07-002602RU James R. Demick vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Friday, January 25, 2008.

Summary: Amended Petition is dismissed. The Division of Administrative Hearings lacks jurisdiction to consider internal policies of private contractor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. DEMICK, ) )

)

Petitioner, )

) Case No. 07-2602RU

vs. )

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

FINAL ORDER OF DISMISSAL

This matter came on for consideration on January 25, 2008,

without hearing, on Respondent, Department of Children and

Family Services' Motion to Dismiss First Amended Petition.

Having considered Respondent's motion, Petitioner's Response in

Opposition and Motion to Strike Respondent Department of

Children and Families' Motion to Dismiss First Amended

Complaint, and being otherwise fully advised,

The following Findings of Fact are made:

1. Respondent, pursuant to Section 394.9151, Florida

Statutes (2007), has contracted with private entities, The GEO

Group, Inc., and GEO Care, Inc. ("GEO"), to use and operate a

facility, Florida Civil Commitment Center, to comply with the

requirements of Chapter 395, Part V, Florida Statutes (2007)

(entitled "Involuntary Civil Commitment of Sexually Violent

Predators").

2. Petitioner, James R. Demick, is a person subject to

Chapter 395, Part V, Florida Statutes (2007), and is confined in

the Florida Civil Commitment Center.

3. Petitioner has filed a First Amended Petition of

Unpromulgated Rule Challenge as an Improper Exercise of

Delegated Legislative Authority in which he seeks a

determination that certain internal memoranda and policies of

GEO, including Policy No. F-24, the FCCC Resident Handbook, and

the C.A.R.E. Program, that are "imposed on Florida Civil

Commitment Center residents, are an improper exercise of

delegated legislative authority as de facto agency rules that

have not been adopted under proper rule making procedures of

section 120.54(1)(a)."

4. Subsection 120.52(1), Florida Statutes (2007), defines

"Agency" as:

(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, 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 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 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

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 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.

5. Subsection 120.52(15), Florida Statutes (2007), in

pertinent part, defines "Rule" as:

(15) "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 requirement 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.)

6. Subsections 120.56(1)(a) and (4)(a), Florida Statutes

(2007), read, in pertinent part:

(1)(a) 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.

* * *

(4)(a) Any person substantially affected by

an agency statement may seek an

administrative determination that the

statement violates s. 120(1)(a). (Emphasis

added.)

7. Section 394.930, Florida Statutes (2007), reads, as

follows:

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 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 inform a person that

he or she is being examined to determine

whether he or she is a sexually violent

predator under this part.

Based on the foregoing, the following Conclusions of Law

are made:

8. GEO is not an "agency" as defined in Subsection

120.52(1), Florida Statutes (2007). Florida Department of

Insurance v. Florida Association of Insurance Agents , 813 So. 2d

981 (Fla. 1st DCA 2002); Department of Corrections v. Adams ,

458 So. 2d 354 (Fla. 1st DCA 1984).

9. The internal memoranda and policies of GEO, including

Policy No. F-24, the FCCC Resident Handbook, and the C.A.R.E.

Program, are not agency rules as defined by Subsection

120.52(15), Florida Statutes, and are not subject to challenge

pursuant to Subsection 120.56(4), Florida Statutes.

10. The rule making authority extended to Respondent in

Section 394.930, Florida Statutes (2007), does not extend to the

internal memoranda and policies of a private contractor as

authorized by Section 394.9151, Florida Statutes.

It is, therefore,

ORDERED that the Division of Administrative Hearings lacks

jurisdiction to consider the internal operating policies of GEO

as defined and challenged in Petitioner's First Amended

Petition; therefore, the First Amended Petition is dismissed

with prejudice.

DONE AND ORDERED this 25th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 25th day of January, 2008.

COPIES FURNISHED :

Gregory D. Venz, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204A

Tallahassee, Florida 32399-0700

James R. Demick

Florida Civil Commitment Center

13613 Southeast Highway 70

Arcadia, Florida 34266-7829

Robert A. Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

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 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 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.