07-001969RU Larry Phillips vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Wednesday, January 16, 2008.

Summary: Challenges to private companies internal operating policies are not "rules" of the Department. A private company is not "agency" as that term is used.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY PHILLIPS, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1969RU

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

FINAL ORDER

A fo rmal hearing was held in this case on October 3, 2007,

in Arcadia, Florida, at the Florida Civil Commitment Center

(FCCC) before J. D. Parrish, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petiti oner: Thomas Panno, Qualified Representative

SVP No. 99 - 0565

Florida Civil Commitment Center

13613 Southeast Highway 70

Arcadia, Florida 34266 - 7829

For Responde nt: Gregory D. Venz, Agency Clerk

John A. Raymaker, Esquire

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Ro om 204

Tallahassee, Florida 32399 - 0700

STATEMENT OF THE ISSUE

Whether statements issued by the GEO Group, Inc. (GEO), a

private company under contract with the Respondent, Department

of Children and Family Services (Respondent or Department) to

operate the FCCC constitute unpromulgated "rules" within the

definition of Section 120.52, Florida Statutes (2007).

PRELIMINARY STATEMENT

The Petitioner, Larry Phillips, filed the first petition in

this cause on May 7, 2007. That petitio n was deemed a challenge

to an unpromulgated rule and was assigned to the undersigned for

formal hearing on May 11, 2007. Thereafter, the Respondent

filed a Motion to Dismiss GEO and individuals who are employees

of GEO who were named Respondents in the o riginal petition.

After affording the Petitioner time to respond to that motion,

an Order Granting the Motion to Dismiss was issued on June 5,

2007.

The Petitioner was granted leave to amend the petition and

did so on August 1, 2007. The hearing was sche duled for

October 3, 2007, at the FCCC to afford the Petitioner with a

meaningful opportunity to participate in the hearing. Rule

challenges are normally conducted in Tallahassee, Florida.

Being mindful that the Petitioner is involuntarily retained

at t he FCCC, has limited copying and mail services, and sought

the assistant of a qualified representative, the undersigned

scheduled the hearing in this cause at the FCCC. All of the

Petitioner's requests with regard to these issues were fully

considered. D eadlines were extended to allow for delays

inherent in the FCCC mail system. Additionally, as the

Petitioner's time in the FCCC law library was also limited (as

was his qualified representative's), additional time was

provided to allow the Petitioner to p repare and file documents.

Finally, the Petitioner represented he has a hearing deficiency

that was also considered. At the final hearing, the undersigned

verified that the Petitioner was able to hear all of the

proceedings. The Petitioner's qualified r epresentative was also

allowed to confer with the Petitioner and the proceedings were

delayed to assure the attendance of the qualified representative

at the hearing.

At the hearing, the Petitioner identified the following

FCCC operating procedures as un promulgated rules: D - 4 (Resident

Receipt of Postal and Legal Mail); D - 6 (Publication of Resident

Rules); D - 13 (Limiting and Suspending Privileges); D - 14

(Movement Restrictions); D - 15 (Behavior Management and

Intervention); D - 16 (Secure Management); D - 21 ( Resident Receipt

of Packages, Books, and Mail Order); G - 6 (Resident and Area

Searches); G - 10 (Pornography, Prohibited and Inappropriate

Materials); G - 19 (Use of Force); G - 24 (Computer Lab); G - 5

(Grievance Handbook); and the FCCC Resident Handbook. As to

e ach of the foregoing, the Petitioner maintains the FCCC

operating procedure has not been adopted as a rule and therefore

must be invalidated until the Department engages and adopts the

policies as rules. In response to the Respondent's Motion to

Dismiss r aised at hearing, the Petitioner voluntarily abandoned

his claim against operating procedures D - 17 (Religious Services

and Activities), E - 6 (Use of Medical Seclusion and Restraint),

and E - 80 (Baker Act Procedure). Ruling was reserved on the

Respondent's M otion to Dismiss as to the Petitioner's challenge

to procedures D - 6 and G - 19. However, since the Petitioner

presented no evidence during the final hearing as to either of

those provisions, the Respondent's Motion to Dismiss the claim

against FCCC operatin g procedures D - 6 and G - 19 is granted.

The Petitioner's Motion to Continue filed September 27,

2007 (renewed at the hearing by the Petitioner's qualified

representative) was denied. Challenges to rules may be filed at

any time. The Petitioner did not ex press any circumstance

sufficient to warrant the continuance of the instant case given

the protracted period of time taken to get the matter to

hearing. The understandable confusion regarding the internal

policies (whether they are currently used, the cur rent version,

and who drafted) also delayed the Petitioner's preparation of

his case. Nevertheless, the issue of law underlying each of the

Petitioner's claims remained the same: that is, whether the

internal policies and operational guidelines utilized b y the

private company operating the FCCC must be adopted as rules by

the Department?

The Petitioner presented testimony from George Emanuolidis,

Timothy Budz, and Teion Wells - Harrison. Although the Petitioner

pre - filed copies of Petitioner's Exhibits A th rough P, these

exhibits were either not offered into evidence or, if offered,

not received. The Petitioner's Exhibit 1 was proffered for the

record but also not received. The Respondent also called

witnesses Timothy Budz and Teion Wells - Harrison to testi fy on

behalf of the Department. The Respondent's Exhibits 1, 2, 5, 6,

7, 8, 9, and 12 were admitted into evidence.

A transcript of the proceeding was not filed. At the

conclusion of the hearing the Petitioner requested 30 days

within which to file Prop osed Final Orders. That request was

granted. On November 08, 2007, the Petitioner sought additional

time to file a proposed final order. That request was also

granted. The Petitioner was given leave until December 11,

2007, to file a proposed final ord er. On December 12, 2007, the

Petitioner filed a Notice of Not Filing Proposed Final Order.

This Final Order is therefore entered to resolve the issues of

the case. The Respondent's Proposed Final Order (filed

November 5, 2007) has been considered in th e preparation of this

Final Order.

A Motion to Stay filed by someone not a party to this

proceeding was denied on December 3, 2007. This case was not

consolidated with any other case pending before the Division of

Administrative Hearings.

FINDINGS OF FA CT

1. According to Part V of Chapter 394, Florida Statutes

(2007), the Legislature determined that sexually violent

predators generally have antisocial personality features that

are not amenable to mental illness treatment. In response to a

finding that such persons are likely to engage in repeated acts

of criminal behavior, the Legislature created a civil commitment

procedure for the long - term care and treatment of sexually

violent predators. The FCCC was created as the appropriate

facility to house an d treat these individuals. See §§ 394.910

et seq. , Fla. Stat. (2007).

2. When a "sexually violent predator" is to be released

from the incarceration portion of a criminal sentence, the

person is committed to the custody of the Department for

"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 person to be at large." See § 394.917, Fla.

Stat. (2007).

3. The GEO Group, Inc. (GEO) is a private company that

opera tes the FCCC under a contract with the Respondent. The

contract ends on June 30, 2009.

4. The contract dictates that GEO will:

. . . fully implement all programs for FCCC

residents which shall include a

comprehensive sexual offender treatment

program and all services necessary,

including internal security, to support the

full - time residential care of persons living

in a secure facility, as described in the

Program Description (attached as Exhibit H).

5. The contract also directs GEO to:

. . . be res ponsible for implementing a

resident behavior management system that

encourages good conduct, corrects

misconduct, and generally promotes safety

and security (as described in Exhibit H,

Program Description).

6. The contract specifies that resident behav ior

management would allow residents to earn or lose privileges in

accordance with their conduct at FCCC; would list specific acts

and types of misconduct, with a specific range of consequences

associated with each act or type of misconduct; would secure

c onfinement for residents whose conduct endangers the safe and

secure operation of the facility; and would have an adequate due

process mechanism for residents impacted by a behavior decision.

The Respondent did not and does not dictate the specifics of ho w

FCCC internal policies and guidelines are to be worded or

developed.

7. Timothy J. Budz, MSW, LCSW, is the FCCC facility

administrator. Mr. Budz is responsible for the day - to - day

operations at the FCCC and supervises employees and activities

at the fa cility. He is also responsible for the development and

implementation of internal policies and guidelines that GEO uses

to comply with its contractual obligations with the Department.

8. The Petitioner, Larry Phillips, is involuntarily

committed to the F CCC. The record is not clear as to how long

Mr. Phillips has resided at the FCCC.

9. The Petitioner has challenged internal operating

policies employed at the FCCC. Generally speaking, the

operating procedures that are the subject of this proceeding are

policies that held over from when the FCCC was operated by

another company, Liberty Behavioral Health Corporation

(Liberty). GEO took over this facility from Liberty in July

2006 and although it has attempted to revisit some of the

policies (to include c onsideration of input from residents at

FCCC, staff at FCCC, and the Respondent), the policies have not

been completely reviewed or revised. Implicit in the testimony

of Mr. Budz was a recognition that this Petitioner has been at

the facility since (at le ast) July of 2006. The policies left

by Liberty are not all enforced by GEO.

10. The Petitioner challenges FCCC policy D - 4. The policy

(Respondent's Exhibit 9) states:

It is the policy of the Florida Civil

Commitment Center (FCCC) to ensure that

resident s will be able to send and receive

mail and authorized packages.

11. The "purpose" for policy D - 4 states:

To ensure that FCCC residents can receive

and send mail and receive authorized

packages in a timely manner while protecting

against the introduction of contraband and

other prohibited materials into the

facility.

12. FCCC policy D - 4 was effective July 29, 2005. Attached

to the three page policy were forms to be used in connection

with mail that is received and sent. The Petitioner did not

testify . There is no evidence that the Petitioner has been

denied the ability to receive or send mail through the United

States Postal Services (all mail and packages must be sent to

residents via this method per the policy procedure).

13. The Petitioner als o challenged FCCC policy D - 13. This

policy provides:

The Florida Civil Commitment Center will

utilize restrictions on, or suspensions of,

resident privileges in response to behavior

that poses a danger to self, others, or

property, or which is disruptive or

otherwise interferes with the treatment

milieu.

14. The stated purpose of FCCC policy D - 13 was:

To limit or suspend privileges for residents

who exhibit inappropriate or threatening

behavior, until it is determined that the

resident is able to exerci se the privileges

in a safe and proper manner.

15. FCCC policy D - 13 was effective March 3, 2003. Listed

among its procedures are the restrictions and suspensions that

are individualized to the resident and circumstance of the

behavior reported. The Pet itioner did not establish that any

restrictions or suspensions of privileges had been enforced

against him for any reason. At all times during the hearing of

this cause the Petitioner and his qualified representative

exhibited appropriate behavior and did not appear to be limited

by any of the restrictions noted in policy D - 13.

16. The Petitioner challenged FCCC policy D - 14. This

policy states:

The Florida Civil Commitment Center will

impose restrictions on a resident's movement

in response to inappropr iate behavior, which

is disruptive to the normal, efficient

operation of the facility.

17. The purpose of FCCC policy D - 14 is:

To limit exposure to external stimulation

for residents who are disruptive and/or

demonstrate a need to reduce their level of

agitation.

18. FCCC policy D - 14 was effective March 3, 2003. Among

the procedures noted for this policy is a provision of daily

visits by a clinical therapist for a resident with movement

restrictions. The Petitioner did not establish that he was eve r

subjected to movement restrictions. The Petitioner did not

establish that he was ever denied a visit by a clinical

therapist. The Petitioner did establish, however, that certain

rooms used for residents whose movements are limited are the

equivalent of a locked "cell" as that term is generally

understood.

19. The Petitioner challenged FCCC policy D - 15. This

policy was effective October 27, 2003, and has been identified

as "under revision" by GEO. This policy, entitled "Behavior

Intervention and Mana gement," is one of the policies GEO is

redrafting. In this regard GEO has sought input from the

Respondent but is not governed by or dictated to follow any

suggestions offered by the Department. Nevertheless, as adopted

at the time of hearing, the policy provided:

The Florida Civil Commitment Center will

intervene when residents behave in a manner

that jeopardizes their own safety or the

safety of the facility, its staff, and/or

residents; disrupts the orderly operation of

the facility; and/or is inconsis tent with

the treatment goals established for the

resident. Interventions will be based on

the therapeutic and clinical needs of the

resident, with due consideration given to

the rights, consistent fair treatment, and

well being of all residents and facil ity

staff.

20. The purpose of FCCC policy D - 15 is:

To establish a set of procedures whereby

inappropriate behavior can be corrected or

controlled in a reasonable and timely

fashion, and the resident has a meaningful

opportunity to participate in the beh avior

management process and seek review of the

final disposition.

21. The procedure for FCCC policy D - 15 recognizes "minor

misbehavior" that does not pose a significant threat and denotes

its differences from resident behavior that does jeopardize

secur ity or safety. The Petitioner did not establish that he

committed or was subject to either designation (minor

misbehavior or otherwise). It is unknown if the policy has ever

been enforced against this Petitioner. At hearing the

Petitioner and his qualif ied representative conducted themselves

in an appropriate, respectful manner and did nothing by word or

act to suggest either has exhibited conduct within the

governance of this policy.

22. FCCC policy D - 16 provides:

The Florida Civil Commitment Center w ill

utilize Secure Management in response to

aggravated misbehavior, which jeopardizes

the safety and security of the facility, its

staff, and/or residents or seriously and

maliciously disrupts the normal operations

of the facility.

23. The purpose for FCCC policy D - 16 is:

To restrict the mobility of a resident whose

aggravated misbehavior demonstrates the need

for a more secure environment until such

time as the resident's mental status has

returned to a manageable level and the

resident no longer poses a risk to the

safety or efficient operation of the

facility.

24. Under the procedures of this policy, the resident's

liberty (mobility) and privileges may be limited. Again, as

previously stated, the rooms wherein a resident who is subject

to this pol icy may be confined are similar to "cells."

Additionally, a resident subject to this confinement may be

placed in hand and leg restraints. There is no evidence that

the Petitioner has ever been subjected to this policy or is

likely to be subjected to the terms of this policy. Further,

there is no evidence that the policy would be applied to any

resident not governed by the specific terms of the policy, ie.

someone who must be placed in a locked room to prevent injury to

others, damage to property, or thr eats to the security or normal

operation of the facility.

25. FCCC policy D - 16 is currently under revision, but the

version applicable to this case became effective March 3, 2003.

26. The Petitioner challenged FCCC policy D - 21 but it was

not received in evidence. Petitioner's Exhibit H (not in

evidence) purported to be this policy but is, on its face,

outdated and has been superseded by another policy: FCCC policy

D - 4. As previously discussed, the receipt of packages by

residents is governed by the "Pa ckages and Mail" provision found

in FCCC policy D - 4.

27. FCCC policy G - 10 was also not admitted into evidence.

It is entitled "Pornography, Prohibited and Inappropriate

Materials." It was marked for identification (but not offered)

as Petitioner's pre - filed Exhibit L. The Petitioner did not

present any evidence regarding this policy.

28. FCCC policy G - 24 was also not admitted into evidence.

It is entitled "Resident Computer Lab." It was marked for

identification (but not offered) as Petitioner's pre - filed

Exhibit N. The Petitioner did not present any evidence

regarding how he has been adversely or positively affected by

this policy.

29. The Petitioner may have sought to challenge FCCC

policy D - 5. This policy (admitted into evidence as Respondent's

Ex. 12) is entitled "Resident Communications, Complaints and

Grievances." FCCC policy D - 5 was effective June 23, 2003. The

reason it is unclear whether this is the policy Petitioner

sought to challenge is due to the numbering of policies. The

FCCC poli cy included with Petitioner's pre - filed exhibits,

Petitioner's Exhibit P, was numbered "G - 5" however that

provision purportedly dealt with "Supervision of Resident

Movement." As to either policy, the Petitioner did not present

any evidence to establish he had been adversely affected or

would likely be affected by the policies.

30. As previously indicated, the Petitioner abandoned his

challenge to FCCC policy E - 6, Use of Medical Seclusion and

Restraints (Petitioner's Pre - filed but not offered Exhibit I).

31. The Petitioner's pre - filed Exhibit K [FCCC policy G - 6

entitled "Facility Searches"] was not admitted into evidence.

The Petitioner offered no evidence to support a challenge to

this provision.

32. The Petitioner also challenged the FCCC Resident

Ha ndbook. The handbook was revised August 1, 2005, and portions

of it are being revisited by GEO. A copy of the Handbook is

provided to the FCCC resident upon arrival. It is also

available to FCCC residents within the dormitories. The

handbook gives an o verview of the various FCCC operational

policies and affords the resident a concise, quick reference for

topics also addressed during the resident's orientation.

33. One of the problems in this case stems from a general

confusion as to what policy will govern a particular situation.

In this regard GEO has not provided current editions of policies

to the Petitioner or his qualified representative. In some

instances it may be that the policy is still under

consideration. The Respondent does not have con trol over the

terms of the policies that have been or will become effective.

The FCCC internal operating policies are ultimately determined

by GEO and its staff. Presumably, GEO will provide updated

versions of all policies to the Petitioner (and others at FCCC)

when the handbook and policies are completed. The ability of a

resident to review internal policies would undoubtedly prove

instructive as to the types of behaviors and consequences likely

to result from them. Additionally, as a grievance proced ure

will be provided it should afford residents with an outlet to

vent their disagreements with any policy.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.54, and 120.56, Fla. Stat. (2007).

35. Section 120.56, Florida Statutes (2007), provides in

pertinent part:

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS. --

(a) Any person substantially affected by an

agency statement ma y seek an administrative

determination that the statement violates s.

120.54 (1)(a). The petition shall include

the text of the statemen t or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

(b) The administrat ive law judge may extend

the hearing date beyond 30 days after

assignment of the case for good cause . If a

hearing is held and the petitioner proves

the allegations of the petition, the agency

shall have the burden of proving that

rulemaking is not feasib le and practicable

under s. 120.54 (1)(a).

(c) The administrative law judge may

determine whether all or part of a statement

violates s . 120.54 (1)(a). The decision of

the administrative law judge shall

constitute a final order. The division

shall transmit a copy of the final order to

the Department of State and the committee.

The Department of State shall publish notice

of the final order in the first available

issue of the Florida Administrative Weekly.

(d) When an administrative law judge enters

a final order that a ll or part of an agency

statement violates s. 120.54 (1)(a), the

agency shall immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action. (Emphasis Added.)

36. In order to prevail in this case the Petitioner must

establish:

A. that he is a person substantially

affected by an agency statement;

B. that the statement compla ined of was

made by an agency;

C. that the statement meets the definition

of "rule;" and

D. that the statement has not been adopted

by the rulemaking process.

37. First, GEO is not an agency as that term is defined by

law. Further, the FCCC is not a n agency.

38. Section 120.52(1), Florida Statutes (2007), defines

"agency." That section provides:

(1) "Agency" means:

(a) The Governor in the exercise of all

executive powers other than those derived

from the constitution.

(b) Each:

1. State o fficer and state department, and

each departmental unit described in s.

20.04.

2. Authority, including a regional water

supply authori ty.

3. Board, including the Board of Governors

of the State University System and a state

university board of trustees when acting

pursuant to statutory authority derived from

the Legislature.

4. Commission, including the Commission on

Ethics and the F ish 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 they 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

pur suant to chapter 361, part II, any

metropolitan planning organization created

pursuant to s. 339.175 , any separate legal

or administrat ive entity created pursuant to

s. 339.175 of which a metropolitan planning

organization is a member, an expressway

authority pursuant t o chapter 348 or

transportation authority under chapter 349,

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; however, this definition shall

include a regional water supply authority.

39. None of the statements complained of were made by an

agency. The agency, the Department, has not adopted, endorsed

or approved of the statements.

40. Section 120.52(15), Florida Statutes (2007), defines

"rule." Th at section provides, in part:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requ irement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. (Emphasis Added.)

41. Section 120.54(1)(a), Florida Statutes (2007),

provides:

Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

42. Section 394.930, Florida Statutes (2007), provides:

The De partment 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

membe rs 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 unde r 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. (Emphasis Added.)

43. In response to the foregoing directives of the

Legislature, the Depa rtment has promulgated:

Florida Administrative Code Rule 65E - 25.001

entitled "Assessment and Evaluation

Procedures";

Florida Administrative Code Rule 65E - 25.002

entitled "Education and Training

Requirements for Multidisciplinary Team

Members";

Florida A dministrative Code Rule 65E - 25.003

entitled "Criteria for Recommendation that

Involuntary Civil Commitment Petition be

Filed";

Florida Administrative Code Rule 65E - 25.004

entitled "Designation of Secure Facilities;"

Florida Administrative Code Rule 65E - 25 .005

entitled "Basic Treatment Plan Components";

and

Florida Administrative Code Rule 65E - 25.006

entitled "Notification of Examination."

44. As to each area designated by the Legislature, the

Respondent has an adopted rule. The statute does not direct the

Respondent to adopt rules to govern the specifics for the

internal operations of the FCCC.

45. Moreover, Section 394.9151, Florida Statutes (2007),

authorizes the Respondent to "contract with a private entity or

state agency for use of and operation of facilities to comply

with the requirements of this act." Clearly the Legislature

contemplated that the facilities to house and treat these

residents might be operated by a private entity. The act does

not specify further restrictions. Accordingly, s o long as the

Respondent meets its statutory responsibilities and the private

entity operating the facility meets its contractual obligations,

there is no statutory directive or authority regulating the day -

to - day operations of the facilities.

46. In th is case, the Petitioner maintains that the

internal policies implemented by a private company under

contract with the Department to operate the FCCC facility must

be adopted as rules by the Respondent. It is conceded that none

of the policies complained a bout have been so adopted. However,

since the internal policies are not agency statements of general

applicability that implement, interpret, or prescribe law or

policy or describe the procedure or practice requirements of an

agency they are not "rules" b y definition. See § 120.52(15),

Fla. Stat. (2007).

47. As presented in this case, the day - to - day operations

of the FCCC are conducted within the contractual obligations

required by the statute. GEO must assure that residents are

housed in a secure, resi dential facility and that long - term

treatment is provided. The details related to internal

operational policies that are unrelated to the Department's

statutory responsibility are not "policies" of the Respondent.

48. The Legislature authorized the Res pondent to engage a

private company to effect the day - to - day operations of the FCCC.

In this case, none of the challenged policies relate to the

assessment or evaluation of residents. The challenge does not

address the education and training requirements for members of

the multidisciplinary teams and professionals. The criteria

used to involuntarily commit a person to the FCCC have not been

challenged. Similarly, the designation of the FCCC as a secure

facility is not at issue. The Petitioner has not c hallenged the

components of the basic treatment plan for all committed

residents nor the protocol for examination and determination of

whether a person is a sexually violent predator. These are the

statutory directives governing the Respondent. Unpromulg ated

statements or policies construing these topics might be deemed

"rules" of the Department. None so designated have been

challenged.

49. In this case, the unpromulgated "rules" at issue are

the internal operating policies of a private company. The

Re spondent does not have to approve the "rules" or authorize the

"rules." Residents unhappy with the policies of the FCCC may

file a grievance in accordance with that facility's grievance

policy. The internal policy at this facility may or may not be

simil ar to those at another facility. The population at this

facility is, by definition, fairly unique. Presumably its

policies are crafted to address those unique matters.

50. It is concluded that a private company acting under

the guidance and control of a contract with an agency is not,

itself, an "agency" for purposes of the Administrative Procedure

Act. See Myers v. Florida Civil Commitment Center et al. , 953

So. 2d 726 (Fla. 1st DCA 2007). Further, it is concluded that

the internal operating policies of GEO are not de facto "rules"

of the Department because the Respondent's approval is not

required to draft or implement a policy. Moreover, the GEO

policies do not implement, interpret, or prescribe law. Further

the internal policies do not describe th e procedure or practice

requirements of an agency. See Department of Corrections v.

Adams , 458 So. 2d 354 (Fla. 1st DCA 1984). Entities that

contractually agree to provide services for a state agency do

not, by that agreement alone, transform into a state agency.

See Vey v. Bradford Union Guidance Clinic, Inc. , 399 So. 2d 1137

(Fla. 1st DCA 1981).

51. Chapter 394, Florida Statutes (2007), addresses mental

health issues and identifies a number of facilities that may be

deemed providers of services to pe rsons or patients who have

mental health needs. For example, Section 394.455(6), Florida

Statutes (2007), recognizes that a "community mental health

center or clinic" is a publicly funded, not - for - profit center

that contracts with the Department for the p rovision of

inpatient services. Such an entity is not an "agency" as that

term is used in Section 120.52(15), Florida Statutes (2007).

Clearly, the Legislature intended that residents at the FCCC

receive secure housing and treatment. That a private comp any

has been enlisted by contract to provide that care does not make

the ministerial functions of contract performance equivalent to

agency action. See Florida Department of Insurance and Florida

Windstorm Underwriting Association v. Florida Association o f

Insurance Agents and Professional Insurance Agents of Florida,

Inc. , 813 So. 2d 981 (Fla. 1st DCA 2002).

52. Finally, pursuant to Florida law, only a

"substantially affected person" may challenge the validity of a

"rule." The person seeking an admin istrative determination that

an agency rule is an invalid exercise of delegated legislative

authority must show a real and sufficiently immediate injury in

fact. See Lanoue v. Florida Department of Law Enforcement , 751

So. 2d 94 (Fla. 1st DCA 1999) and Wa rd v. Board of Trustees of

the Internal Improvement Trust Fund and Department of

Environmental Protection , 651 So. 2d 1236 (Fla. 4th DCA 1995).

The Petitioner in this cause did not present any evidence to

support an injury in fact. Further, the Petitione r failed to

present evident to support even the general terms of his

petition. At the minimum the Petitioner would have to establish

how the "rules" have impacted or might reasonably impact his

residency at the FCCC. The Petitioner failed to establish th e

barest of facts to support this claim.

53. The Petitioner is required to meet the burden of

proof, as to both the rule challenge and standing, by a

preponderance of the evidence. See Department of Health et al.

v. Merritt , 919 So. 2d 561 (Fla. 1st DC A 2006). The Petitioner

failed to meet this burden. This case was prolonged beyond the

thirty days contemplated by the statute in order to afford the

Petitioner with every opportunity to prepare for and present

evidence in support of his claims. It is c oncluded that such

efforts were reasonable under the circumstances of this case.

Moreover, had the FCCC made policies and information available

to the Petitioner in a timely fashion, the case could have been

more easily resolved. Residents at FCCC should be provided with

copies of the policies and guidelines that govern their

residency. Those policies are not, however, "rules" of the

Department. Therefore, for the reasons noted above it is

concluded that the internal policies of a private company

operat ing the FCCC are not agency statements constituting

unpromulgaged rules.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the instant case is hereby dismissed.

DONE AND ORDERED this 16th day of January 2008, in

Ta llahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative 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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of January, 2008.

COPIES FURNISHED :

Gregory D. Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204A

1317 Winewood Boulevard

Tallah assee, Florida 32399 - 0700

Larry Phillips, No. 990811

Florida Civil Commitment Center

13613 Southeast Highway 70

Arcadia, Florida 34266 - 7829

Thomas Alfred Panno, Qualified Representative

SVP No. 99 - 0565

Florida Civil Commitment Center

13613 Southeast Hi ghway 70

Arcadia, Florida 34266 - 7829

John J. Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert A. Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 205

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

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 rendition of the order to

be reviewed.