05-004004RU Jacob R. Myers vs. Department Of Children And Family Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, August 22, 2007.

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

JACOB R. MYERS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4004RU

)

FLORIDA CIVIL COMMITMENT )

CENTER, DEPARTMENT OF )

CORRECTIONS, DESOTO COUNTY )

SHERIFF'S OFFICE, LIBERTY )

BEHAVIORAL HEALTH CORPORATION, )

AND DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondents. )

)

FINAL ORDER OF DISMI SSAL

On October 25, 2005, Jacob R. Myers (Petitioner) filed a

Petition of Unpromulgated Rule Challenge as an Improper Exercise

of Delegated Legislative Authority, in which 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 Order commanding

Res pondents to cease and desist in enforcing Policy

No. F - 24 . . . ."

The Petitioner is a person being detained under the

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

(entitled "Involuntary Civil Commitment of Sexually Violent

Predators" an d 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 sexually

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 is safe for the per son 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

be confined. The DCFS has contracted with Liberty Behavioral

Health Corporation (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 b y

FCCC and sets forth a program of "privileges and incentives"

intended to encourage "appropriate and therapeutic behavior" by

residents, and to establish consequences for inappropriate

behavior.

On November 9, 2005, Respondents Rick Harry (Harry) and

He rbert T. Caskey (Caskey) filed a Motion to Dismiss, or in the

alternative, Motion for Summary Final Order. Respondent Harry

is the executive director for FCCC. Respondent Caskey is

president of LBHC.

Although time for response to the Motion to Dismiss h as not

yet expired, the hearing is currently scheduled for November 29,

2005. The time for response expires on November 23, 2005. The

Division of Administrative Hearings (DOAH) will be closed from

November 24 until November 28, 2005. Accordingly, this O rder is

being entered absent a response from the Petitioner; however,

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

allegations of the Petitioner's rule challenge are true,

notwithstanding the assertions in the Harry/Caskey Motion to

Dismiss disput ing the Petitioner's alleged placement in solitary

confinement and/or other restrictive status.

The Motion to Dismiss asserts that the Petition for Rule

Challenge filed in this case should be dismissed for the

following reasons:

1. Neither the FCCC no r LBHC is an "agency" 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. The Petitioner's rule challenge s eeks to address

constitutional issues that are outside the jurisdiction of DOAH.

4. The challenged Policy F - 24 is no more 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 validity of a rule or a proposed rule. Subsection

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 rule is an invalid exercise of delegated

legislative authority.

Subsection 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 departm ental unit described in

s. 20.04.

2. Authority, including a regional water

supply authority.

3. Board.

4. Commission, including the Commission on

Ethics and the Fish and Wildlife

Conservation Commission when acting pursuant

to statutory authority der ived 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 they are

expressly made subject to this act by

general or special law or existing judicial

decisions.

This definition does not include any legal

e ntity or agency created in whole or in part

pursuant to chapter 361, part II, any

metropolitan planning organization 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 subsect ion, or any multicounty

special district with a majority of its

governing board comprised of elected

persons; however, this definition shall

include a regional water supply authority.

A private entity is not an "agency" under the

Administrative Procedure s Act even though it performs certain

public functions or contractually agrees to provide services for

a state 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, I nc. , 399 So. 2d 1137 (Fla. 1st

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

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

Accordingly, neither the LBHC nor the FCCC is an agency

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

a nd 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.

The Petitioner asserts that the restrictions allegedly

imposed upon him violate his due process and equal protection

rights under the U.S. and Florida Constitutions. The 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 Constitutions.

As to the constitutional issues raised by the Petitioner,

an Administrative Law Judge is without authority to determine

the c onstitutionality of existing rules. Key Haven Associated

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

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

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

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

the Petitioner be released from any existing confinement.

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

delegation of legislative authority, Subsection 120.52(8),

Florida Statutes (2005), provides the f ollowing 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 authorit y 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

re quired 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 decisio ns, 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 be 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 required. 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 t o 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 agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisio ns 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 implementing or

interpreting the specific po wers and duties

conferred by the same statute.

The Petition generally alleges that DCFS is without

authority to adopt Policy 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. Howeve r, Section 394.930, Florida Statutes

(2005), clearly provides DCFS with specific rulemaking authority

related, but not limited, to the designation of the facility as

follows:

394.930 Authority to adopt rules. -- The

Department of Children and Family Servi ces

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 multidisciplinary 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 commitment under this

part;

(5) The components of the basic treatment

plan for all committed persons under this

part;

(6) The protocol to in form 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 r ules adopted by DCFS in response to the statute, the

Petition fails to comply with the requirement at Subsection

120.56(1)(b), Florida Statutes (2005), that the petition "must

state with particularity the provisions alleged to be invalid

with sufficient ex planation of the facts or grounds for the

alleged invalidity."

As to whether Policy F - 24 was required to be adopted 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, Florida

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 DCA

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

Petitioner has failed to do so.

Finally, the Petitioner asserts that employees of the

Florida Department of Corrections (DOC) and the DeSoto C ounty

Sheriff's Office (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 has any responsibility for

adoption of "rules" under which the facility is operated,

thereby again failing to comply with Subsection 120.56(1)(b),

Florida Statutes (2005).

Based on the foregoing, it is hereby

ORDERED that the Petition for Unpromulgated Rule Challenge

as an Improper Exercise of Delegated Legislative Authority is

hereby DISMISS ED.

DONE AND ORDERED this 17th day of November , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Park way

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 Administrative Hearings

this 17th day of November , 2005 .

COPIES FURNISHED :

Barbara C. Fromm, Es quire

Jolly & Peterson, P.A.

Post Office Box 37400

Tallahassee, Florida 32315

Vernon H. Keen

DeSoto County Sheriff Office

208 West Cypress Street

Arcadia, Florida 34266

General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Louis A. Vargas, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 6563

Jacob R. Myers

No. 990418

13613 Southeast Highway 70

Arcadia, Florida 34266

Grego ry Venz, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Bu ilding

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affecte d 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 th e 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 rendition of the order to

be reviewed.