09-004340 Hillsborough County, Florida vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, December 18, 2009.

Summary: Respondent has no legal authority to issue multiple amended annual reconciliation statements for the same fiscal year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 09-4340

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 15, 2009, a formal administrative hearing was

conducted in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

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 in this case is whether the Department of

Juvenile Justice (Respondent) properly assessed secure juvenile

detention center costs charged to Hillsborough County, Florida

(Petitioner), pursuant to Section 985.686, Florida Statutes

(2009).

PRELIMINARY STATEMENT

On March 17, 2009, the Petitioner filed an "Initiation of

Proceedings Pursuant to 28-106.201, F.A.C." with the Division of

Administrative Hearings (DOAH), asserting that the Respondent

improperly calculated utilization days for the 2007-2008 fiscal

year. DOAH issued an Initial Order in the case and assigned the

matter to the undersigned Administrative Law Judge. The parties

responded to the Initial Order, and the dispute was scheduled

for hearing.

At the hearing, the Petitioner presented the testimony of

two witnesses and had four exhibits admitted into evidence. The

Respondent presented no testimony or exhibits.

A Transcript of the hearing was filed on November 2, 2009.

On November 23, 2009, the Respondent filed an Unopposed Motion

for Extension of Time to File Proposed Recommended Order, which

was granted in an Order issued on November 24, 2009. Both

parties filed Proposed Recommended Orders on November 25, 2009,

that have been considered in the preparation of this Recommended

Order.

The Joint Pre-hearing Stipulation filed on October 7, 2009,

contained a statement of admitted facts that have been

incorporated in this Recommended Order.

Although the case initially focused on the resolution of

the Petitioner's objections to the Respondent's allocation of

detention costs, neither party presented evidence at the hearing

related to the specific objections. It was apparent, based on

argument presented at the hearing and as set forth in the

Proposed Recommended Orders, that the disputed issue for

resolution in this case was the Respondent's issuance of

multiple annual reconciliation statements and that the

Petitioner had no objection to the annual reconciliation

statement dated January 30, 2009.

FINDINGS OF FACT

1. This dispute involves costs charged to the Petitioner

for juveniles residing in Hillsborough County and detained in

centers operated by the Respondent during the 2007-2008 fiscal

year.

2. The Petitioner is required by statute to pay the cost

of "pre-disposition" secure detention for such juveniles. The

Respondent is required by statute to pay the cost of "post-

disposition" secure detention for such juveniles. The

significance of "disposition" is not relevant to this

proceeding.

3. The Respondent also pays the cost for secure detention

for juveniles residing in "fiscally constrained counties" and

for juveniles with residence addresses outside the State of

Florida.

4. Responsible counties are prospectively assessed for

projected costs in advance of each fiscal year, based on actual

experience in the preceding fiscal year.

5. By statute, the Respondent is required to determine on

a quarterly basis whether the funds being remitted by counties

are sufficient to meet their obligations under the statute.

Counties may raise objections to the quarterly report, but the

statute prohibits any adjustments on the basis of the quarterly

report.

6. The Respondent is also required by statute to reconcile

differences between estimated costs and actual costs at the end

of the state fiscal year. The statute provides that adjustments

cannot be made until the annual reconciliation occurs.

7. By administrative rule, an annual reconciliation

statement must be issued on or before January 31 of each year

reflecting the estimated and actual costs applicable for the

preceding fiscal year.

8. On January 30, 2009, the Respondent issued an annual

reconciliation to the Petitioner that assigned 37,528 pre-

disposition utilization days to the Petitioner and stated that

the Petitioner was due a credit of $460,039.83. The Respondent

issued an invoice reflecting the stated credit.

9. On February 24, 2009, the Respondent issued a second

annual reconciliation to the Petitioner that increased the

Petitioner's assigned pre-disposition utilization days to 37,549

and decreased the credit to $455,579.28. The Respondent issued

an invoice reflecting the revised credit.

10. On March 18, 2009, the Petitioner directed a letter to

the Respondent requesting that the two reconciliations be

clarified. The Respondent did not respond to the request.

11. On May 1, 2009, the Petitioner directed a letter to

the Respondent disputing a portion of the assigned utilization

days. The Respondent did not respond at that time, but on

May 14, 2009, the Respondent issued a third annual

reconciliation to the Petitioner that increased the Petitioner's

assigned pre-disposition utilization days to 37,661 and

decreased the credit to $431,789.64.

12. On June 4, 2009, the Respondent issued a fourth annual

reconciliation to the Petitioner that decreased the Petitioner's

assigned pre-disposition utilization days to 34,163 and

decreased the credit to $321,677.91.

13. On July 17, 2009, the Respondent replied to the

Petitioner's letter of May 1, 2009 (wherein the Petitioner

disputed a portion of the assigned utilization days), by

advising the Petitioner to file an administrative challenge to

the allocation.

14. On August 7, 2009, the Petitioner issued a letter to

the Respondent objecting to the assigned pre-disposition

utilization days, as well as the calculation of the per diem

rate. The Respondent did not respond to the letter.

15. Neither party offered evidence at the hearing related

to the accuracy of allocated utilization days or the per diem

rate.

CONCLUSIONS OF LAW

16. As set forth herein, the Division of Administrative

Hearings has jurisdiction over the parties to and subject matter

of this proceeding.

17. The Respondent has the burden of establishing that the

annual reconciliation is supported by a preponderance of the

evidence. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981). A

“preponderance” of the evidence means the greater weight of the

evidence. See Fireman's Fund Indemnity Co. v. Perry , 5 So. 2d

862 (Fla. 1942).

18. Section 985.686, Florida Statutes (2009), provides in

relevant part as follows:

985.686 Shared county and state

responsibility for juvenile detention.--

(1) It is the policy of this state that the

state and the counties have a joint

obligation, as provided in this section, to

contribute to the financial support of the

detention care provided for juveniles.

(2) As used in this section, the term:

(a) "Detention care" means secure

detention.

(b) "Fiscally constrained county" means a

county within a rural area of critical

economic concern as designated by the

Governor pursuant to s. 288.0656 or each

county for which the value of a mill will

raise no more than $5 million in revenue,

based on the certified school taxable value

certified pursuant to s. 1011.62(4)(a)1.a.,

from the previous July 1.

(3) Each county shall pay the costs of

providing detention care , exclusive of the

costs of any preadjudicatory nonmedical

educational or therapeutic services and $2.5

million provided for additional medical and

mental health care at the detention centers,

for juveniles for the period of time prior

to final court disposition . The department

shall develop an accounts payable system to

allocate costs that are payable by the

counties.

* * *

(5) Each county shall incorporate into its

annual county budget sufficient funds to pay

its costs of detention care for juveniles

who reside in that county for the period of

time prior to final court disposition. This

amount shall be based upon the prior use of

secure detention for juveniles who are

residents of that county, as calculated by

the department. Each county shall pay the

estimated costs at the beginning of each

month. Any difference between the estimated

costs and actual costs shall be reconciled

at the end of the state fiscal year.

* * *

(7) The Department of Juvenile Justice

shall determine each quarter whether the

counties of this state are remitting to the

department their share of the costs of

detention as required by this section .

* * *

(10) The department may adopt rules to

administer this section. (Emphasis

supplied)

19. By rule, the Respondent has implemented a system of

quarterly reports and annual reconciliation statements to assess

costs attributable to responsible counties.

20. Florida Administrative Code Rule 63G-1.009, that sets

forth a quarterly reporting and dispute resolution system,

provides as follows:

Dispute Resolution and Collection.

(1) The quarterly reporting marks the point

at which a county may take issue with the

charges referenced in the report, but it

cannot be the basis for withholding payment.

Adjustments, including those necessitated by

dispute resolution, cannot be made until the

annual reconciliation.

(2) Disputes based upon a quarterly report,

such as those relating to the residence of

served youth or the number of chargeable

service days, must be brought within 90 days

of receipt of the quarterly report to which

the dispute pertains.

(3) General objections, such as those

seeking confirmation of a youth’s county of

residence, will be summarily denied.

Disputes involving a detained youth’s county

of residence must include one or more of the

following indicia of specificity:

(a) An alternative address asserted to be

correct;

(b) Supporting documentation, and;

(c) An explanation of the basis for the

dispute on form 63G-1-1.

(4) Disputes must be raised by means of

form 63G-1-1, and sent by certified mail to

the Department’s Bureau of Finance and

Accounting at 2737 Centerview Drive, Suite

212, Tallahassee, Florida 32399-3100.

Accompanying documentation in support of the

county’s position may be included.

(5) Form 63G-1-1 (May 2006), “Notice of

Disputed Detention Charge,” is incorporated

by reference and is available from the

Bureau of Finance and Accounting in

Tallahassee.

(6) The Department’s response constitutes

final agency action and may be challenged

through the process available in Chapter

120, F.S. (Emphasis supplied)

21. Essentially the rule requires that a county file its

objections to a quarterly report within 90 days of receipt of

the report, that the Respondent respond to the objections, and

that any challenge to the response proceed through the filing of

a request for hearing under the Administrative Procedures Act.

22. The annual reconciliation process is established at

Florida Administrative Code Rule 63G-1.008, which provides as

follows:

Annual Reconciliation.

(1) On or before January 31 of each year,

the Department shall provide a

reconciliation statement to each paying

county. The statement shall reflect the

difference between the estimated costs paid

by the county during the past fiscal year

and the actual cost of the county’s usage

during that period.

(2) If a county’s actual usage is found to

have exceeded the amount paid during the

fiscal year, the county will be invoiced for

the excess usage. The invoice will

accompany the reconciliation statement, and

shall be payable on or before April 1.

(3) If a county’s actual usage was less

than the estimated amounts paid during the

fiscal year, the county will be credited for

its excess payments. Credit will be

reflected in the April billing, which is

mailed on March 1, and will carry forward as

necessary. (Emphasis supplied)

23. Neither the statute nor the rule provides a definition

for "annual." The Merriam Webster's Dictionary defines "annual"

as "occurring or happening every year or once a year."

24. There is no authority in either statute or rule that

provides the Respondent with the authority to issue multiple

annual reconciliation statements to a county. The Respondent is

required by Florida Administrative Code Rule 63G-1.008 to issue

an annual reconciliation statement on or before January 31 of

each year. The rule clearly requires that March bills (payable

in April) reflect any excess payment credit due to a county and

that any additional assessment related to excess usage must be

paid by a county on or before the following April 1.

25. Absent any evidence to the contrary, the annual

reconciliation statement issued pursuant to the rule is final

unless successfully challenged in an administrative proceeding.

While Florida Administrative Code Rule 63G-1.008 does not

specifically reference an opportunity to challenge the annual

reconciliation, Section 120.569, Florida Statutes (2009), is

generally applicable in all proceedings where the substantial

interests of a party are determined by an agency and provides

for the filing of a petition for hearing with the agency.

Subsection 120.569(2)(a), Florida Statutes (2009), provides as

follows:

Except for any proceeding conducted as

prescribed in s. 120.56, a petition or

request for a hearing under this section

shall be filed with the agency . If the

agency requests an administrative law judge

from the division, it shall so notify the

division within 15 days after receipt of the

petition or request. A request for a

hearing shall be granted or denied within 15

days after receipt. On the request of any

agency, the division shall assign an

administrative law judge with due regard to

the expertise required for the particular

matter. The referring agency shall take no

further action with respect to a proceeding

under s. 120.57(1), except as a party

litigant, as long as the division has

jurisdiction over the proceeding under s.

120.57(1). Any party may request the

disqualification of the administrative law

judge by filing an affidavit with the

division prior to the taking of evidence at

a hearing, stating the grounds with

particularity.

26. In this case, the Petitioner's request for hearing

should have been filed with the Respondent. The Respondent

should have determined whether there were material facts in

dispute, and, if so, forwarded the request to DOAH for a hearing

under the provisions of Subsection 120.57(1), Florida Statutes

(2009). If there were no material facts in dispute, the dispute

should have proceeded to a hearing under Subsection 120.57(2),

Florida Statutes (2009), or the parties should have explicitly

waived the provisions of Subsection 120.57(2), Florida Statutes

(2009), and thereafter forwarded the case to DOAH. See

§ 120.569(1), Fla. Stat. (2009).

27. Despite the provisions of Section 120.569, Florida

Statutes (2009), the Petitioner filed the challenge directly

with DOAH on March 17, 2009. DOAH issued an Initial Order and

assigned the matter to an Administrative Law Judge. The parties

responded to the Initial Order, and the dispute was scheduled

for hearing, with neither party noting the non-compliance with

Section 120.569, Florida Statutes (2009). Accordingly, DOAH

conducted a formal hearing in the case and has issued this

Recommended Order.

28. At the hearing, the parties suggested that the

issuance of multiple annual reconciliation statements is the

result of the resolution of objections filed by counties in

response to the annual reconciliation statement. The resolution

of such objections can result in additional costs allocated to

another county. There was no evidence that counties potentially

affected by resolution of another county's objections receive

any notice of the objections or the potential resolution. The

county whose allocated costs increase through the resolution of

another county's objections apparently receives no notice until

the Respondent issues another annual reconciliation statement

for the same fiscal period as a previous reconciliation

statement.

29. Piecemeal dispute resolution that affects the

substantial interests of counties not participating in the

resolution appears to be contrary to Section 120.569, Florida

Statutes (2009). The practice delays the realization of

finality in the cost allocation process as each county, affected

in turn by the resolution of another county's objections, files

objections of its own, and so on.

30. Perhaps the most efficient resolution of the situation

would be for the Respondent to require, as set forth at

Section 120.569, Florida Statutes (2009), that protests to

quarterly reports and annual reconciliations be filed with the

agency. Such protests could be forwarded, where appropriate, to

DOAH. Related protests could be consolidated pursuant to

Florida Administrative Code Rule 28-106.108. Where the

resolution of the proceedings could affect the interests of a

county not a party to the proceeding, the county could be

provided an opportunity to participate in the proceeding (and be

precluded from later objection) pursuant to Florida

Administrative Code Rule 28-106.109.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Respondent issue a final order

adopting the annual reconciliation dated January 30, 2009.

DONE AND ENTERED this 18th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 2009.

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.