07-004432 Hillsborough County vs. Department Of Juvenile Justice Status: Closed Recommended Order on Monday, March 10, 2008.

Summary: Agency that assesses county for juvenile detention care based on calculation of utilization days without imput from the county must credit county for overcharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 07-4432

)

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 December 12, 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

Knight Building, Room 312V

2737 Centerview Drive

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 letter dated August 29, 2007, Respondent notified

Petitioner of proposed agency action to deny Petitioner's

protest of Respondent's calculation of utilization days in the

assessment imposed for the 2007-2008 fiscal year. Petitioner

requested an administrative hearing, and Respondent referred the

matter to DOAH to assign an ALJ to conduct the hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted three exhibits for admission into

evidence. Respondent presented the testimony of one witness and

submitted three exhibits.

After the hearing, Petitioner submitted one late-filed

exhibit on December 24, 2007. Respondent was suppose to file a

fourth exhibit after the hearing, but never filed the exhibit.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one-volume Transcript of the

hearing filed with DOAH on January 28, 2008. The ALJ granted

Respondent's unopposed request for extension of time to file

proposed recommended orders (PRO). Petitioner and Respondent

timely filed their PROs on February 11, 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 statutory cost sharing

requirements.

2. The statutory requirements for funding juvenile

detention in the state guide 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 after adjudication but "prior to" placement. 3

5. The term "placement" is not defined by statute or rule.

However, secure detention centers are legally unavailable to

circuit courts for post-disposition placement. Post-disposition

care of juveniles in a secure detention center is generally

limited to juveniles who are waiting for residential placement.

6. The trier-of-fact construes the reference to placement

in Subsection 985.03(18)(a) to mean residential placement.

Secure detention includes custody in a detention center for both

predisposition and post-disposition care. Predisposition care

occurs prior to adjudication or final disposition. Post-

disposition care occurs after adjudication or disposition but

prior to residential placement.

7. Post-disposition care also includes custody in a

detention center after final disposition but prior to release.

Although this type of post-disposition care comprises a small

proportion of total post-disposition care, references to

post-disposition care in this Recommended Order include care

after final disposition for: juveniles waiting for residential

placement and juveniles waiting for release.

8. Juveniles are not supposed to remain in detention

centers very long after final disposition 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.

9. Approximately 2,057 secure detention beds exist

statewide. The operating cost for each bed is the same whether

the bed is used for predisposition or post-disposition care.

10. The operating cost for a secure detention bed may

increase if the detention center exceeds capacity because of

overtime expenses, temporary staffing, and other temporary

costs. Although only two secure detention centers did not

exceed capacity at some time during the previous year, secure

detention utilization in the same year averaged approximately

89 percent of capacity.

11. The Legislature funds the cost of juvenile detention

care through an annual appropriation. Appropriations from 2002

forward have historically allocated approximately 11 percent of

the cost of detention care to Respondent and approximately

89 percent to the counties.

12. The total appropriation for the 2007-2008 fiscal year

was $125,327,667. The Legislature allocated $30,860,924 to the

state and $101,628,064 to the counties. Negative amounts in

certain categories brought the net appropriation to

$125,327,667.

13. The Legislature pays the state's share of juvenile

detention costs from general revenue. However, the

"appropriation" for the counties' share of detention costs is

actually an account payable. Pursuant to Subsection 985.686(6),

Petitioner must make monthly payments into a state trust fund

for its share of statewide predisposition detention costs.

14. Subsection 985.686(3) requires Respondent to develop

an accounts payable system to allocate to the counties the costs

of secure detention for predisposition care. Pursuant to

Subsection 985.686(5), Respondent administers the account

payable system through a system of prospective assessment and

retroactive reconciliation.

15. Prospective assessments at the outset of a year are

based on actual costs from the previous year. Subsection

985.686(5) requires Petitioner to pay the prospective assessment

monthly and requires Respondent to complete an annual

reconciliation at the end of the year to determine whether

actual costs during the year were more or less than the

prospective assessment. 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.

16. 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 or rule

expressly defines the phrase "period of time."

17. 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."

18. Other provisions in Rule 63G-1.004 prescribe the

methodology to be used in calculating Petitioner's share of the

costs for predisposition care. 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.

19. Petitioner disputes the methodology Respondent uses to

determine the amount Petitioner owes for predisposition care in

the County. However, that dispute is the subject of a companion

case identified by DOAH Case No. 07-4398 and is beyond the scope

of this proceeding.

20. The dispute in this proceeding is limited to

Respondent's determination of the service days that Respondent

allocated to Petitioner for predisposition care in the County.

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

21. Respondent defines service days to mean "utilization"

days. Utilization days are not synonymous with calendar days.

22. Utilization days correspond more closely to the number

of juveniles in secure detention. If for example, 10 juveniles

utilize one detention center during any part of a day,

10 utilization days have occurred during one calendar day.

23. A secure detention center may be utilized

simultaneously by juveniles in predisposition care and juveniles

in post-disposition care (dual-use occupancy). 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.

24. The 10 juveniles in the preceding example may not

occupy a detention center for an entire calendar day. The five

juveniles in predisposition care may occupy the center for only

part of a calendar day and five more juveniles may receive

predisposition care for the remainder of the day. In that

example, Respondent would allocate 10 utilization days to

Petitioner for predisposition care during that calendar day and

only five utilization days to the state for a total of

15 utilization days.

25. Respondent determined there were 709,251 utilization

days for pre and post-disposition care in the state for the year

in issue. Respondent allocated 579,409 utilization days to the

counties' predisposition care and 129,842 utilization days to

the state for post-disposition care. Respondent allocated

47,714 utilization days to Petitioner and, after reconciliation,

reduced that number to 47,214.

26. Petitioner claims the correct number of utilization

days is 31,008. Respondent allegedly misallocated 16,206

utilization days for predisposition care by Petitioner.

27. Respondent identifies the 16,206 utilization days in

nine categories. The categories and corresponding number of

days that Petitioner challenges are: contempt of court (327),

detention order (3,005), interstate compacts (1), pick up orders

(12,267), prosecution previously deferred (28), transfer from

another county awaiting commitment beds (444), violation of

after care (10), violation of community control (79), and

violation of probation (45).

28. Subsection 985.686(6) requires Respondent to calculate

the monthly assessment against Petitioner with input from the

County. Respondent allowed input from the counties during

rulemaking workshops but has thwarted virtually any input from

the County during the annual processes of calculating

assessments and reconciliation.

29. Respondent classifies each of the nine challenged

categories as predisposition care. However, the data that

Respondent provides to the County each year does not include

final disposition dates.

30. The omission of disposition dates from the information

that Respondent provides to Petitioner effectively thwarts the

County's ability to provide meaningful input into the

calculations that Respondent performs pursuant to Subsection

985.686(6). The absence of disposition dates precludes the

County from independently auditing, or challenging, the

assessments that Respondent calculates pursuant to Subsection

985.686(6). The absence of disposition dates also deprives the

trier-of-fact of a basis for resolving the dispute over the nine

categories of utilization days that Respondent determined were

predisposition care.

31. Respondent claims the allegation of misclassification

is a challenge to agency policy that is not subject to the due

process requirements prescribed in Chapter 120. To the

contrary, the allegation raises a disputed issue of fact over

the correct disposition date, and that issue is not infused with

agency policy or agency expertise.

32. The correct disposition date can be determined through

conventional means of proof, including public records. Although

Respondent presumably uses that information to determine a

disposition date, Respondent does not make the information

available to the County.

33. Even if a determination of the disposition date were

solely a policy issue, it is not exempt from the due process

requirements prescribed in Subsection 120.57(1). One of the

principal purposes of a proceeding conducted pursuant to

Subsection 120.57(1) (a 120.57 proceeding) is to encourage

responsible agency policymaking.

34. During this proceeding, Respondent did not explicate,

by conventional methods of proof, any intelligible standards

that guide the exercise of agency discretion in classifying the

nine challenged categories of utilization days as predisposition

days. Nor did Respondent explicate any evidential predicate to

support a finding that the classification is infused with agency

expertise and entitled to great deference. The only standards

that Respondent articulated during the evidentiary hearing is

that agency employees exercise discretion pursuant to

instructions from agency management.

35. Respondent also considers open charges against

juveniles as a basis for distinguishing predisposition

utilization days from post-disposition utilization days. If,

for example, a juvenile is in secure detention awaiting

placement after final disposition of one charge but has another

open charge, Respondent classifies that utilization day as

predisposition care.

36. The trier-of-fact finds that secure detention after

final disposition, but before residential placement for the

charge adjudicated, is post-dispositional care. The record does

not disclose how many, if any, of the 47,215 utilization days

allocated to Petitioner involve open charges.

37. Respondent did not explicate any intelligible

standards to guide the exercise of agency discretion in using

open charges as a basis for distinguishing predisposition

utilization days from post-disposition utilization days. Nor

did Respondent explicate an evidentiary basis to support a

finding that the relevant classification is infused with either

agency expertise or agency policy and entitled to deference.

38. Petitioner acknowledges that some of the nine

categories require final disposition before a juvenile can be

placed in secure detention prior to residential placement. For

example, data identification codes for offenses such as contempt

of court, detention orders, pick up orders, prosecution

previously deferred, violation of after care, violation of

community control, and violation of probation require a final

disposition. The omission of a final disposition date from the

data available to Petitioner deprives Petitioner of the ability

to provide input to Respondent to correct the assessments that

Respondent calculates pursuant to Subsection 985.686(6).

CONCLUSIONS OF LAW

39. 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.

40. 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.

41. Regardless of whether Respondent or Petitioner has the

burden of proof, a preponderance of the evidence shows that

Respondent did not calculate the proposed assessment with input

from Petitioner in violation of Subsection 985.686(6).

Respondent unilaterally calculates utilization days without

disclosing disposition dates to Petitioner and without

disclosing intelligible standards for the exercise of agency

discretion in distinguishing predisposition utilization days

from post-disposition utilization days.

42. The fact-finder must resolve conflicts in the evidence

and decide an issue one way or the other. Dunham v. Highlands

County School Board , 652 So. 2d 894, 896 (Fla. 2d DCA 1995);

Heifetz v. Department of Business Regulation, Division of

Alcoholic Beverages & Tobacco , 475 So. 2d 1277, 1281 (Fla. 1st

DCA 1985); Department of Professional Regulation v. Wagner , 405

So. 2d 471, 473 (Fla. 1st DCA 1981). The trier-of-fact resolved

the evidential conflict in favor of Petitioner. The fact-finder

is the sole arbiter of credibility. Bejarano v. State,

Department of Education, Division of Vocational Rehabilitation ,

901 So. 2d 891, 892 (Fla. 4th DCA 2005); Hoover, M.D. v. Agency

for Health Care Administration , 676 So. 2d 1380, 1384 (Fla. 3d

DCA 1996); Goss v. District School Board of St. Johns County ,

601 So. 2d 1232, 1234 (Fla. 5th DCA 1992).

43. The record evidence does not set forth a reasonable

basis for finding that an interpretation of terms such as

"disposition date," "period of time," "days," "service days,"

and "utilization days" require special agency insight or

expertise. Petitioner did not articulate any underlying

technical reasons for deference to agency expertise. Johnston,

M.D. v Department of Professional Regulation, Board of Medical

Examiners , 456 So. 2d 939, 943-944 (Fla. 1st DCA 1984).

44. Respondent's interpretation of the statutory

requirement in Subsection 985.686(6) to calculate assessments

with input from the County is clearly erroneous. The omission

of disposition dates in the information available to the County

deprives the County of any meaningful input within the meaning

of Subsection 985.686(6). The failure to explicate by

conventional methods of proof any intelligible standards to

guide agency discretion also deprives the County of meaningful

input in violation of Subsection 985.686(6). McDonald v. Dept.

of Banking and Finance , 346 So. 2d 569, 583 (Fla. 1st DCA 1977).

45. Respondent's determination that challenges to

disposition dates are challenges to agency policy is clearly

erroneous. Disposition dates are public record and not infused

with agency policy or expertise. Disposition dates are factual

issues within the exclusive province of the trier-of-fact.

46. Respondent does not provide the County with sufficient

information to determine what part, if any, of the 15,599

utilization days classified as predisposition care for pick-up

orders (12,267), contempt of court (327), and detention orders

(3,005) are duplicative. Subsection 985.101, for example,

authorizes a court to issue a pick-up order when a juvenile

fails to appear in court. A detention order for secure

detention pursuant to a pick-up order may not exceed 72 hours

unless the court conducts a contempt proceeding, pursuant to the

due process requirements prescribed in Section 985.037, and

finds the juvenile presents a substantial risk of not appearing

at a subsequent hearing. A.K. v. Dobuler , 951 So. 2d 989, 991

(Fla. 3d DCA 2007); A.M.W. v. Portsey , 714 So. 2d 1170 (Fla. 2d

DCA 1998); W.N. v. Fryer , 572 So. 2d 24 (Fla. 4th DCA 1990).

Any utilization after 72 hours must be pursuant to a final

disposition of the pick-up order, contempt of court, or

detention order and is properly classified as post-disposition

care.

47. If challenges to disposition dates were challenges to

agency policy, Respondent incorrectly concludes that challenges

to agency policy are beyond the scope of a 120.57 proceeding. 4

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.

48. An ALJ conducting 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.

[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.

49. The requirements for responsible agency policymaking

are not defined by statute, rule, or case law. At a minimum,

however, an ALJ should not recommend that the agency issue a

final order which is subject to mandatory remand pursuant to

Subsection 120.68(7).

50. Subsection 1120.68(7), in relevant part, requires a

reviewing court to remand a final order of an agency if the

exercise of agency discretion violates a constitutional or

statutory provision. To avoid remand, the exercise of agency

discretion sanctioned in the final order must not violate the

separation of powers doctrine. Fla. Const. , Art. II, § 3.

51. The separation of powers doctrine prohibits an

executive agency, including either Respondent or DOAH, from

exercising legislative power to modify, enlarge, or amend a

statute. 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. 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).

52. 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 and DOAH, 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.

53. 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)). If Rule 63G-1.004 were deemed to

authorize the exercise of agency discretion at issue in this

proceeding, a literal conflict between the Rule and a statute

must be resolved in favor of the statute in order to preserve

the validity of the Rule. 5 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 .

54. 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).

An agency cannot implement by non-rule policy agency discretion

that the separation of powers doctrine prohibits the agency from

implementing by rule.

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 utilization days determined in accordance with this

Recommended Order and meaningful input from the County.

DONE AND ENTERED this 10th 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 10th 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/ 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).

5/ 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 32399-1300

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.