05-003562RU Fernando Viruet vs. Florida Civil Commitment Center, Department Of Corrections, Desoto County Sheriff`s Office, Liberty Behavioral Health Corporation, And Department Of Children And Family Services Status: Closed DOAH Final Order on Friday, January 6, 2006.

Summary: The Division of Administrative Hearings has no jurisdiction to address constitutional issues raised by the Petitioner; there is no jurisdiction over private entities performing certain public functions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO VIRUET, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3562RU

)

FLORIDA CIVIL COMMITMENT )

CENTER, DEPARTMENT OF )

CORRECTIONS, DESOTO COUNTY )

SHERIFF'S OFFICE, LIBERTY )

BEHAVIORAL HEALTH CORPORATION, )

AND DEPARTMENT OF CHILDREN A ND )

FAMILY SERVICES, )

)

Respondent s . )

)

FINAL ORDER

On September 28, 2005, Petitioner Fernando Viruet filed a

"Petition for Rule Challenge as an Improper Exercise of

Delegated Legislative Authority."

The Petition states in part as follows:

The Petitioner . . . seeks a Declaration

pursuant to Section 120.56, Fla. Stat.,

ordering Petitioner's immediate release from

solitary confinement, or restrictive status,

and an or der commanding Respondents to cease

and desist in enforcing Policy No. F - 24,

effective February 9, 2005. . . .

The Petition seeks a determination that: 1) Liberty

Behavioral Health Corporation (LBHC) is an "agency" as the term

is defined at S ubs ection 12 0.52(1), Florida Statutes (2005) ;

2) Policy No. F - 24 is an "improper delegation of legislative

authority"; 3) "the failure to provide affected parties violated

ex post facto, due process, equal protection and separation of

powers"; 4) the Division of Admin istrative Hearings (DOAH) has

the authority to enter a decree finding that the resident's

constitutional rights were violated, and continue to be violated

contrary to the United States and Florida Constitutions; 5) DOAH

has jurisdiction to order Respondent s to "cease and desist" in

further enforcement of Policy No. F - 24; and 6) DOAH enter "an

order commanding the release of all those in solitary

confinement, instanter."

The Petition further "seeks the immediate issuance of a

declaration releasing Fernando V iruet from solitary confinement

or restrictive status as a result of due process and equal

protection violations."

DOAH determined that the Petition constituted a challenge

to an unpromulgated rule pursuant to Subsection 120.56(4),

Florida Statute s (2005), and entered an Order on October 4,

2005 , assigning the case to the undersigned Administrative Law

Judge. The hearing was scheduled for November 3, 2005.

On October 18, 2005, Respondents Rick Harry (Harry) and

Herbert T. Caskey (Caskey) filed a Motion t o Dismiss the case.

Petitioner requested additional time to respond to the motion,

and by Order Granting Continuance dated November 1, 2005, the

response deadline was extended to November 30, 2005.

On October 31, 2005, Respondent Department of Corrections

filed a Motion to Dismiss to which no response has been filed.

On November 14, 2005, John F. Curry, Jr ., filed a Notice of

Voluntary Dismissal in the case. Although Mr. Curry had

previously requested to represent Petitioner in this proceeding,

his requ est had been denied by Order dated October 13, 2005, and

the Notice of Voluntary Dismissal has been disregarded.

On November 17, 2005 , Respondent DeSoto County Sheriff's

Office ( DCSO ) filed a Motion to Dismiss to which no response has

been filed.

The e xtended deadline for a response has now passed without

additional response from Petitioner.

Petitioner is a person being detained under the provisions

of Chapter 394, Part V, Florida Statutes (2005) (entitled

"Involuntary Civil Commitment of Sexually Vio lent Predators" and

commonly known as the Jimmy Ryce Act, hereinafter the "Act").

The Act provides for the continued confinement of persons

classified as "sexually violent predators" after the completion

of incarceration imposed for convictions of sexuall y violent

offenses. The Department of Children and Family Services (DCFS)

is the state agency charged with post - incarceration " control,

care, and treatment until such time as the person's mental

abnormality or personality disorder has so changed that it i s

safe for the person to be at large." § 394.917(2), Fla . Stat .

(2005) .

Section 394.9151, Florida Statutes (2005) , authorizes DCFS

to contract with "a private entity or a state agency" for

operation of the facility within which persons so identified may

b e confined. DCFS has contracted with LBHC, a private entity,

to operate the Florida Civil Commitment Center (FCCC) as the

facility housing persons confined under the Act.

The challenged policy (hereinafter "F - 24") was issued by

FCCC and sets forth a progr am of "privileges and incentives"

intended to encourage "appropriate and therapeutic behavior" by

residents, and to establish consequences for inappropriate

behavior.

On October 18, 2005, Respondents Harry and Caskey filed a

Motion to Dismiss, or in the a lternative, Motion for Summary

Final Order. Respondent Harry is the Executive Director for

FCCC. Respondent Caskey is p resident of LBHC.

For purposes of this Order, it is deemed that all the

allegations of Petitioner's rule challenge are true.

The Moti on to Dismiss asserts that the Petition for Rule

Challenge filed in this case should be dismissed for the

following reasons:

1. Neither the FCCC nor LBHC is an "agenc y " as the term is

defined at Section 120.52, Florida Statutes (2005).

2. Neither Harry nor Caskey is an employee of any state

agency, and DOAH is without jurisdiction over them as

individuals.

3. Petitioner's rule challenge seeks to address

constitutional issues that are outside the jurisdiction of DOAH.

4. The challenged F - 24 is no mor e than an internal

operating procedure, and not a rule subject to challenge under

Section 120.56, Florida Statutes (2005) .

Section 120.56, Florida Statutes (2005) , sets forth the

grounds upon which a substantially affected person may

challenge the valid ity of a rule or a proposed rule.

S ubs ection 120.56(1)(a) , Florida Statutes (2005), provides:

Any person substantially affected by a rule

or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rul e is an invalid exercise of delegated

legislative authority.

S ubs ection 120.52(1), Florida Statutes (2005) , sets forth

the definition of "agency" applicable to this case, and provides

as follows:

"Agency" means:

(a) The Governor in the exercise of all

executive powers other than those derived

from the constitution.

(b) Each:

1. State officer and state department, and

each departmental unit described in s. 20.04.

2. Authority, including a regional water

supply authority.

3. Board.

4. Comm ission, including the Commission on

Ethics and the Fish and Wildlife Conservation

Commission when acting pursuant to statutory

authority derived from the Legislature.

5. Regional planning agency.

6. Multicounty special district with a

majority of its governing board comprised of

nonelected persons.

7. Educational units.

8. Entity described in chapters 163, 373,

380, and 582 and s. 186.504.

(c) Each other unit of government in the

state, including counties and municipalities,

to the extent the y are expressly made subject

to this act by general or special law or

existing judicial decisions.

This definition does not include any legal

entity or agency created in whole or in part

pursuant to chapter 361, part II, any

metropolitan planning organiz ation created

pursuant to s. 339.175, any separate legal or

administrative entity created pursuant to s.

339.175 of which a metropolitan planning

organization is a member, an expressway

authority pursuant to chapter 348, any legal

or administrative entity created by an

interlocal agreement pursuant to s.

163.01(7), unless any party to such agreement

is otherwise an agency as defined in this

subsection, or any multicounty special

district with a majority of its governing

board comprised of elected persons; h owever,

this definition shall include a regional

water supply authority.

A private entity is not an "agency" under the

Administrative Procedures Act even though it performs certain

public functions or contractually agrees to provide services for

a st ate agency. Florida Dept. of Ins. v. Florida Ass'n of

Insurance Agents , 813 So. 2d 981 (Fla. 1st DCA 2002); Vey v.

Bradford Union Guidance Clinic, Inc. , 399 So. 2d 1137 (Fla. 1st

DCA 1981); State Road Department v. Cone Brothers Contracting

Co. , 207 So. 2 d 489 (Fla. 1st DCA 1968).

Accordingly, neither the LBHC nor the FCCC is an agenc y

under the provisions of Chapter 120, Florida Statutes (2005) ,

and DOAH has no jurisdiction over either LBHC or FCCC.

Likewise, insofar as is material to this proceeding, DOAH has no

jurisdiction over Harry or Caskey, private individuals employed

by the private entities with which DCFS has contracted for

operation of the facility.

Petitioner asserts that the restrictions allegedly imposed

upon him violate his due process and equal protection rights

under the U.S. and Florida Constitutions. Petitioner further

asserts that his confinement under the provisions of the Act

constitutes a violation of prohibitions against ex post facto

laws set forth in the U.S. and Florida Cons titutions.

As to the constitutional issues raised by Petitioner, an

Administrative Law Judge is without authority to determine the

constitutionality of existing rules. Key Haven Associated

Enterprises, Inc. v. Board of Trustees of the Internal

Improveme nt Trust Fund , 427 So. 2d 153 (Fla. 1982); Cook v.

Florida Parole and Probation Commission , 415 So. 2d 845 (Fla.

1st DCA 1982). Further, DOAH is without authority to order that

Petitioner be released from any existing confinement.

As to the issue of whe ther Policy F - 24 is an invalid

delegation of legislative authority, S ubs ection 120.52(8),

Florida Statutes (2005) , provides the following definition:

"Invalid exercise of delegated legislative

authority" means action which 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, ci tation 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 n ot 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

be reduced by the adoption of l ess 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 required. An agency may

adopt on ly 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

c apricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

desc ribing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

same statute.

The Petition generally alleges that DCFS is without

authority to adopt Po licy F - 24 or to delegate such authority to

LBHC or FCCC. There has been no response of record filed by the

DCFS in this case. However, Section 394.930, Florida Statutes

(2005) , clearly provides DCFS with specific rulemaking authority

related, but not lim ited, to the designation of the facility as

follows:

394.930 Authority to adopt rules. -- The

Department of Children and Family Services

shall adopt rules for:

(1) Procedures that must be followed by

members of the multidisciplinary teams when

assessing and evaluating persons subject to

this part;

(2) Education and training requirements for

members of the multidisciplinary teams and

professionals who assess and evaluate persons

under this part;

(3) The criteria that must exist in order

for a multidi sciplinary team to recommend to

a state attorney that a petition should be

filed to involuntarily commit a person under

this part. The criteria shall include, but

are not limited to, whether:

(a) The person has a propensity to engage in

future acts of sexual violence;

(b) The person should be placed in a secure,

residential facility; and

(c) The person needs long - term treatment and

care.

(4) The designation of secure facilities for

sexually violent predators who are subject to

involuntary commi tment under this part;

(5) The components of the basic treatment

plan for all committed persons under this

part;

(6) The protocol to inform a person that he

or she is being examined to determine whether

he or she is a sexually violent predator

under this part.

In that the Petition does not specifically address the

statutory rulemaking authority provided to DCFS or reference any

related rules adopted by DCFS in response to the statute, the

Petition fails to comply with the requirement at S ubs ection

12 0.56(1)(b), Florida Statutes (2005) , that the petition "must

state with particularity the provisions alleged to be invalid

with sufficient explanation of the facts or grounds for the

alleged invalidity."

As to whether Policy F - 24 was required to be adopt ed as a

"rule," the Motion to Dismiss asserts that Policy F - 24 is

essentially an internal operating procedure (IOP) and that based

on Adams v. Barton , 507 So. 2d 665 (Fla. 1st DCA 1987), IOPs are

not rules subject to challenge under the Section 120.56, Flo rida

Statutes (2005) .

In Adams , the District Court continued a line of decisions

holding that individual prisons were not "agencies," and that

the IOPs of an individual prison were not rules subject to

challenge in a Section 120.56 proceeding. However, the FCCC is

not a prison but a "civil commitment center," and whether Adams

would preclude the Petitioner from properly challenging the IOP

is unknown.

Further, the District Court held that the IOP " must be

based upon an agency policy, preferably policy set by a properly

promulgated rule, that provides the ' specificity required to

constitute a sufficiently narrow basis ' " for issuance of the

operating procedure. Id . at 666, citing Department of

Corrections v. Piccirillo , 474 So. 2d 1199, 1201 (Fla. 1st DC A

1985) (on rehearing); Department of Corrections v. Adams , 458

So. 2d 354, 356 - 57 (Fla. 1st DCA 1984) . Accordingly, the policy

upon which an FCCC IOP is based may potentially be subject to a

properly raised rule challenge; however, in this case the

Petit ioner has failed to do so.

Finally, Petitioner asserts that employees of the Florida

Departme nt of Corrections (DOC) and DCSO were involved in a

"raid" on February 9, 2005 ; yet beyond the assertion, the

Petition fails to allege that either the DOC or the DCSO ha s any

responsibility for adoption of "rules" under which the facility

is operated. The Petition fails to comply with S ubs ection

120.56(1)(b), Florida Statutes (2005) .

The DOC filed a Motion to Dismiss on October 31, 2005,

where it correctly assert s that the DOC has no statutory

responsibility for operating the FCCC or for promulgation of any

rules relating to such operation.

Similarly, the DCSO fil e d a Motion to Dismiss on

November 17, 2005, where it correctly asserts that the DCSO has

no statuto ry responsibility for operating the FCCC or for

promulgation of any rules relating to such operation.

Based on the foregoing, it is hereby

ORDERED that:

The pending Motions to Dismiss are granted, and the

Petition for Unpromulgated Rule Challenge as an I mproper

Exercise of Delegated Legislative Authority filed by Fernando

Viruet is hereby DISMISSED.

DONE AND ORDERED this 6th day of January , 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administra tive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

this 6th day of January , 2006 .

COPIES FURNISHED :

Fernando Viruet

No. 990080

13613 Southeast Highway 70

Arcadia, Florida 34266

Reginald D. Dixon, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 3239 9 - 1050

Barbara C. Fromm, Esquire

Jolly & Peterson, P.A.

Post Office Box 37400

Tallahassee, Florida 32315

John Raymaker, Esquire

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

Vince nt A. Sica, Esquire

Vincent A. Sica, P. A.

Post Office Box 2080

Arcadia, Florida 34265

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Louis A. Vargas, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 6563

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Clo ud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

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 original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of renditio n of the order to

be reviewed.