus, exceeded the ÒyardstickÓ laid down by the legislatureÑ);

Pedersen v. Green , 105 So. 2d 1 (Fla. 1958) (where statute

excepted "f eed" from sales tax, agency cannot adopt rule

limiting exemption to feed for animals kept for agricultural

purposes thereby excluding feed for zoo animals). Nor may an

agency apply a construction which conflicts with the plain

language of the statute.

81 . In addition, a rule is invalid where it is arbitrary

and capricious. A rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is capricious if it is

adopted without thought or reason or is irrational.

§ 120.52(8)(e), Fla. Stat.

X. New Law Violations by Probationers

82 . In this case, the law implemented, section 985.686,

provides that the c ounties are only responsible for the costs of

secure detention for the period of time prior to Ðfinal court

disposition.Ñ As such, th e Department may only charge the

c ounties, including Petitioners and Intervenor, the cost of

detention days serve d by a juvenile prior to the entry of a

final court disposition. The costs of all other secure

detention days are the responsibility of the s t ate, and not the

c ounties.

83 . Section 985.686(3) provides as follows:

(3) Each county shall pay the costs of

providing detention care, exclusive of the

costs of any preadjudicatory nonmedical

educational or therapeutic services and

$2.5 million provided for additional medical

and mental health care at the detention

centers, for juveniles for the period of

time prior to final court disposition. The

department shall develop an accounts payable

system to allocate costs that are payable by

t he counties.

84 . The term Ðfinal court dispositionÑ is not defined by

statute. This phrase, which establishes the cut - off point

between a county's cost and the state's cost, is actually

mentioned five times in section 985.686. Aside from section 3,

the phrase "final court disposition" is also included twice in

section 4(a), once in section 4(b) , and once in section 5.

85 . When construing a statute, one looks first to the

statute's plain meaning. Moonlit Waters Apts., Inc. v. Cauley ,

666 So. 2d 898, 900 (Fla. 1996). Furthermore, "[w]hen the

language of the statute is clear and unambiguous and conveys a

clear and definite meaning, there is no occasion for resorting

to the rules of statutory interpretation and construction; the

statute must be given its p lain and obvious meaning." Holly v.

Auld , 450 So. 2d 217, 219 (Fla. 1984) (citing A.R. Douglass,

Inc. v. McRainey , 137 So. 157, 159 (1931)).

86 . T his is not the first time the c ounties have

challenged the DepartmentÓs rules regarding detention cost

share . Okaloosa C n ty . , et al. v. DepÓt of Juv . Just . , DOAH Case

No. 12 - 0891RX (Final Order, July 17, 2012). The Final Order in

the 2012 r ule c hallenge was affirmed by Florida Ós First District

Court of Appeal. DepÓt of Juv . Just . v. Okaloosa Cnty . , 113 So.

3d 1074 (Fla. 1st DCA 2013).

87 . In the 2012 r ule c hallenge, several of the same

c ounties involved in these proceedings challenged the

DepartmentÓs existing rules, implemented in 2010, on the basis

that the 2010 rules inappropriately altered the statutory

dividing line for detention cost share. Although section

985.686 provides that the non - fiscally constrained c ounties are

only responsible for the costs of detention care prior to Ðfinal

court disposition,Ñ the 2010 rules provided that the c ounties

were r esponsible for all costs of secure detention unless the

youth had been committed to the Department.

88 . As part of the decision issued in the prior r ule

c hallenge, the DepartmentÓs use of ÐcommitmentÑ as the line of

demarcation for state and county respon sibility in its 2010

rules was invalidated. Set forth in that decision are the

following Conclusions of Law pertinent here:

71. Competent evidence established that

there are detention days associated with

dispositions other than commitment that are

curr ently being charged to the counties,

such as time waiting to be picked up by a

parent following a disposition of probation

or dismissal of charges. And there are

other varying secure - detention days which

should be post - dispositional, and charged to

the st ate under the statutory dividing line

of Ðfinal court dispositionÑ which are

evidently being charged to the counties

under the DepartmentÓs commitment

definition. Examples include days in

detention for violations of probation, and

contempt of court relati ng to a charge that

has already been disposed . . . .

72. In the Challenged Rules, the Department

limited the statutory term Ðfinal court

dispositionÑ only to final court disposition

orders of commitment to the Department.

With the adoption of the Chall enged Rules,

the Department took the broad category of

Ðfinal court dispositionÑ and limited it to

one type of disposition, i.e. commitment to

the Department. Thus, the Challenged Rules

enlarge, modify, or contravene the specific

provisions of law impleme nted. Although the

Department defends its rule as a

clarification of a statutory term, the

Department has no authority as a matter of

law to further limit a statutory term beyond

its plain meaning.

Okaloosa Cnty . , et al. v. DepÓt of Juv . Just . , Case No. 12 -

0891RX (Fl a. DOAH July 17, 2012), affÓd , 113 So. 3d 1074 (Fla.

1st DCA 2013).

89 . While t he above Final Order did determine that Ðfinal

court dispositionÑ could not be narrowed to mean only orders of

commitment to the Department , it did not distinguish between

days in detention based on a new law violation of probation and

days based on a technical violation of probation. These days

were all treated the same under the analysis.

90 . T he Department's interpretation of section 985.686 , a

statu te it is charged with administering, is entitled to great

deference. Verizon Fla., Inc. v. Jacobs , 810 So. 2d 906, 908

(Fla. 2002); Bellsouth Telecomms., Inc. v. Johnson , 708 So. 2d

594, 596 (Fla. 1998). The deference to an agency interpretation

of a sta tute it is charged with enforcing applies even if other

interpretations or alternatives exist. Atl . Shores Resort v.

507 S. St. Corp. , 937 So. 2d 1239, 1245 (Fla. 3d DCA 2006);

Miles v. Fla. A & M Univ. , 813 So. 2d 242, 245 (Fla. 1st DCA

2002); Int. Improv. Fd. v. Levy , 656 So. 2d 1359, 1364

(Fla. 1st DCA 1995). When an agency committed with authority to

implement a statute construes the statute in a permissible way,

that interpretation must be sustained even though another

interpretation may be possible or even, in the view of some,

preferable. Humhosco, Inc. v. DepÓt of Health and Rehab. Svcs. ,

476 So. 2d 258, 261 (Fla. 1 st DCA 1985).

91 . Historically, courts have given deference to agencies

based on agency expertise in the areas regulated. S ee , e.g. ,

Wallace Corp. v. City of Miami Beach , 793 So. 2d 1134 (Fla. 1st

DCA 2001) (noting that an agencyÓs construction of a statute it

is given power to administer will not be overturned unless

clearly erroneous). Traditionally, agencies generally have more

expertise in a specific area they are charged with overseeing,

and courts have noted the benefit of the agencyÓs technical

and/or practical experience in its field. Rizov v . Bd. of

ProfÓl EngÓrs , 979 So. 2d 979 (Fla. 3d DCA 2008).

92 . Stated otherwise, an agency is accorded broad

discretion and deference in the interpretation of the statutes

which it administers, and an agency's interpretation should be

upheld when it is within a range of permissible interpretat ions

and unless it is clearly erroneous. Pan Am. World Airways, Inc.

v. Fla. Pub. Serv. Comm Ó n , 427 So. 2d 716 (Fla. 1983); see also

Bd. of Podiatric Med. v. Fla. Med. Ass Ó n , 779 So. 2d 659, 660

(Fla. 1st DCA 2001). The same principle has been applied Ð to

rules which have been in effect over an extended period and to

the meaning assigned to them by officials charged with their

administration. Ñ Pan Am. World Airways, Inc. , 427 So. 2d at 719

(italics in original).

93 . Ð On the other hand, Ò judicial adhere nce to the agency's

view is not demanded when it is contrary to the statute Ó s plain

meaning. ÓÑ Sullivan v. Dep Ó t of Envtl. Prot. , 890 So. 2d 417,

420 (Fla. 1st DCA 2004) (citations omitted).

94 . Without question, an agency must follow

its own rules . . ., but if the rule, as it

plainly reads, should prove impractical in

operation, the rule can be amended pursuant

to established rulemaking procedures.

However, Ð absent such amendment, expedience

cannot be permitted to dictate its terms. Ñ

. . . That is, while an administrative

agency Ð is not necessarily bound of its

initial construction of a statute evidence d

by the adoption of a rule, Ñ the agency may

implement its changed interpretation only by

Ð validly adopting subsequent rule changes. Ñ

Cleveland Clinic Fla. Hosp. v. Ag . for Health Care Admin. , 679

So. 2d 1237, 1242 (Fla. 1st DCA 1996) (citations omitted).

95 . It has been established that Ð if an agency changes a

non - rule - based policy, it must either explain its reasons for

its discretio nary action based upon expert testimony,

documentary opinions, or other appropriate evidence . . . or it

must implement its changed policy or interpretation by formal

rule making. Ñ Courts v. Agency for Health Care Admin. , 965

So. 2d 154, 159 (Fla. 1st DCA 2007) (citations omitted).

96 . Notwithstanding the above, s tatutory changes to laws

which authorize rulemaking have in recent years circumscribed

the amount of discretion that agencies may employ. S.W. Fla.

Water Mgmnt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d

594 (Fla. 1st DCA 2000); see also Daniel Manry, Ð Agency Exercise

of Legislative Power and ALJ Veto Authority, Ñ 28 J. Nat'l Ass'n

L. Jud. 421 ( Fall 2008).

97 . In this instance, the challengers argue that the

deference normally accorded to agencies in construing statutes

they administer should not attach because the Department did not

rely on any agency expertise or practical knowledge. Instead,

a ccording to the challengers , the Department changed its

interpretation of the applicable statut e and decisional

authority interpreting the statute, based solely on the budget

decisions of the governor and L egislature, as ultimately adopted

in the GAA.

98 . To the extent the DepartmentÓs interpretation of

section 985.686, as now codified in the chall enged rules, is

inconsistent with its prior practice, the reasonableness of the

DepartmentÓs explanation of the inconsistencies is a factual

matter for determination based on the evidence.

§ 120.68(7)(e)3., Fla. Stat.

99 . In this instance, the Department has met its burden to

explain the reason for its changed interpretation of the

countiesÓ responsibility under section 985.686 for

predisposition detention days. As articulated by

Mr. Schuknecht, the Department realized that its (hastily

formulated) initi al interpretation following the app ellate

courtÓs decision in June 2013 was overly broad, because it

included probati oners with new offenses as post disposition

cases. The Department concluded that detained probationers with

new offenses sho uld logically b e considered pre disposition

cases, since there is no Ðfinal court dispositionÑ as to the new

offenses.

100 . The undersigned cannot, as a matter of law, conclude

that the DepartmentÓs revised in terpretation of section 985.686

is clearly erroneous or contra ry to the Ð plain and obvious

meaning Ñ of the statute . This is because the statute simply

does not address the situation where a youth commits multiple

substantive law violations over time and thus has the status of

both postdisposition (commitment or prob ation) and

predisposition (detained and awaiting final court disposition on

a new charge). The DepartmentÓs interpretation that detention

arising from a new law violation by a youth on probation is the

responsibility of the counties is certainly one reaso nable

interpretation of section 985.686, is not clearly erroneous, and

is entitled to deference.

101 . While the DepartmentÓ s new statutory interpretation

wa s likely influenced by input from the GovernorÓs O ffice, such

fact does not, in and of itself, render the new interpretation

Ðclearly erroneous . Ñ Rather, because the new interpretation of

section 985.686 is amo ng those that are reasonable and is not

clearly erroneous, it is permissible, and therefore does not

enlarge, modify, or contravene the stat ute being implemented.

102 . The challengers also assert that the Department

changed its interpretation of section 985.686, and decisional

authority interpreting the same, based solely on its perception

that the L egislature mandated a certain reading of th e statute

through an appropriations bill. Again, while the evidence

established that the GovernorÓs Office encouraged the Department

to reconsider its initial interpretation of the stateÓs

responsibility following the appellate courtÓs decision, the re

is no evidence that the Department was mandated by the

L egislature to change its interpretation. Indeed, while the

GovernorÓs Office may have urged the Department to change its

interpretation, the GAA funding was not the same as what had

been recommended in the GovernorÓs budget submittal.

103 . Since the DepartmentÓs new interpretation of section

985.686 is permissible, the challengers Ó argument that the

Department, through its Proposed Rules, has interpreted the GAA

as a modification to the substantive law, is rejected.

XI. The ÐTwo Day RuleÑ

104 . At hearing t he Department acknowledged that the

specific reason a youth has been det ained can be deter mined

through its JJIS database. H owever, because the Two Day Rule

does not differentiate between detentions resulting from new law

violations and those unrelated to new law violations (e.g.,

detentions resulting from technical violations of probation and

contempt of court) , it would improperly pass on detention costs

to the c ounties for days which otherwise woul d properly be

assigned to the state under the DepartmentÓs new interpretation .

105 . The DepartmentÓs JJIS has the capability to readily

and accurately ascertain the reason a youth has been detained.

At hearing, the Department did not persuasively explain why ,

when it has the technical capability to know precisely why a

youth has been detained, it was necessary to presum e that if a

juvenile is put in secure detention within two days of a

referral date, the detention is for a new law violation . The

evidence established that the two day presumption would, in some

circumstances, improperly attribute detention days to the

counties. As such, this provision of the Proposed Rules fail s

to advance the purposes for which they were purportedly adopted ,

and c ontravenes the statute being implemented .

106 . Even assuming , arguendo , that the use of some blanket

timeframe between referral and detention was justified , the

DepartmentÓs selection of two days, as opposed to some other

period of time, is arbitrary, as there was no investigation or

analysis underlying the selection of two days .

107 . Since the Department, through the Proposed Rules, is

seeking to shift the responsibility for probationers who commit

a new violation of law to the countie s, it is not unreasonable

to require the Department to accurately determine in which

instances that should occur. The Two Day Rule is counter to

this goal, and is therefore invalid, since it would assign to

the counties costs for which they are not statut orily

responsible.

XII. Estimate, Reconciliation, and Actual Costs

10 8 . Section 985.686 provides in relevant part:

(3) Each county shall pay the costs of

providing detention care, exclusive of the

c osts of any preadjudicatory nonmedical

educational or therapeutic services and

$2.5 million provided for additional medical

and mental health care at the detention

centers, for juveniles for the period of

time prior to final court disposition. The

department shall develop an accoun ts payable

system to allocate costs that are payable by

the counties.

* * *

(5) Each county shall incorporate into its

annual county budget sufficient funds to pay

its costs of detention care for juveniles

who reside in that county for the period of

time prior to final court disposition. This

amount shall be based upon the prior use of

secure detention for juveniles who are

residents of that county, as calculated by

the department. Each county shall pay the

estimated costs at the beginning of each

month. Any difference between the estimated

costs and actual costs shall be reconciled

at the end of the state fiscal year.

(6) Each county shall pay to the department

for deposit into the Shared County/State

Juvenile Detention Trust Fund its share of

the countyÓs total costs for juvenile

detention, based upon calculations published

by the department with input from the

counties.

109 . Proposed Rule 63G - 1.013Ós process for calculating the

estimate purports to be based on the actual expenditures a nd

usage of the prior year, yet continues to allow adjustments

based on the current year appropr iation.

110 . Appropriations are not costs. Appropriation means Ða

legal authorization to make expenditures for specific purposes

within the amounts authorized by law.Ñ § 216.011, Fla . Stat.

111 . As part of the estimate process provided by statute

for the funding of secure detention, the Department bills each

c ounty prospectively for its respective share of the costs of

secure detention. This amount must be based on Ðprior usage.Ñ

§ 985.686(5), F la. Stat. However, the estimate process provided

by the Proposed Rules overinflates the amounts required to be

paid by the c ounties on a monthly basis by continuing to focus

at least a portion of this estimate on the appropriation to the

Department, as op posed to the expenditures incurred for the

prior year which are based on prior usage.

112 . Section 985.686(6) also provides that the

calculations of the Department must be made with input from the

c ounties. The estimate process provided by the Proposed R ules

fails to comply with the law implemented, and is thus invalid.

113 . In terms of the definition of actual costs provided

by Proposed Rule 63G - 1.011, section 985.686(3) excludes from the

c ountiesÓ funding responsib ilit y the following costs: Ðthe

costs of any preadjudicatory nonmedical educational or

therapeutic services and $ 2.5 million provided for additional

medical and mental health care at the detention centers.Ñ

Although the Proposed Rules incorporate a portion of this

exclusion, the Department h as inexplicably failed to include

Ðpreadjudicatory nonmedical educational or therapeutic

services.Ñ This language has been a part of the statute since

its inception, yet the Department has failed to include any

provision in its rule addressing this subjec t. Further, as in

the process for the estimate, the Department does not provide a

process for c ounty input into these amounts and calculations

before the annual reconciliation statement is finalized and

provided to each county, contrary to the requirement s of the law

implemented. § 985.686(6), Fla. Stat.

XIII. The Statement of Estimated Regulatory Costs (SERC)

114 . Pursuant to section 120.52(8)(f), an agency rule is

invalid where Ð[t]he rule imposes regulatory costs on the

regulated person, county, or c ity which could be reduced by the

adoption of less costly alternatives that substantially

accomplish the statutory objectives.Ñ

115 . In addition, a proposed rule is invalid for material

failure to follow applicable rulemaking procedures where the

agency fails to prepare a proper statement of estimated

regulatory costs or to respond to a written lower cost

regulatory alternative. § 120 .541(1)(f), Fla. Stat.

116 . Section 120.541 sets forth the process regarding the

statement of estimated regulatory costs (ÐSERCÑ):

(1)(a) Within 21 days after publication of

the notice required under s. 120.54 (3)(a), a

substantially affected person may submit to

an agency a good faith written proposal for

a lower cost regulatory alternative to a

proposed rule which substantially

accomplishes the objectives of the law being

implemented. The proposal may include the

alternative of not adopting any rule if the

proposal explains how the lower costs and

objectives of t he law will be achieved by

not adopting any rule. If such a proposal

is submitted, the 90 - day period for filing

the rule is extended 21 days. Upon the

submission of the lower cost regulatory

alternative, the agency shall prepare a

statement of estimated regulatory costs as

provided in subsection (2), or shall revise

its prior statement of estimated regulatory

costs, and either adopt the alternative or

provide a statement of the reasons for

rejecting the alternative in favor of the

proposed rule.

117 . The Challengers assert that the DepartmentÓs SERC did

not comply with the statutory requirements because it did not

address the Ðregulatory costsÑ of the Proposed Rule. The y

further argue that the Department has failed to demonstrate that

the regulatory cost s to the c ounties could not be reduced by the

adoption of a less costly alternative, t o wit , the Department Ós

prior interpretation of section 985.686 and practice in place at

the time the Department entered into the joint stipulations.

Therefore , the Proposed Rules are an invalid exercise of

delegated legislative authority , according to the Challengers .

118 . The ChallengersÓ arguments regarding the DepartmentÓs

SERC are rejected. As found, the DepartmentÓs new

interpretation of section 985.686, as c odified in the Proposed

Rule s , is not invalid. Conversely, the alternative advanced by

the counties , that the state continue to pay the detention costs

for probationers who are charged with a new violation of law, is

inconsistent with the DepartmentÓs valid interpretation of

section 985.686. 4 /

XIV. AttorneyÓs Fees and Costs

119 . Petitioners and Intervenor have requested attorneys'

fees and costs pursuant to section 120.595(2). Inasmuch as this

Final Order determines that some provisions of the Propos ed

Rules are an invalid exercise of delegated legislative authority

as defined in section 120.52(8) (c), and ( e ), Petitioners and

Intervenor are entitled to a hearing as to entitlement and, if

entitled, the amount of any reasonable fees and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the specifically identified provisions

of proposed rule 6 3G - 1.011, 63G - 1.013 and 63G - 1.017 constitute

an invalid exercise of legislatively delegated authority.

Jurisdiction is retained for the purpose of determining the

issue of the award of attorney Ó s fees and costs. Any motion to

determine fees and costs shall be filed within 60 days of the

issuance of this Final Order.

DONE AND ORDE RED this 22nd day of April, 2015 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of April, 2015 .

ENDNOTES

1 / Unless otherwise noted, all statutory references are to the

2014 version of the Florida Statutes.

2 / The Department not ed that Ðother Counties have advocated a

similar position though they have not formally identified it as

a lowe r cost regulatory alternative.Ñ

3 / ÐIndependent JudgmentÑ is de fined by section 216.011(1),

Florida Statutes, as follows:

(u) ÐIndependent judgmentÑ means an

evaluation of actual needs made separately

and apart from the legislative budget

request of any other agency or of the

judicial branch, or any assessments by the

Governor. Such evaluation shall not be

limited by revenue est imates of the Revenue

Estimating Conference.

4 / The DepartmentÓs SERC estimated that the counties would incur

certain Ðtransactional costsÑ under the draft rule, stating:

Although it is not a mandatory transactional

cost Ðnecessary to comply with the r ule,Ñ

non - fiscally constrained (paying) counties

might be inclined to implement a process for

reviewing their resident probationersÓ

detention stays to ensure the existence of

an open charge.

And,

During fiscal year 2012 - 13, there were 6761

probationers with detention stays on open

charges. If counties decided to review

these cases to ensure that they were

responsible for the stay, it is estimated

that a data analyst earning an average of

$20 per hour should take no longer than 15

minutes on average to r eview each case. The

total, statewide annual cost would thus be

$33,805 ($5 X 6761 = $33,805).Ñ

The abovesigned notes that with the invalidation of the ÐTwo Day

RuleÑ provision, the county audit process referenced by the

Department above should not be necessary. Rather, it will be

incumbent on the Department to document probationers with a new

violation of law in order to properly shift those detention days

to the counties.

COPIES FURNISHED :

Brian D. Berkowitz, General Counsel

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

(eServed)

Mary G. Jolley, Esquire

County of Volusia

123 West Indiana Avenue , Room 301

Deland, Florida 32720

(eServed)

Adam Katzman, Esquire

Broward County Attorney's Office

115 South Andrews Avenue , Suite 423

Fort Lauderdale, Florida 33301

(eServed)

Gregory Thomas Stewart, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

Terrell K. Arline, Esquir e

Bay County Attorney's Office

840 West 11th Street

Panama City, Florida 32401 - 2336

(eServed)

Virginia Delegal, General Counsel

Florida Association of Counties

100 South Monroe Street

Tallahassee, Florida 32301

Michele L. Lieberman, Esquire

Alachua County Attorney General Office

Post Office Box 5547

Gainesville, Florida 32627

Janette S. Knowlton, Esquire

Charlotte County Attorney`s Office

18500 Murdock Circle , 5th Floor

Port Charlotte, Florida 33948 - 1094

Shannon L. Wilson, Esquire

Office of the C ounty Attorney

2725 Judge Fran Jamieson Way

Building C, 3rd Floor

Viera, Florida 32940

(eServed)

Jeffrey A. Klatzkow, Esquire

Collier County Attorney`s Office

3299 Tamiami Trail East , Suite 800

Naples, Florida 34112 - 4902

(eServed)

Charles V. Peppler, Esquire

Escambia County Attorney's Office

221 Palafox Place , Suite 430

Pensacola, Florida 32502

(eServed)

Garth Christopher Coller, Esquire

Hernando County Attorney`s Office

20 North Main Street , Suite 462

Brooksville, Florida 34601 - 2817

Albert J. Hade ed, Esquire

Flagler County Attorney's Office

1769 East Moody Boulevard , Building 2

Bunnell, Florida 32110 - 5992

(eServed)

Sanford A. Minkoff, Esquire

Lake County Attorney`s Office

315 West Main Street, Suite 335

Post Office Box 7800

Tavares, Florida 32778 - 7800

Stephen M. Todd, Esquire

Hillsborough County Attorney`s Office

Post Office Box 1110

Tampa, Florida 33601

(eServed)

Richard Wm. Wesch, Esquire

Lee County Attorney's Office

2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902 - 0398

Mitchell O. Palmer, Esquire

Manatee County Attorney's Office

Post Office Box 1000

Bradenton, Florida 34206 - 1000

Herbert W. A. Thiele, Esquire

Leon County Attorney's Office

301 South Monroe Street , Suite 202

Tallahassee, Florida 32301 - 1803

(eServed)

Michael D. Durham, Esquire

Martin County Attorney Ós Office

2401 Southeast Monterey Road

Stuart, Florida 34996

David Allen Hallman, Esquire

Nassau County Attorney's Office

96135 Nassau Place , Suite 6

Yulee, Florida 32097 - 8635

(eServed)

Denise Marie Niem an, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway

West Palm Beach, Florida 33401

James Bennett, Esquire

Pinellas County Attorney's Office

315 Court Street , 6th Floor

Clearwater, Florida 33756

Angela J. Jones, Esquire

Santa Rosa Co unty Attorney's Office

6495 Caroline Street , Suite C

Milton, Florida 32570

(eServed)

Stephen E. DeMarsh, Esquire

Sarasota County Attorney's Office

1660 Ringling Boulevard , 2nd Floor

Sarasota, Florida 34236 - 6808

Patrick F. McCormack, Esquire

St. Johns County Attorney's Office

500 San Sebastian View

St. Augustine, Florida 32084

(eServed)

Daniel S. McIntyre, Esquire

St. Lucie County Attorney's Office

2300 Virginia Avenue

Fort Pierce, Florida 34982

(eServed)

Mark D. Davis, Esquire

Walton County Atto rney's Office

161 East Sloss Avenue

Defuniak Springs, Florida 32435

Carly J. Schrader, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

Christina K. Daly, Interim Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Loree L. French, Esquire

Office of General Counsel, City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

(eServed)

Scott D. Shevenell, E squire

Orange County Attorney's Office

201 South Rosalind Avenue , 3rd Floor

Orlando, Florida 32801

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 Rules

of Appellate Procedure. Such proceedings are commenced by

filing the o riginal notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.

' . . I Pos-1-- N oC TeA CoW Froi'\\, R.u!r

Y i1f-- · ( 1 (t- 0) '6 I;.. 7 I l

63G-1.010 Scope.

This rule establishes the process by which the funding of detention services is shared by state and

county government.

Rulemaking Authority 985.64, 985.686(10) FS. Law Implemented 985.686(1) FS. History-New

7-6-10.

63G-l.Oll Definitions.

(1) "Funding of detention services" means the funding required to provide detention services

as determined by the General Appropriations Act Implementing Bill and/or General Bills.

(2) "Final Court Disposition" means the decision announced by the court at the disposition

hearing determining the most appropriate services for a youth. Final court disposition includes

commitment, probation, and dismissal of charges. "Cemmitm:ent" means the fiaa-1 eeurt

diSJ>esitiea ef a juvenile deliaqueney eharge through an erder plaeiag a yeuth ia the eustedy ef

the department for plaeement ia a resideatia-1 er aea resiaential pregram. COI'flfflitm:eat te the

aepartment is ia lieu efa dispesitiea efprobatiea.

(3) "Shared County/State Juvenile Detention Trust Fund" means the state trust fund used to

capture budget and costs associated with the counties' share of detention funding.

(4) "Fiscally constrained county" means a county which is.not required to pay the full costs

of its resident juveniles' detention services.

(5) "Juvenile Probation Officer" (JPO) means the primary case manager for the purpose of

managing, coordinating, and monitoring the services provided and sanctions saaetieas required

for youth on probation, post-commitment probation or conditional release supervision.

(6) "Juvenile Justice Information System" (JJIS) means the department's electronic

information system used to gather and store information on youth having contact with the

department.

(7) "County of Residence" means the county where, at the time of referral, a child resides, as

determined by a department intake officer pursuant to Rule 63G-1.012, F.A.C., and entered in

the Juvenile Justice Information System, except for those youth described in subsection 63G-

1.012(2), F.A.C., below.

(8) "Pre eemmitm:ent" means these says a yeuth is aetaiaed ia a detentiea eeater prier te

beiag eemmitea te the aepartment .

.([}f9t "Reconciliation period" means the first through the last day of a month during which

reconcilation by the county and the department for the previous month's utilization takes place.

{2}fl-Gj "Secure detention .. " "detention" or "detention care" means a physieally state owned

and operated physically restricting facility used for the temporary care of children, pending

adjudication, disposition, or placement.

tl.Q)fl-B "Service day" means any day or portion of a day spent by a youth in secure

detention.

"Utilization" means a summary of service days.

(12) "Estimated per diem" means the per diem calculated for billing purposes prior to the

upcoming state fiscal year utilizing an estimate of the total service days and the estimated costs

for the detention budget entity for the current fiscal year. with necessary annualized adjustments.

The resulting per diem is then used to estimate the cost to a county under the methodology in

Rule 630-1.013, F.A.C.

(13) "Actual per diem" means the per diem calculated utilizing actual service days and the

actual costs of the completed fiscal year for the purpose of reconciliation.

(14) "Predisposition" means the period of time a youth is in detention care prior to entry of a

final court disposition by the court. The counties are responsible for all predisposition days

including all service days for youth that are, at the time of the detention:

(a) In detention for contempt of court if the youth is not committed to the department or on

department supervised probation.

(b) In detention while on department supervised probation when the youth is charged with a

new violation of law that has a referral dated between zero and two days prior to the detention

admission date, as determined by subtracting the referral date in JJIS from the detention

admission date in JJIS.

(15) "Postdisposition" means the period of time a youth is in detention care after entry of a

final court disposition. The State is responsible for all postdisposition days including all service

days for youth that are, at the time of the detention:

(a) Committed to the department, including youth on conditional release.

(b) On department supervised probation, unless the youth is charged with a new violation of

law that has a referral date between zero and two days prior to the detention admission date, as

determined by subtracting the referral date in JJIS from the detention admission date in JJIS.

(c) Without charges, as all charges against the youth have been dismissed or the youth has

been found not guilty.

(16) "Actual costs" means the total detention expenditures as reported by the department

after the certified forward period has ended, less $2.5 million provided for additional medical

and mental health care per section 985.686(3). These costs include expenditures in all fund types

and appropriations categories (Salaries & Benefits, Other Personal Services, Expenses, OCO,

Food Products, Legislative Initiatives, Fiscally Constrained Counties, Contracted Service, G/A­

Contracted Services, Risk Management Insurance, Lease or Lease-Purchase of Equipment,

Human Resources Outsourcing, and FCO-Maintenance & Repair).

(17) "Referral date" means the date that the department receives notification and associated

documents from law enforcement that the youth has been charged with an offense. The referral

date is often the same date as the offense date, but in some cases occurs after the offense date. ·

Rulemaking Authority 985.64, 985. 686(11) 985. 986(1 0) FS. Law Implemented 985.686 FS.

History-New 7-6-10'-', A=m=en=d=e=d ____ _

63G-1.012 Determining Residence.

(1) Department of Juvenile Justice (DJJ) JPOs and contracted providers responsible for

intake shall utilize the following procedure to determine a referred child's county of residence:

(a) The address provided by the child at intake will initially be checked against the address

included in the arrest affidavit and against any existing address for the child already in the JJIS.

(b) In all cases, an effort will be made to verify the address with the child's parent or

guardian.

(c) All attempts to contact the parent or guardian, and the results of those attempts, will be

noted in the chronological record in the child's case file.

(2) County of residence for children in substitute care placements, such as foster care, will be

where the dependency case originated for the youth. Street address information recorded in the

JJIS will be that of the Department of Children and Family Services or its contracted agency

district office or service center for confidentiality purposes.

(3) Address verification procedures are to be included in the annual refresher training on the

JJIS given to departmental JPOs and its contracted providers responsible for intake.

Rulemaking Authority 985.64, 985.686(10) FS. Law Implemented 985.686(5) FS. History-New

7-6-10.

63G-1.013 Calculating Estimated Funding.

(1) Estimates for each county's individual portion of detention funding will be calculated as

follows:

(a) The department shall estimate the number of service days for the upcoming fiscal year

based upon prior use of secure detention and generally accepted statistical methods. Utilizing

previous fiscal year data, the department shall estimate: All youth served iR secure deteH:tioH:

duriH:g the most receH:tly reconeiled previous fiscal year as retleeted in the JJIS will be identified;

1. detention costs, using the current year actual expenditures projected through the end of the

fiscal year, with necessary annualized adjustments for any new legislative appropriations within

the detention budget entity;

2. The number of predisposition service days for each county; and

3. The total number of service days for secure detention, including both predisposition and

postdisposition service days.

(b) The estimated costs shall be divided by the total number of service days estimate, which

will produce an estimated per diem. The total number of pre commitment service days iR seeure

deteH:tion is computed by including all days up to but not ineluding the date of commitmeH:t to

the department.

(c) The department shall multiply the estimated per diem by the expected number of

predisposition service days for each county to calculate each county's estimated share of

detention costs.

(2) The total H:Umber of pre commitmeH:t service da;·s for each county from the most recently

reconciled pre•lious fiscal year data \\Vill be dhrided by the total pre commitmeH:t

senrioe days for all coooties for that same time period to arrive at each county's percentage ofthe

tetah

(3) Each coooty's percentage will be multiplied by the total estimated aooaal appropriation in

the shared eoooty/state jw1erule deteH:tion trust fimd for the upcoming fiscal year to determine

each eoooty' s share of the total badget.

Each county's The estimated share of the total budget will be billed to the cmmties in

monthly installments.

Invoices are to be mailed at the beginning of the month prior to the service period, so

that an invoice for the August service period will be mailed in July.

Rulemaking Authority 985.64, 985.686(11) 985.686(10) FS. Law Implemented 985.686(3) FS.

History-New 7-6-10z...:. ___ __

63G-1.014 Fiscally Constrained Counties.

(1) Each fiscally constrained county's estimated share of detention budget is determined in

the same manner as those for non- fiscally constrained counties.

(2) For informational purposes, fiscally constrained counties will be invoiced for their

estimated monthly share even though they will not be required to remit payment.

(3) Prior to the beginning of each fiscal year the total estimated budget needed for all fiscally

constrained counties will be compared to the amount appropriated in General Revenue to the

department for fiscally constrained counties. If the total estimated annual amount for utilization

exceeds the appropriated amount, matching funds will be required to make up the shortfall.

Fiscally constrained counties will be assessed for the amount of the shortfall under the following

methodology:

(a) Each fiscally constrained county's utilization will be compared to the total for all fiscally

constrained counties to determine a percentage of the total.

(b) The county's percentage will be multiplied by the shortfall amount computed in

subsection (3) above to determine the individual county's amount due.

( 4) The department shall determine whether an estimated shortfall is likely by July 31. If a

shortfall is expected, the department shall provide fiscally constrained counties information on

their share of the expected shortfall on or before August 15.

(5) Fiscally constrained counties will be billed for their share of the shortfall in equal

monthly installments beginning November 1 through May 1.

( 6) If after the annual reconciliation is complete it is found that there was in fact no shortfall

or that the shortfall was overestimated, the fiscally constrained counties will receive a refund. If

the shortfall was underestimated, the department may seek matching funds from the counties to

make up the difference.

Rulemaking Authority 985.64, 985.686(10) FS. Law Implemented 985.686(4) FS. History-New

7-6-10.

63G-1.015 Receipt of Payment.

(1) Payment is to be made by check or by pre-arranged wire transfer, which is due the first

day of the monthly service period, such that the July service period payment is due July 1.

(2) Payment will be deemed in arrears on the second day of the month the payment is due.

Rulemaking Authority 985.64, 985.686(10) FS. Law Implemented 985.686(5), (6) FS. History­

New 7-6-10.

63G-1.016 Monthly Reporting.

(1) Each month, the department shall generate a web based on-line utilization report that

provides each county's actual usage for the previous service month. The report is to be used by

the counties to validate utilization.

(2) The report shall contain the following information:

(a) Youth's name;

(b) Youth's address at the time of the referral;

(c) Sex;

(d) Date of birth;

(e) N arne of parent or guardian, if available;

(f) Phone contact, if available;

(g) Charge category;

(h) Admission date;

(i) Final court Commitm:ent disposition date, if available; and

.G1fgj Number of detention days.

(3) The report will be available electronically on the first day of each month for the previous

month's utilization.

(4) The limited release of juvenile identifying information contained in each county's

monthly report is confidential. The release will not include treatment or charging information, is

limited to the county official(s) designated to receive the report, and is not to be used for any

purpose other than that of verifying the provision of detention services.

Rulemaking Authority 985.64, 985.6860 1) 985.686(10) FS. Law Implemented 985.686{11 (7)

FS. History-New 7-6-10,_,, A=m=en=d=e=d ____ ....

63G-1.017 Monthly/Annual Reconciliation and Dispute Resolution.

(1) On the first day of each month, the department shall make available to each county a

utilization report described in Rule 630-1.016, F.A.C.

(2) The county shall have from the first to the fourteenth day of the month to review the on­

line utilization information reported for the previous month. If the county takes issue with any of

the utilization data, it shall mark the record for dispute on-line and provide a reason for the

dispute. Disputes involving a detained youth's county of residence or disposition must include

one or more of the following indicia of specificity:

(a) Address invalid- not in county;

(b) Address invalid - street number not valid;

(c) Address invalid- not residence of youth;

(d) Address invalid- see text (must enter text);

(e) Detention stay invalid- see text (must enter

(f) Service day is a postdisposition day- see text (must enter text).

(3) The department will make every effort to review all disputes for the previous month

between the fifteenth and twenty-fourth day of each month for the reconciliation period. The

department's response, provided on-line, constitutes notice of final action. All pending disputes

will be resolved by the department no later than 60 days after the end of the reconciliation

period.

( 4) In October of each year, the department will perform an annual reconciliation of

utilization and costs for the prior fiscal year to calculate the difference between the estimated

costs and the actual costs of each county for its share of detention care. The dg>artment shall

provide: Based oH a county's actual utili:t:atioH, a reealoolatioH of that eoaB:ty' s share of the

shared emmty/state jliYeHile deteHtioH trust fund expeHditllfes \\vill be performed.

(a) The actual cost to operate detention care based on actual expenditures. detailing

expenditures by appropriation category and by detention center.

(b) The number of predisposition service days for each county.

(c) The total number of all service days for secure detention, including both predisposition

and postdisposition service days.

(5) In November of each year, the department will provide each county an annual

reconcilation statement for the previous fiscal year. The calculation shall be performed as

follows: The statemeHt shall reflect the differeaee betv;eea the amoliHt paid by the eo\\:Hlty based

on the estimated litilization and the aeteallitilization recoHeiled iR Slibsectioo (4) above.

(a) The actual costs shall be divided by the total number of service days, which will produce

an actual per diem.

(b) The actual per diem will be applied to each county's actual predisposition service days to

calculate each county's actual costs.

(c) The reconciliation shall reflect the difference between the estimated costs paid by the

. ' . '

county during the fiscal year and the county's actual costs. The statement shall reflect the

difference between the amount paid by the county based on the estimated utilization and the

actual utilization reconciled in subsection ( 4) above.

(6) If the total amount paid by a county falls short of the amount owed based on actual

utilization, the county will be invoiced for that additional amount. The amount due will be

applied to the county's account. An invoice will accompany the reconciliation statement, and

shall be payable on or before March 1. If the amount paid by a county exceeds the amount owed

based on actual utilization, the county will receive a credit. The credit will be applied to the

county's account and be included on the invoice sent in November.

(7) For the purpose of determining the actual utilization and actual per diem, the department

is responsible for paying for the cost of detention for all service days for youth that reside out of

state or whose addresses cannot be determined.

Rulemaking Authority 985.64, 986. 686(11) 985. 686(1 ()) FS. Law Implemented 985. 686(5), (7)

FS. History-New 7-6-1 0'-',

63G-L018 Billing.

(1) The monthly reporting marks the point at which a county may take issue with the charges

referenced in the report, but it cannot be the basis for withholding payment. Adjustments,

including those necessitated by dispute resolution, cannot be made until the annual

reconciliation.

(2) Invoices will include the following information:

(a) Invoice date;

(b) Invoice number;

(c) Remittance address;

(d) Payment due date;

(e) Billing Service period;

(f) Total amount billed; and

(g) Department contact information.

Rulemaking Authority 985.64, 985.686(10) FS. Law Implemented 985.686(5), (7) FS. History­

New 7-6-10.