07-004398 Hillsborough County vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, March 7, 2008.

Summary: Agency that assesses county for juvenile detention care based on methodology different than methodology prescribed by rule must credit county for overcharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 07-4398

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on November 29, 2007, in Tampa, Florida.

APPEARANCES

For Petitioner: Stephen M. Todd, Esquire

Hillsborough County Attorney’s Office

Post Office Box 1110

Tampa, Florida 33601

For Respondent: Brian Berkowitz, Esquire

Department of Juvenile Justice

2737 Centerview Drive, Room 312V

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue is whether Respondent assessed Petitioner for

secure juvenile detention care for the 2007-2008 fiscal year in a

manner that implements Section 985.686, Florida Statutes (2007),

and Florida Administrative Code Rule 63G-1. 1

PRELIMINARY STATEMENT

By letters dated June 6 and September 6, 2007, Respondent

notified Petitioner of the per diem rate that Respondent proposed

to charge Petitioner for secure juvenile detention care for the

2007-2008 fiscal year. Petitioner requested an administrative

hearing to contest the proposed agency action, and Respondent

referred the matter to DOAH to assign an ALJ to conduct the

hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted five exhibits for admission into

evidence. Respondent presented the testimony of three witnesses

and submitted five exhibits.

Respondent also filed two late-filed exhibits on

January 16, 2008. With leave from the ALJ, Petitioner took the

deposition testimony of one of Respondent's witnesses. The

subject of the deposition pertains to the two late-filed exhibits

filed by Respondent. The Transcript of the deposition testimony

was filed on January 15, 2008.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the two-volume Transcript of the

hearing filed with DOAH on January 28, 2008. Petitioner and

Respondent timely filed their Proposed Recommended Orders on

February 1, 2008.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

administering the cost sharing requirements in Section 985.686

for juvenile detention care. Petitioner is a non-fiscally

constrained county 2 subject to the cost sharing requirements.

2. The relevant statutory backdrop affects the findings in

this proceeding. Subsection 985.686(1) requires Petitioner and

Respondent to share the costs of "financial support" for

"detention care" for juveniles who reside in Hillsborough County,

Florida (the County), and are held in detention centers operated

by Respondent.

3. Subsection 985.686(3) requires Petitioner to pay the

costs of detention care "for the period of time" prior to final

court disposition (predisposition care). Respondent must pay the

costs of detention care on or after final court disposition

(post-disposition care).

4. Detention care is defined in Subsection 985.686(2)(a) to

mean secure detention. Secure detention is defined in Subsection

985.03(18)(a), for the purposes of Chapter 985, to include

custody "prior to" adjudication or disposition as well as custody

"prior to" placement. 3

5. Detention centers are legally unavailable to circuit

courts for post-disposition placement (residential placement).

Post-disposition care of juveniles in detention centers is

limited to juveniles who are waiting for residential placement.

6. The statutory reference in Subsection 985.03(18)(a) to

placement is construed in this proceeding to mean residential

placement. Thus, secure detention means custody in a detention

center for both predisposition care prior to adjudication or

final court disposition, and post-disposition care after

adjudication or disposition but prior to residential placement.

7. A literal reading of Subsections 985.03(18)(a),

985.686(1), and 985.686(2)(a) may foster ambiguity, at least for

a stranger to the workings of juvenile detention. If Subsection

985.686(1) requires Petitioner and Respondent to share the costs

of secure detention and secure detention includes custody prior

to adjudication or disposition, a literal interpretation arguably

could require Respondent to share the costs of secure detention

prior to adjudication or final disposition.

8. Factual findings in this proceeding are not based on a

literal interpretation of the definition of secure detention in

Subsections 985.686(2)(a) and 985.03(18)(a). Rather, the

findings are based on an interpretation of secure detention that

is consistent with the statutory requirement in Subsection

985.686(3) for Petitioner to pay the costs of secure detention

during predisposition care and for Respondent to pay the costs of

secure detention during post-disposition care.

9. The annual legislative "appropriation" for the counties'

share of detention care is actually an account payable by the

counties rather than an appropriation of funds. For the 2007-

2008 fiscal year, 4 the legislature "appropriated" a total of

$125,327,667.00 for detention care. However, only $30,860,924.00

of the total amount was actually appropriated from general

revenue.

10. The general revenue funds are appropriated for costs

that Respondent must pay, including amounts for fiscally

constrained counties. The Legislature identified $101,628,064.00

of the total appropriation as the counties' aggregate share of

detention costs. Negative entries in the appropriation reduce

the total amount to $125,327,667.00

11. The practical realities of juvenile detention care

complicate the allocation of costs between predisposition and

post-disposition care. Juveniles are not supposed to remain in

detention centers very long while they wait for residential

placement. However, juveniles with exceptional needs, such as

mental health needs, may remain in detention centers for a longer

period of time due to the limited availability of appropriate

residential placement facilities.

12. A room in a detention facility may be occupied

simultaneously by juveniles in predisposition care and juveniles

in post-disposition care waiting for residential placement (dual-

use occupancy). Dual-use occupancy complicates the calculation

of shared costs between the counties and the state.

13. Subsection 985.686(3) requires Respondent to develop an

accounts payable system to allocate the costs of secure detention

for predisposition care. Respondent administers the statutory

cost sharing requirements through a prospective assessment and

retroactive reconciliation system.

14. Prospective assessments for each fiscal year are based

on actual costs during the previous year. Petitioner pays the

prospective assessment monthly, and, at the end of each fiscal

year, Respondent performs an annual reconciliation to determine

whether actual costs during the current fiscal year were more or

less than the prospective assessment at the beginning of the

fiscal year. Sometime after the end of each fiscal year,

Respondent either credits or debits Petitioner for any

differences between the prospective assessment and actual costs

determined in the annual reconciliation.

15. Subsection 985.686(3) requires Petitioner to pay for

the costs of secure detention in the County for the "period of

time" juveniles are in predisposition care. No statute defines

the phrase "period of time."

16. Subsection 985.686(10) authorizes Respondent to adopt

rules to administer Section 985.686. Rule 63G-1.004(1)(c)

implicitly defines the statutory reference to a "period of time"

in predisposition care to mean "service days." Rule 63G-1.004

also prescribes the methodology to be used in calculating

Petitioner's share of the costs for secure detention during the

period of time required for predisposition care in the County.

17. Respondent must first identify all juveniles in

predisposition care based upon usage during the preceding fiscal

year. Second, Respondent must match each placement record with

the corresponding identification code. Third, Respondent must

calculate the "service days" in predisposition care. Finally,

Respondent must divide the number of "service days" Petitioner

used for predisposition care in the County by the service days

used by all counties to determine the percentage of the counties'

costs for predisposition care that Petitioner owes.

18. The term "service days" is not defined by statute or

rule. Respondent defines service days to mean "utilization"

days. If, for example, 10 individuals occupy one detention room

in a facility during any part of a day, 10 utilization days have

occurred during one calendar day.

19. Respondent uses utilization days to calculate the

statutory period of time for predisposition care and

post-disposition care. If the 10 utilization days in the

preceding example were to include equal dual-use occupancy,

Respondent would count five utilization days for predisposition

care and five utilization days for post-disposition care.

20. Petitioner disputes the utilization days that

Respondent calculated. However, that dispute is the subject of a

companion case identified by DOAH Case No. 07-4432 and is beyond

the scope of this proceeding.

21. Respondent determined there were 709,251 utilization

days for pre and post-disposition care. The total consisted of

579,409 utilization days for the counties' predisposition care

and 129,842 utilization days for post-disposition care.

Respondent allocated 47,714 utilization days to Petitioner.

22. Rule 63G-1.004(2) requires Respondent to divide the

47,714 utilization days allocated to Petitioner by the 579,409

utilization days allocated to all counties. The mathematical

quotient of that calculation is .08234.

23. The rule requires Respondent to multiply the cost of

detention by 8.234 percent. The "cost of detention" means the

counties' cost of detention in the amount of $101,628,064.00.

The mathematical product of multiplying $101,628,064.00,

by .08234 is $8,368,054.79.

24. Respondent exercised discretion to adopt a methodology

that is inconsistent with the methodology prescribed by rule, in

violation of Subsection 120.68(7)(e)2. Respondent defined the

cost of detention to include the total appropriation of

$125,327,667.00. Respondent is legally required to pay

$30,860,924.00 of the $125,327,667.00, including $6,329,328.00

allocable to fiscally constrained counties.

25. Respondent divided the total appropriation of

$125,327,667.00 by 709,251 utilization days to arrive at a per

diem rate of $176.70 for all detention care. Respondent then

multiplied the per diem rate by Petitioner's 47,714 utilization

days and proposed a gross assessment in the amount of

$8,400,165.73. 5 Respondent reduced the gross assessment after

adjustments and proposed a net assessment in the amount of

$8,320,440.73, which Petitioner paid. 6

26. The actual gross assessment of $8,400,165.73 exceeded

the authorized gross assessment of $8,368,054.79 by $32,110.94.

Any adjustments required to determine a net assessment should be

made to the authorized gross assessment.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties and subject

matter in this proceeding. §§ 120.569 and 120.57(1). DOAH

provided the parties with adequate notice of the final hearing.

28. The burden of proof is on the party asserting the

affirmative of an issue. Florida Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

Balino v. Department of Health and Rehabilitative Services ,

348 So. 2d 349 (Fla. 1st DCA 1977). The proposed agency action

is to assess Petitioner for predisposition care in the County.

Respondent asserts the affirmative of that issue and must prove

by a preponderance of the evidence that the proposed assessment

should become final agency action.

29. Regardless of whether Respondent or Petitioner has the

burden of proof, a preponderance of the evidence shows that the

gross assessment proposed by Respondent overcharges Petitioner

approximately $32,110.94. Respondent determined the gross

assessment using a methodology that was inconsistent, within the

meaning of Subsection 120.68(7)(e)2., with the methodology

prescribed in Rule 63G-1.004.

30. An agency's deviation from a promulgated rule may

itself be a rule if the deviation satisfies the definition of a

rule in Subsection 120.52(15). If the deviation does not

satisfy the statutory definition of a rule, the deviation is

non-rule policy. 7

31. If Respondent's deviation from its rule were

determined to be an un-promulgated rule, the un-promulgated rule

would be unenforceable in this proceeding unless Respondent

showed that the rule satisfied the requirements of Subsection

120.57(1)(e). If the deviation were found to be non-rule

policy, Respondent would be required to “fully and skillfully

expound its nonrule policies by conventional proof methods.”

McDonald v. Dept. of Banking and Finance , 346 So.2d 569, 583

(Fla. 1st DCA 1977).

32. It is unnecessary to determine whether the methodology

Respondent used to calculate the proposed assessment is an un-

promulgated rule or non-rule policy. The exercise of agency

discretion in the form of either an un-promulgated rule or

non-rule policy must be constitutional within the meaning of

Subsection 120.68(7)(e)4. 8

33. Agency rules are entitled to a presumption of

constitutional validity. Department of Children and Families v.

R.H. , 819 So. 2d 858, 860 (Fla. 5th DCA 2002). A literal

conflict between a rule and a statute must be resolved in favor

of the statute in order to preserve the validity of the rule.

Willette v. Air Products and Bassett and Department of Labor and

Employment Security, Division of Workers' Compensation , 700 So.

2d 397, 399 (Fla. 1st DCA 1997). In Willette , the court wrote:

Executive branch rulemaking is authorized in

furtherance of, not in opposition to,

legislative policy. Just as a court cannot

give effect to a statute (or administrative

rule) in a manner repugnant to a

constitutional provision, so a duly

promulgated rule, although "presumptively

valid until invalidated in a section 120.56

rule challenge [citations omitted]," must

give way in judicial proceedings to any

contradictory statute that applies.

Id .

34. If the methodology prescribed in Rule 63G-1.004(2) is a

presumptively valid implementation of Section 985.686, the use of

a different methodology by Respondent would effectively modify,

enlarge or amend the statute implemented within the meaning of

Subsections 120.52(8) and 120.57(1)(e). The separation of powers

doctrine prohibits an executive agency such as Respondent from

exercising legislative power to modify, enlarge, or amend a

statute.

35. The separation of powers doctrine encompasses two

prohibitions. No branch of government may encroach upon the

powers of another, and no branch may delegate its power to

another branch. Fla. Const. , Art. II, § 3. The second

prohibition is the non-delegation doctrine. Chiles v. Children

A, B, C, D, E, and F , 589 So. 2d 260, 264-266 (Fla. 1991).

36. The non-delegation doctrine prohibits the Legislature

from delegating legislative authority to an agency of the

executive branch. Chiles , 589 So. 2d at 264-266. The

administration of legislative programs by executive agencies,

including Respondent, must be pursuant to minimal standards and

guidelines ascertainable by reference to statutory terms enacted

by the Legislature and implemented in the agency's rules.

Chiles , 589 So. 2d at 264-266.

37. The Legislature may authorize administrative agencies

to interpret, but never to alter statutes. Carver v. State of

Florida, Division of Retirement , 848 So. 2d 1203, 1206 (Fla. 1st

DCA 2003) (citing Cortes v. State Board of Regents , 655 So. 2d

132, 136 (Fla. 1st DCA 1995)). An administrative agency has

statutory authority to adopt only those rules that implement or

interpret the specific powers and duties granted by the enabling

statute. § 120.52(8).

38. An ALJ conducting a proceeding pursuant to Subsection

120.57(1) (a 120.57 proceeding) is not limited to making

findings of fact and conclusions of law. The ALJ has the

additional duty of serving the public interest by encouraging

responsible agency policymaking. Department of General Services

v. Willis , 344 So. 2d 580, 592 (Fla. 1st DCA 1977). In Willis

the court explained:

We are accustomed to think that the

principal use of hearings is to develop

records for "adjudicatory" or "quasi-

judicial" decisions. (citations omitted)

That was the limited role of administrative

hearings in years past, when the "universe

of administrative law was hierarchical, with

the judiciary at its apex." (Footnote

omitted) [The current] administrative

process . . . recognizes that a hearing

independently serves the public interest by

providing a forum to expose, inform and

challenge agency policy and discretion.

Willis , 344 So. 2d at 591.

39. The additional duty of encouraging responsible agency

policymaking is not limited to findings of fact and conclusions

of law.

[T]he [ALJ] does not merely find the facts

and supply the law, as would a court. The

[ALJ] "independently serves the public

interest by providing a forum to expose,

inform and challenge agency policy and

discretion." (Citations omitted)

McDonald , 346 So. 2d at 580-583.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a final order assessing

Petitioner for the costs of predisposition care in the County

using the methodology prescribed by rule, including costs of

detention in the aggregate amount of $101,628,064.00, and

crediting Petitioner for the amount of any overpayment.

DONE AND ENTERED this 7th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of March, 2008.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007) unless otherwise stated. References to

rules are to rules promulgated in the Florida Administrative

Code in effect on the date of the hearing.

2/ A non-fiscally constrained county is one that is not a

fiscally constrained county defined in Subsection 985.686(2)(b)

as a county within a rural area of critical economic concern.

3/ Rule 63G-1.002(6) defines secure detention in substantially

the same manner as Subsection 985.03(18)(a).

4/ References to numbers of days are to numbers available for the

2005-2006 fiscal year. References to dollar amounts are to

appropriations for the 2007-2008 fiscal year unless otherwise

stated. Respondent determines a per diem rate to be charged by

dividing the 2007-2008 appropriations by the 2005-2006

utilization numbers.

5/ The mathematical product of multiplying 47,714 by a per diem

rate of $176.70 is $8,431,063,80. Respondent subsequently

reduced the utilization days to 47,214. The product of $176.70

multiplied by 47,214 is $8,342,713.80. However, Respondent

assessed Petitioner for $8,400,165.73, rather than $8,342,713.80,

and later credited Petitioner for $79,725.00, resulting in a net

assessment of $8,320,440.73.

6/ If Respondent were to have divided the counties' cost of

detention of $101,628,064.00 by the counties' total utilization

days of 579,409, the per diem rate would have been $175.40. The

product of multiplying that per diem rate by 47,714 utilization

days allocable to Petitioner would have resulted in a gross

assessment against Petitioner in the amount of $8,369,012.99. If

the reference in Rule 63G-1.004(2) to the "cost of detention

care" were found to mean the $125,327,667.00 that the Legislature

appropriated for the combined costs of state and county detention

care, the 47,714 utilization days allocable to Petitioner

reasonably should be divided by the 709,251 utilization days for

all detention care, including predisposition and post-disposition

care. The mathematical quotient would be .06727. The

mathematical product of multiplying $125,327,667.00 by .06727 is

$8,431,266.65; which exceeds $8,431,063.80 by $202.92.

7/ Agency policy is non-rule policy if it does not satisfy the

definition of a rule in Subsection 120.52(15). Agency policy is

an un-adopted rule, within the meaning of Subsections 120.56(4)

and 120.57(1)(e), if it satisfies the definition of a rule in

Subsection 120.52(15) but has not been promulgated in accordance

with the rulemaking requirements prescribed in Section 120.54 (an

un-promulgated rule). See , "The Scarecrow in McDonald's Farm: A

Fairy Tale About Administrative Law," Fla. Bar. J. , No. 3 (March

1999).

8/ Petitioner does not allege that Rule 63G-1.004 amends,

enlarges, or modifies Section 985.686 within the meaning of

Subsections 120.52(8), 120.56(3), and 120.68(7)(e)4. The issue

is whether the methodology adopted by Respondent either deviates

from the rule or interprets the rule in a manner that effectively

amends the rule.

COPIES FURNISHED :

Stephen M. Todd, Esquire

Hillsborough County Attorney’s Office

Post Office Box 1110

Tampa, Florida 33601

Brian Berkowitz, Esquire

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Jennifer Parker, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.