12-000891RX Okaloosa County, Florida, And Nassau County, Florida vs. Department Of Juvenile Justice Status: Closed Recommended Order on Tuesday, July 17, 2012.

Summary: Department of Juvenile Justice's rules governing cost sharing between state and counties for secure juvenile detention are invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA COUNTY, FLORIDA, AND )

NASSAU COUNTY, FLORIDA, )

)

Petitioners, )

)

and )

)

BAY COUNTY AND PINELLAS COUNTY , )

)

Intervenor s , )

)

vs. ) Case No. 12 - 0891RX

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

)

and )

)

MIAMI - DADE COUNTY, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on April 23, 2012, in Tallahassee, Florida , before W. David

Watkins, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Gregory T. Stewart , Esq uire

Carly J. Schrader , Esq uire

Lynn M. Hoshihara , Esq uire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, F lor ida 32308

For Intervenors Bay County :

Terrell K. Arline , Esq uire

County Attorney

Jennifer W. Shuler, Esq uire

Assistant County Attorney

Bay County Attorney's Office

840 West 11th Street

Panama City, Florida 32401 - 2336

For Intervenor Pinellas County:

Carl Brody , Esq uire

Senior Assistant County Attorney

Pinellas County Attorney's Office

315 Court Street

Clearwater, F lorida 33756

For Intervenor Miami - Dade County:

Estephanie Resnik , Esq uire

Assistant County Attorney

Cynthia Johnson - Stacks

Assistant County Attorney

Stephen P. Clark C enter

111 N.W. 1st Street, Suite 2810

Miami, Florida 33128

For Respondent: Michael J. Wheeler , Esq uire

Assistant General Counsel

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

STATEMENT OF THE ISSUES

This is a rule challenge brought pursuant to s ection

120.56, Florida Statutes , 1 / to existing Florida Administrative

Code r ules 63 G - 1.011, 63 G - 1.013, 63 G - 1.016, and 63 G - 1.017, (the

"Challenged Rules"), adopted by the D epartment of Juvenile

Justice (Department). At issue is whether some or all of the

challenged rules constitute an invalid exercise of delegated

legislative authority as defined by section 120.52(8), Florida

Statutes. The challengers allege the rules are invalid on three

grounds:

1) The rules mo dify the dividing line between c ounty and

s tate responsibility for the costs of secure juvenile detention

from "final court disposition" to "commitment" ;

2) The rules fail to implement the requirement that th e

counties are on ly responsible for the "actual costs" of sec ure

juvenile detention for the period of time prior to final court

disposition ;

3) The rules inappropriately utilize an appropriations

bill to modify the amount Petitioners are required to pay for

predisposition costs under section 985.686, Florida Statutes.

PRELIMINARY STATEMENT

On July 16, 2006, t he Department promulgated r ules 63G -

1.002, 63G - 1 .004, 63G - 1 .007, and 63G - l.008, among others, which

set forth definitions and formulated procedures for calculating

the shared costs of juvenile detention between the State of

Florida and the various counties (Old Rules).

The Old Rules were repealed as of July 6, 2010 , and in

their plac e the Department adopted the Challenged Rules 63G -

1.01l, 63G - 1.013, 63G - 1.016, and 63G - 1.017 (Challenged Rules or

New Rules). 2 /

On March 12, 2012 , Okaloosa County and Nassau County filed

a joint " Petition for Rule Challenge , " which was assigned to the

undersigned Administrative Law Judge. On March 27, 2012,

challenger B ay County petitioned to intervene. By Order dated

April 5, 2012, that petition was granted.

On March 27, 2012, the Division consolidated this rul e

challenge with DOAH Case Nos. 11 - 0995, 11 - 0999, 11 - 1001, 11 -

1002, 11 - 1003, 11 - 1004, 11 - 1265, 11 - 1266, and 1 1 - 1268. These

cases involved various counties' challenges to th e annual

reconciliation of the shared cost of juvenile detention for FY

2009 - 10 .

On March 29, 2012, Petitioner Miami - Dade County filed a

motion to c ontinue the f inal h earing in the consolidat ed cases .

During a prehearing conference held on April 5, 2012, the

Division granted the motion for continuance and severed the rule

challenge for a separate hearing scheduled for April 23 - 24,

2012 , in Tallahassee, Florida.

On April 9, 2012, Miami - Dade Co unty petitioned to Intervene

as a party aligned with the Department, and by Order dated

April 13, 2012, the petition was granted .

On April 17, 2012 , Pinellas County filed a petition t o

intervene which was granted at the outset of the final hearing

on Apri l 23, 2012 .

The parties filed a joint pre - hearing stipulation on

April 18, 2012 , stipulating to certain facts which are admitted

and issues of law on which there is agreement. Where relevant,

those stipulations have been incorporated within this Final

Or der.

The final hearing was convened as scheduled on April 23,

2012. At hearing, Petitioners Okaloosa and Nassau Counties and

Intervenor, Bay County, offered J oint E xhibits 1 - 75 which were

received into evidence . Petitioners Okaloosa and Nassau

Counties presented the testimony of Beth Davis, Office of

Program Accountability for the Department; Mark Greenwald, Chief

of Research and Planning for the Department 3 / ; and Richard

Herring, who was accepted as an expert in the legislative

budgeting process. In ad dition, Okaloosa and Nassau Counties

requested Official Recognition of Florida Rules of Juvenile

Procedure 8.110 and 8.115 and Fo rm 8.947, which was granted.

Bay County adopted the testimony of witnesses called by Okaloosa

and Nassau Counties .

The Depart ment presented the testimony of Vicki Harris,

Chief of the Bureau of Budget for the Department. Departm ent's

Exhibits 1 - 2 were received into evidence .

The two - volume transcript of the final he ar ing was filed

with the Division on May 1 0, 2012. At the req uest of

Petitioners, the time for filing proposed final orders was

extended to May 29, 20 1 2. Okaloosa, Nassau and Bay Counties

timely filed a Joint Proposed Final Order , which was joined in

by Intervenor Pinellas County (these four counties are

collective ly referred to as Challengers). Respondent and

Intervenor Miami - Dade County also filed P roposed F inal O rders.

The post - hearing submittals of all parties have been carefully

considered in the preparation of this Final Order.

FINDINGS OF FACT

The Parties

1 . Respondent, the Department, is the state agency

responsible for administering the cost sharing requirements in

section 985.686, Florida Statutes, for juvenile detention care.

2 . Petitioners and Intervenors are political subdivisions

of the State of F lorida and are non - fiscally constrained

counties subject to the cost sharing requirements of section

985.686.

3 . Petitioners and Intervenors are substantially affected

by the application of Florida Administrative Code R ules 63G -

1.0 1 0 through 63 G - 1.0 1 8 . (Joint Pre - hearing Stipulation). As

such, the Challengers have standing to initiate this proceeding.

The Implementing Statute and the Challenged Rules

4 . The statutory process governing the shared county and

state responsibility for secure juvenile dete ntion was adopted

in 2004, but did not go into effect until 2005 . 4 /

5 . On July 16, 20 06, the Department promulgated r ules 63G -

1.002, 63G - 1.004, 63G - 1.007, and 63G - l.008, among others, which

set forth definitions and formulated procedures for calculating

the shared costs of juvenile detention between the State of

Florida and the various counties (Old Rules).

6 . The Old Rules were repealed as of July 6, 2010 , and, in

their place, the Department adopted the Challenged Rules 63G -

1.0ll, 63G - 1.013, 63G - 1.016, and 63G - 1.017.

7 . The Challenged Rules purport to implement section

985.686, which provides that each county is responsible for

paying the costs of providing detention care "for juveniles for

the period of time prior to final court disposition." §

985. 686(3), Fla. Stat.

8 . The statute establishes a cost - sharing system whereby

each non - fiscally constrained county is required to be

i ndividually provided with an estimate of "its costs of

detention care for juveniles who reside in that county for the

peri od of time prior to final court disposition ," based on "the

prior use of secure detention for juveniles who are residents of

that county, as calculated by the department." § 985.686(5),

Fla. Stat. (emphasis added).

9 . Section 985.686(1) requires non - fi scally constrained

counties and Respondent to share the costs of "financial

support" for "detention care" for juveniles who are held in

detention centers operated by Respondent.

10 . Section 985.686(3) requires Petitioner s to pay the

costs of detention ca re "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).

11 . Detention care is defined in section 985.686(2)(a) to

me an secure detention. Secure detention is defined in section

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

custody " pending " adjudication or disposition as well as custody

" pending " placement.

12 . Each county must pay the estimated costs at the

beginning of each month. At the end of the state fiscal year,

"[a]ny difference between the estimated costs and actual costs

shall be reconciled. . . " Id.

The Challenged Rules

13 . Among the relevant changes made in the Challenged

Rules, the Depart ment replaced the definition of "final court

disposition" in r ule 63G - 1 .002 with a definition for

"commitment" in r u le 63G - 1.011. Specifically, Old Rule 63G -

1.002, states that "final court disposition" means "the date the

court enters a disposition for th e subject referral." This

definition was replaced by r ule 63G - 1.011 with a definition of

"commitment," which "means the fina l court disposition of a

juvenile delinquency charge through an order placing a youth in

the custody of the depar tm ent for placemen t in a residential or

non - residential program. Commitment to the department is in

lieu of a disposition of probation."

14 . Rule 63G - 1.011(8) includes a definition for "Pre -

commitment" that was not included in prior r ule 63G - 1.002 .

"Pre - commitment" mean s "those days a youth is detained in a

detention center prior to being committed to the department."

15 . The newly - defined terms are incorporated in the

challenged rules governing calculati on of the estimate d funding

(63G - 1.013); monthly reporting (63G - 1 .016); and in the

calculation of days for the annual reconciliation (63G - 1.017) .

16 . In r ule 63G - 1 . 01 3(b) the Counties' estimated funding

is determined by, "[t]he total number of pre - commitment service

days in secure detention," which include "all days u p to but not

including the date of commitment to the department." The rule

also requires that counties pay a portion of "the total pre -

commitment service days for all counties for the same time

period to arrive at each county's percentage of the total."

17 . Challenged R ule 63 G - 1.016 requires the Department to

generate a monthly web - based utilization report to provide each

county's "actual usage" for the previous service month. The

report includes infor mation on each youth including the

"commitment disp osition date, if available."

18 . In C hallenged R ule 63G - 1.017 , "commit ment disposition

date" is used to determ ine the counties ' actual costs.

19 . The Department's previous r ule 63 G - 1.002 acknowledged

that a "final court disposition" might result in s everal

alternative dispositions of a delinquency charge, which, in

addition to commitment, could include probation or dismissal of

a charge.

20 . The challengers contend that under the new rules the

c ounties are responsible for all "Pre - commitment" detent ion

costs regardless of whether the costs accrue after a court

enters a final disposition in the case that does not involve

commitment of a youth to the custody of the Department for

placement in a residential or non - residential program.

C ommitment is a su bset of final court disposition, according to

the challengers, since there are other types of dispositions

other than commitment. By adopting the current definition of

"commitment" in r ule 63 G - 1.011, the challengers contend that the

Department has impermi ssibly restricted and narrowed the term

"final court disposition" in violation of the implementing

statute.

Navigating the Juvenile Justice System

21 . In order to determine the validity of the C hallenged

R ules it is necessary to understand how juveniles accused of

committing a delinquent act are processed in Florida.

22 . Without objection, the final hearing testimony of the

Honorable Anthony H. Johnson in DOAH Case No. 10 - 1893, et al . ,

was received in evidence. Judge Johnson is the Circuit

Administr ative Judge of the Juvenile Division, Ninth Judicial

Circuit. Judg e Johnson explained the sequence of events that

occur s after a juvenile has been arrested and accused of

delinquency:

A. Okay, weÓll begin by the arrest of the

juvenile. And the juvenile is then taken to

the JAC, the Joint Assessment Center, where

a decision is made whether to keep the

juvenile in detention or to release the

juvenile. That decision is based upon

something called the DRAI, the Detention

Risk Assessment Instrument. How tha t works

probably is not important for the purpose of

this except to know that some juveniles are

released, and some remain detained.

The juveniles that are [sic] remained

detained will appear the following day or

within 24 hours before a circuit judg e, and

it would be the duty judge, the emergency

duty judge on the weekends, or a juvenile

delinquency judge if itÓs regular court day.

At that time the judge will determine

whether the juvenile should be released or

continue to be retained. ThatÓs also based

upon the DRAI. If the juvenile is detained,

he or she will remain for up to 21 days

pending their adjudicatory hearing.

Everything in juvenile has a different

name. We would call that a trial in any

other circumstance.

Now the 21 d ays is a statutory time

limit: however, itÓs possible in some cases

that that 21 days would be extended. If

there is a continuance by any party, and for

good cause shown, the judge can decide to

keep the juvenile detained past 21 days.

ThatÓs relatively unusual. ItÓs usually

resolved, one way or the other, in 21 days.

After the trial is conducted, if the

juvenile is found not guilty, of course he

or she is released. If theyÓre found

guilty, then a decision is made about

whether or not they should remain detained

pending the disposition in the case.

The disposition Ï there needs to be time

between the adjudication and the disposition

so that a pre - disposition report can be

prepared. ItÓs really the Department of

Juvenile Justice that decides wh ether or not

the child will be committed. We pretend

that itÓs the judge, but itÓs not really.

And that decision is made Ï is announced in

the pre - disposition report.

If the child is committed at the

disposition hearing, the judge will order

the chil d committed to the Department. Now,

one or two things will happen then. Well,

maybe one of three things.

If the child scores detention -- let me

not say scores. If itÓs a level eight or

above, then the child will remain detained.

If itÓs not that, the child will be released

and told to go home on home detention

awaiting placement.

HereÓs where things get, I think,

probably for your purposes, a bit complex.

LetÓs say at the disposition, the child -- the

recommendation of the Department is not th at

the child be committed, but that the child

be placed on probation. Then the child goes

into the community. The disposition has

then been held, and the childÓs on

probation . If the child violates probation,

then the child comes back into the system,

a nd then you sort of start this process

again , on the violation of probation.

If the child is found to have violated

his or her probation, then you go back to

the process where the Department makes a

recommendation. Could be commitment, it

could be s omething else. The child may be

detained during that time period.

Often what will happen is the

misconduct of the child will be handled in a

more informal manner by the court. The

court may decide instead of going through

the VOP hearing, violation of probation, IÓm

going to handle this by holding the child in

contempt for disobeying the courtÓs order to

go to school, to not use drugs, or whatever

the violation was. In that case , the child

may be detained for contempt, for a period

of 5 days for th e first offense, or 15 days

for a subsequent offense.

23 . Based upon the testimony of Judge Johnson, as well as

reference to the applicable statutory provisions , 5 / t he following

flowchart maps the "throughput" of accused juvenile delinquents

in Florida 's juvenile justice system from the time of arrest

until their release from the system:

FLORIDAÓS JUVENILE JUSTICE SYSTEM

Arrest

Joint Assessment Center

( D.R.A.I.)*

Detention

Release

Court Appearance (within 24 hrs.)

R elease Pretrial D etention

Max 21 days

Trial (adjudication hearing)

Not Guilty V erdict Guilty Verdict

(Release )

Predisposition Report Prepared Max 15 days

by DJJ)

Disposition Hearing

Committed to DJJ or

DCF - Licensed Child Commitment to DJJ Probation

Caring Agency but Sent and D etained

Home Pending Placement Pending Placement

Successful V.o. P

Completion of residential or non -

residential rehabilitation program

V.o.P. Hearing Contempt

Release Probation Conditional

Release Commitment to DJJ Other

or DCF Agency

* Detention Risk Assessment Instrument

24 . Consiste nt with Judge Johnson's testimony and section

985.433, once a juvenile has been adjudicated delinquent there

are two options available to the c ourt at the disposition

hearing: commitment o r probation.

25 . If the court determines to commit the juvenile, its

commitment options are circumscribed by section 985.441, which

provides in relevant part:

985.441 Commitment. Ï

(1) The court that has jurisdiction of an

adjudicated delinquent child may, by an

order stating the facts upon which a

determination of a sanction and

rehabilitative program was made at the

disposition hearing:

(a) Commit the child to a licensed child -

caring agency willing to receive the child;

however, the court may not co mmit the child

to a jail or to a facility used primarily as

a detention center or facility or shelter.

(b) Commit the child to the department at a

restrictiveness level defined in s. 985.03 .

Such commitment must be for the purpose of

exercising active control over the child,

including, but not limited to, custody,

care, training, monitoring for substance

abuse, electr onic monitoring, and treatment

of the child and release of the child from

residential commitment into the community in

a postcommitment nonresidential conditional

release program. If the child is not

successful in the conditional release

program, the depa rtment may use the transfer

procedure under subsection (4).

(c) Commit the child to the department for

placement in a program or facility for

serious or habitual juvenile offenders in

accordance with s. 985.47 .

26 . Section 985.03(32) defines Ð l icensed child - caring

agencyÑ a s a person, society, association, or agency licensed by

the Department of Children and Fami l ies to care for, receive,

and board children. Thus, a child may be committed to the

custody of an "agency" under the auspices of the Department of

Children and Famil ies , or committed directly to the custody of

Respondent.

27 . Section 985.433 imposes a dditional requirements on a

court which has decided to commit a juvenile offender to the

custody of DJJ:

(7) If the court determines that the child

should be adjudicated as having committed a

delinquent act and should be committed to

the department, such d etermination shall be

in writing or on the record of the hearing.

The determination shall include a specific

finding of the reasons for the decision to

adjudicate and to commit the child to the

department, including any determination that

the child was a m ember of a criminal gang.

28 . When a court 's disposition of a juvenile delinquent is

probation rather than commitment, section 985.433 appli es in

relevant part :

(8) If the court determines not to

adjudicate and commit to the department,

then the court shall determine what

community - based sanctions it will impose in

a probation program for the child.

Community - based sanctions may include, but

are not limited to, part icipation in

substance abuse treatment, a day - treatment

probation program, restitution in money or

in kind, a curfew, revocation or suspension

of the driverÓs license of the child,

community service, and appropriate

educational programs as determined by th e

district school board.

Department Implementation of its "Commitment" Definition

29 . The Juvenile Justice Information System (JJIS) is the

Department's statewide information system that tracks all

delinquency referrals, arrests, placement s and disposi tion data

associated with e very youth arrested in Florida.

30 . Historically , information was pulled from JJIS to

determine the number of days billed to the counties. Once a

disposition order was entered on a delinquency petition charge,

assigning a yout h to probation, commitment, or other possible

outcomes, the system would "stop billing" the counties as of the

date of the order , and any subsequent detention days would be

assigned to the State .

31 . Under the new "commitment" definition as set forth in

the Challenged R ules (and as implemented by JJIS) , the

Department's inform ation system only looks for a "qualifying

disposition to a commitment status" or placement on cond itional

release. All other days are considered pre - disposition, and

the refore the r esponsibility of the counties. This change has

narrowed the types of dispositions captured by the computer

coding.

32 . Although it is possible to obtain disposition dates

from JJIS based on a written disposition order for dispositions

such as probation or dismissal of the charge, that information

is no longer use d in the cost sharing system or provided to the

counties unless it is a commitment disposition . However ,

p ursuant to Juvenile Procedure rule 8.115 (which governs

disposition hearings), all dispo sition orders must not only

include the disposition of each count, but also specify the

Ðamount of time served in secure detention before disposition . Ñ

See , Fla. R. Juv. Pr. 8.115(d)(2). Thu s, the Department could

readi ly determine the number of predispo sition detention days

for all court dispositions, including probation, by accessing

the information contained in the disposition order.

33. The Challenged Rules shift a greater responsibility of

costs to counties, because the Department only obligates it self

to pay for one type of post - disposition expense, i .e. those

associated with commitment of the juvenile to the custody of the

Department for placement in a residential or non - residential

program. The Department assigns any other days to the counties,

including utilization days occurring after a disposition has

been entered assigning a juvenile to probation, or dismissing

the charge.

34 . Other costs for post - disposition activities that

result in secure detention, such as violation of probation,

pickup orders, or contempt of court, that do not involve

commitment become the responsibility of the counties.

Additionally, any detention days for juveniles waiting for

private placement outside of the Department, such as commitment

to a licensed child caring a gency, would also be counted as pre -

dispositional and billed to the counties.

35 . The overall impac t of the definitional change fr om

"final court disposition" to "commitment" has been a reduction

in the number of detention days assigned to the State, an d an

increase in the number of days assigned to the counties . This

shift in days numbers in the te ns of thousands.

36 . The Challenged Rules limit the s tate's statutory

responsibility for detention costs by narrowing "final court

disposition" to "commitm ent . " The result is a shift in

additional detention care costs to the counties in contravention

of section 985.686.

37 . The Department attempted to defend its use of the term

"commitment" as a reasonable interpretation of "final court

disposition" throu gh the testimony of its representative, Beth

Davis. Ms. Davis explained that in the D epartment's view,

probation, while a form of "disposition , " is not a "final court

disposition," because the "case is not closed" until the youth

successfully completes pr obation . However, t his interpretation

ignores the fact that juvenile offenders committed to the

Department often serve a term of probation following completion

of their residential rehabilitation. 6 / Under the Department's

reasoning , there would be no "fi nal court disposition" until

those youths successfully completed their terms of post -

commitment probation and their cases are closed. By this logic

"commitment" would not accurately represent the dividing line

between state and county responsibility, sinc e "final court

disposition" would not occur until successful completion of

post - commitment probation. The Department's position in this

regard is internally inconsistent and not supported by facts or

logic. Accordingly, the Department's position that "fi nal court

disposition" does not occur until completion of probation is

rejected. Under section 985.433(8), probation is one of the

possible statutory outcomes of the disposition hearing , and this

record does not support the Department's position that prob ation

is any less a "final court disposition" than "commitment . " 7 /

38 . Also problematic to the Department's position is the

situation created when a delinquent is placed on probation at

the disposition hearing and subsequently violates the terms of

pr oba tion. Under this scenario, the juvenile will be taken into

custody 8 / and brought before the court having jurisdiction. I f

the court determines a violation has occurred , rather than go

through a formal violation of pro bation hearing, it may find the

youth in contempt of court and order the child detained for up

to five days for the first offense and up to 15 days for

subsequent o ffenses. 9 / According to Ms. Davis , the days during

which the delinquent is detained for contempt of court are

considered "predis positional" and therefore the financial

responsibility of the counties.

39 . The above scenario highlights the unreasonableness of

the Department's use of "commitment" as the line of demarcation

for state and county responsibility. Under this scenario, a

disposition hearing was held pursuant to section 985.433, and

the court ordered a disposition of probation pursuant to

985.433 (8). However, if the youth violates probation and

consequently is held in contempt of court, predisposition days

accrue to the detriment of the counties, notwithstanding the

prior court disposition of probation.

Change in Department Methodology for Determining Estimate and

Reconciliation Amounts Billed to Counties.

40 . F or the first two years of detention - cost sharing, the

Depar tment based a county's obligation on a per diem approach.

The Department applied a methodology for billing counties their

share of secure detention cost based on a "per diem rate , " where

each county paid an amount based on the number of their

"predisposit ional days" times a cost per day calculated by the

Department that applied to both pre and post - dispositional days .

The cost per day was derived by dividing the total costs for

secure detention program by the number of total utilization

days. An estimate was provided based on the budgeted amount for

detention, and a reconciliation was performed at the end of the

year to Ðtru e - up Ñ the amounts billed to the counties to the

actual costs based on, at that time, a cost per day for the

entire s e cure detention p rogram.

41 . However, as a result of a challenge brought by

Hillsborough County against the Departm ent in DOAH Case No. 07 -

4398, Administrative Law Judge Daniel Manry issued a R ecommended

O rder on March 7, 2008, invalidating the Department's

methodology un der r ule 63G - 1.004, regarding the Department's

process for providing estimates to the counties. Judge Manry

concluded that the Department's per diem methodology conflicted

with its procedures outlined in rule 63G - 1.004. This rule

req uires that the Depart ment determ ine the estimate based on the

following:

(2) Each County will receive a percentage

computed by dividing the number of days used

during the previous year by the total number

of days used b y all counties. The resulting

percentage, when multiplied by the cost of

detention care as fixed by the legislature,

constitutes the county's estimated annual

cost.

42 . "Cost of detention care" is defined in the Old Rules

as "the cost of providing detention care as determined by the

General Appropriations Act. " (G.A.A.) Fla. Admin. Code R. 63G -

1.002(1). Significantly, this term was only utilized in

relation to the estimate, and was not used with regard to the

annual reconciliation process.

43 . Judge Manry did not make any findings or conclusions

with regard to r ule 63G - l.008, which governed the annual

reconciliation process. Presumably , this is because the process

provided in the Old Rules for the annual reconciliation is not

the same as the process outlined for the estimate. Instead,

r ule 63G - 1.008 provid es only that the reconciliation statement

"shall reflect the differenc e between the estimated costs paid

by the c ounty during the past fiscal year and the actual cost of

the county's usage during that period." There was no

requirement in r ule 63G - 1.008 th at the reconciliation be based

on anything within the G . A . A . ; the only time th e G . A . A was

mentioned was with regard to the e stimate.

44 . Beginning in FY 07 - 08, the Depa rt ment began to apply a

different approach that did not use a per - diem methodology, bu t

instead calculated the percentage of each county's pre -

dispositional days as compared to the other counties and

multiplied that amount by the Shared Trust Fund. This

methodology was applied not just to the estimate process, but

also to the reconciliatio n process. Effective July 6, 20 1 0,

this new approach was specifically adopted by the Challenged

Rules into the reconciliation process. Fla. Admin. Code R. 63G -

1.017.

Impact of the New Approach on the Counties

45 . W hen the Department abandoned the cost per day

approach it created an inequity and raised the cost to counties

over that of the State for secure detention. This inequity is a

result of a combination of several factors. Under the

Department's revised approa ch, it allocates amongst the cou ntie s

as a group the budgeted amount for the Shared Trust Fund as

dete rm i ned by the G . A . A. It assigns this amount to individual

counties based on utilization numbers from the fiscal year two

years prior to the current fiscal year. For example, for the

estima te for FY 09 - 10, the utilization numbers for FY 07 - 08 were

used. The counties are billed monthly based on this amount.

46 . As the year progresses, the Department expends am ounts

up to its budget authority to support the secure detention

program from four f u nding sources, 10 / regardless of whether these

amounts are applied to pre - or post - dispositional expenditures.

47 . The final bill to each county is based on the annual

reconciliation done at the end of the year. Under the

Department's methodology adopt ed by the Challenged Rule 63G -

l.017 in 2010, the Department allocates only the expenditures

from the Shared Trust Fund amongst the counties based on a

percentage of an individual counties' actual utilization numbers

as compared to all other counties. Howe ver, because the

Department makes no effort to expend funds f r om the Shared Trust

Fund only for the costs of predisposition secure detention,

there is no correlation between the expenditures made from this

trust fund and the statutory responsibility of eac h county to

pay its "actual costs" "for the per iod of time prior to final

court disposition." Although counties are only authorized and

obligated by the statute to pay for predispositional costs, the

Shared Trust Fund, which contains the revenues from the county

billings, is being used to fund both predispositional and

postd ispositional costs. 11 /

48 . In effect, under the Challenged Rules the Dep art ment

never "trues - up" the estimated amounts billed to each county

with the respective coun ty' s statutory share of the actual costs

as contemplated by section 985.686.

49 . The percentage of predispositional days of secure

detention which are the counties' responsibility does not match

the percentage of revenues allocated to the counties . This

inequity establish e s that the counties are in fact funding a

portion of post - disposition detention days, which are the

State's responsibility pursuant to statute. Indeed, on cross -

examination Department witnesses specifically acknowledged that

the legislature is underfundin g the Department's statutory

responsi bility, and that the counties ar e subsidizing a portion

of the s tate's share. The evidence established that for fiscal

year (FY) 2007 - 08 alone , the counti e s paid $2,980,716 over the

actual cost of pre - disposition days .

50 . T he a m ount by which the counties have subsidized the

s tate's share of detention costs in recent years is likely

understat ed. This is because the Depart ment began applying its

definition of commitm ent in FY 2009 - 2010, rather than the

statutory dividi ng line of "final court disposition." Because

the Department does not track the dates of disposition other

than for a commitment disposition, the extent of the effect of

this def initional change is uncertain. However, evidence

presented at hearing sugges ts that the effect on the costs

allocated to the counties is substantial .

51 . Petitioners presented evidence of a n alternative

calculation of detention costs to the counties based on a cost

per day methodology, similar to the methodology employed by the

D epartment prior to the 07 - 08 f iscal y ear. For FY 08 - 09,

Petitioners' expert calculated that the cost per day was $224,

based on utilization days for both the counties and the s tate

divided by the total expenditures for the secure detention

progra m . For F Y 09 - 10, this same calculation resulted in a cost

per day of $255.

52 . By applying this cost - per - day figure, Petitioners'

expert calculated that for FY 08 - 09, the non - fiscally

constrained counties would be required to pay $72,507,456 as

their portion of s ecure detention costs, as compared to the

$90,859,820 the Department assessed these counties. Th us, th ese

counties paid $18,352,364 more for detention cost sharing for

08 - 09 than they would have under the prior per diem methodol ogy.

53 . Similarly, for FY 09 - 10, Petitioners' expert

calculated that the non - fiscally constrained counties would be

r e quired to pay $80,205,660 under a cost - per - day analysis, as

compared to the $85,317,526 these counties were assessed under

the Department's current methodology. T hese counties paid

$5,111,866 more for detention cost sharing for FY 09 - 10 than

they would have under the prior per - diem methodology. In

addition, because the definitional change to commitment was

applied for this fiscal year, there is evidence that the d ollar

difference in the two methodologies is significant ly understated

for th at fiscal year.

54 . This testimony is persuasive regarding impacts on the

counties. I n fact, the Department's own documents reflect that

for FY 08 - 09, the counties had subsidiz ed the s tate's portion of

detention cos ts by $17,733,995. For FY 09 - 10, this num ber was

$5,412,546.

55 . This analysis highlights the inequities in the

Department's methodology, as promulgated in the Challenged

Rules. For example, for FY 2008 - 09, the Dep artment was paying

$127 per day for their post - dispositional days, while the

counties were paying $284 per day, more than double the

Department's cost per day, despite the fact that a day of secure

detention, whether pre - or post - dispositional, has the sam e

actual c ost.

56 . The annual reconciliation process as set forth in the

C hallenged Rules conflict s with section 985.686 , since it

results in counties being assessed more than the Ðactual costsÑ

Ðfor the period of time prior to final court disposition.Ñ

5 7 . A preponderance of the evidence established that the

Challenged Rules enlarge, modify and contravene c hapter 985 and

specifically section 985.686, Florida Statutes.

CONCLUSIONS OF LAW

58 . The Division of Admi nistrative Hearings has

jurisdiction over the subjec t matter and the parties hereto

pursuant to sections 120.56, 120.569, and 120.57(1), Florida

Statutes. Jurisdiction attaches when a person who is

substantially affected by an agency's rule claims that it is an

invalid exercise of delegated legis lative authority.

59 . The parties stipulated that Petitioners have standing

to initiate this proceeding. (Prehearing Stipulation, p. 7).

In addition, Petitioners and Intervenors have demonstrated that

they meet the "substantial interests" test for stan ding

established in Agrico Chemical Co. v. Dep't of Envtl. Reg. , 406

So. 2d 478 (Fla. 2d DCA 1981).

60 . As t he part ies challenging an existing agency rule ,

Petitioners ha ve the burden to prove by a preponderance of the

evidence that the challenged ru le c onstitutes an invalid

exercis e of delegated legislative authority as to the objections

raised. § 120.56(3)(a), Fla. Stat. In this instance

Petitioners claim the Challenged Rules are an invalid exercise

of delegated legislative authority in that they enla rge, modify,

or contravene the specific provisions of law implemented, i.e.

s ection 985.686, Florida Statutes.

61 . S e ction 120.52(8), Florida Statut e s, defines wha t

constitutes an "invalid exerci se of delegated legis lative

authority" :

(8) ÐInvalid exercise of delegated

legislative authorityÑ means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the fo llowing applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisio ns, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f ) The rule imposes regulatory costs on the

regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not su fficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to a dopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific power s and duties

conferred by the enabling statute.

62 . Historically, a gencies enjoyed "wide discretion" when

exercising their rulemaking authority. Statutory changes to

laws which authorize rulemaking have in recent year s

circumscribed the amount of discr etion that agencies may employ.

S.W. Fla. Water Mgmnt. Dist. v. Save the Manatee Club, Inc. , 773

So. 2d 594 (Fla. 1 st DCA 2000); see also Daniel Manry, "Agency

Exercise of Legislative Power and ALJ Veto Authority , " 28 J.

Nat'l Ass'n L . Jud. 421 (2008 Fall) .

"Final Court Disposition" v. "Commitment

63 . As noted , section 985.686 governs the shared county

and s tate responsibility for juvenile detention in secure

facilities. The plain mea ning of section 985.686(3) only

authorizes the Depart ment to charge a county for "the costs of

providing detention care . . . for juveniles for the period of

time prior to final court disposition ." (Emphasis added). This

phrase, which establishes the cut - off point between a county's

cost and the state's cost, is actually m entioned five times in

section 985.686. Aside from subsection 3, the phrase "final

court disposition" is also included twice in subsection 4(a),

once in subsection 4(b) and once in subsection 5.

64 . Contrary to this statutory authority, the Challenged

R ules define this dividing line as "commitment" rather than

"final court disposition." The Department's definition of

"commitment" substantially modifies the statutory dividing line

of "final court disposition" applicable in determining the

counties' respo nsibilities for the costs of secure juvenile

detention. This conclusion is supported by a review of c hapter

985, the Flor ida Rules of Juvenile Procedure, and the evidence

received at hearing .

Chapter 985 and Florida Rules of Juvenile Procedure

65 . Nota bly, the term "commitment" does not exist anywhere

in section 985.686. Although " final court disposition " is not

specifically defined in section 985.686, other p ort ions of

c hapter 985 are instructive, and clearly establish that

commitment is but one type of disposition.

66. The doctrine of in pari materia is a principle of

statutory construction that requires that statutes relating to

the same subject or object be construed together to harmonize

the statutes and to give effect to the l egislature's intent.

See Forsythe v. Longboat Key Beach Erosion Control Dist. , 604

So. 2d 452, 455 (Fla. 1992) ("Where possible, courts must give

full effect to all statutory provisions and construe related

statutory provisions in harmony with one another."); Fla. Dep't

of S tate v. Martin , 916 So. 2d 763, 768 (Fla. 2005); see also

K.J.F. v. State , 44 So. 3d 1204 (Fla. 1st DCA 2010) (court

considers section 985.4815 in pari materia with the remainder

of Chapter 985 and section 943.0435) . To approve the

Department's rules subs titut ing " commitment " for " final court

disposition " is inconsistent with these principals of statutory

construction.

6 7 . Although the phrase "final court disposition" is not

specifically defined, the term "disposition" occurs over 100

times in c hapter 98 5. And t here is a separate section of the

c hapter, Part VII, which deals with "Disposition;

P ostdisposition." A review of c hapter 985 demonstrates that the

term "commitment" means something much narrower than the broader

term "final court disposition." See § 985.03(21), (defining

te r m "disposition hearing" as "a h earing in which the court

determ ines the most appropriate dispositional services in the

least restrictive available setting provided for under part VII,

in delinquency cases"); § 985.185, (gover ning "evaluations for

disposition"); § 985.335, (governing the child's response to the

State's petition, noting a variety of options available to the

court at a disposition hearing); § 985.35, (regarding the

adjudicatory process); § 985.43, (discussing pre disposition

reports); § 985.433, (regarding disposition hearings);

§ 985.441, (providing for differ ing types of commitment).

6 8 . Generally, juvenile delinquency law contemplates an

adjudicatory hearing, which is roughly equivalent to a guilt

phase of a criminal trial, and a disposition hearing, which is

similar to sentencing. See E.A.R. v. State , 4 So. 3d 614 (Fla.

2009). The disposition hearing may or may not be held at the

same time as the adjudicatory hearing. §§ 985.35, 985.433, Fla.

Stat.; Fla. R s. Juv. P. 8.110, 8.115. Section 985.433, provides

that for disposition hearings in delinquenc y cases, the court is

to "determ ine the appropriate disposition to be made with regard

to the child." § 985.433(3), Fla. Stat. This section

specifically provid es that the court must enter a disposition

order in wr iting. § 985.433(10), Fla. Stat.

A disposition under this statute could provide for commitment,

or for probation. § 985.433(7) - (8), Fla. Stat. The disposition

order shall "state the disposition of each count, speci fying the

charge title, degree of offense, maximum penalty defined by

statute and specifying the amount of time served in secure

detention before disposition." Fla. R. Juv. P. 8.115. Further,

the Rules of Juvenile Procedure provides Form 8.947, Disposition

Order. The fo rm order provides options such as commitment to a

licensed child caring agency, commitment to the Department for

residenti al placement of vari ous risk levels, Juvenile

Pro b ation, or Dismissal of the Case. Fla. R. Juv. P. Fo rm

8.947.

6 9 . A disposition order, including for probation, is a

final appealable order . 12 / See J.T.R. v. Florida , 79 So. 3d 839

(Fla. 1st DCA 2012) ("J. T.R., a minor born in 1994, appeals a

final disposition order wherein the trial court withheld

adju dication and imposed probation for the offense of video

voyeurism as proscribed in section 810.l45(2)(a), Florida

Statutes Ñ ); K.H. v. Florida , 29 So. 3d 426 (Fla. 5th DCA 2010)

(K.H. "appeals the trial court's final disposition order

withholding adjudicati on of delinquency and imposing six months

of probation after finding K.H. guilty of furnishing a weapon to

a minor under eighteen years of age") ; K.J.F. v. State , 44 So.

3d 1204 (Fla. 1st DCA 2010) ("K . J.F., a child, appeals a final

disposition entered aft er he pled g uilty . . . The trial court

withhe ld adjudicati on of delinquency, placed K.J.F. on

probation, and ordered K . J.F. to register as a sexual

offender.").

70 . When read in pari materia , th e applicable statutes, as

well as the Rules of Juvenile Pro cedure, clearly demonstrate

that a "final court disposition" is not necessarily an order of

c ommitment to the Department, but rather includes other

dispositions such as commitment outside of the Department,

juvenile probation, and dismissal of the charge.

7 1 . Competent evidence established that there are

detention days associated with dispositions other than

commitment that are currently being charged to the counties,

such as time waiting to be picked up by a parent following a

disposition of probation or dismissal of charges. And t here are

other varying secure - detention days which should be post -

dispositional, and charged to the s tate under the statutory

dividing line of "final court disposition" which are evidently

being charged to the counties under the Department's commitment

definition. Examples include days in detention for violations

of probation , and contempt of court relating to a charge that

has already been disposed. ( See also Old Ru le 63G - 1.004(1)(b),

providing "placem e nts associated with a dministrative handling,

such as pick - up orders and violations of probation, will be

matched to a disposition date for their corr e sponding statutory

charge").

7 2 . I n the Challenged Rules the Depar tm ent limited the

statutory term "final court disposition" only to final court

disposition o rders of commitment to the Depart ment. With the

adoption of the Challenged Rules, the Dep art ment took the broad

category of "final court disposition" and limited it to one type

of disposition, i.e. commitment to the Depart ment. Thus, the

Challenged Rules enlarg e, modify, or contravene the specific

provisions of law implemented. Although the Department defends

its rule as a clarification of a statutory term , the Department

has no authority as a matter of law to further lim it a statutory

term beyond its plain meaning.

7 3 . Agencies once had broad discretion to "flesh out" an

articulated legislative policy with rulemaking. See Askew v.

Cross Key Waterways , 372 So. 2d 913 (Fla. 1978), Brewster

Phosphates v. Dep't of Envtl. R eg. , 444 So. 2d 483 (Fla. 1 st DCA

1984). However, even then, courts employed a fundamental

precept arising from the separation of powers doctrine that an

agency may not redefine statutory terms to modify the meaning of

a statute. See Campus Commc'ns, Inc . v. Dep't of Rev . , 473 So.

2d 1290 (Fla. 1985) (department rule defining "newspaper" for

purposes of a statutory sales tax exemption invalid for adding

criteria to statute); see also Dep't of Bus . Reg. v. Salvation

Ltd. Inc. , 452 So. 2d 65 (Fla. 1st DCA 1 984) (providing that a

rule which added a fifth criterion that meals must be prepared

and cooked on the premises to the existing statutory criteria

for a special restaurant beverage license "enlarged upon the

statutory criteria and, thus, exceeded the 'yar dstick' laid down

by the legislature"); Pedersen v. Green , 105 So. 2d 1 (Fla.

1958) (where statute excepted "feed" from sales tax, agency

cannot adopt rule limiting exemption to feed for animals kept

for agricultural purposes thereby excluding feed for zoo

animals). Nor may an agency apply a construction which

conflicts with the plain language of the statute.

7 4 . The Legislature has since amended Chapter 120 to

tighten and clarify the discretion of agencies to adopt rules.

In State v. Day Cruise Associat ion, Inc. , 794 So. 2d 696,

700 (Fla. 1 st DCA 2001), the First Dis tr ict tracked these

legislative changes stating:

Under the 1996 and 1999 amendments to the

APA, it is now clear, agencies have

rulemaking authority only where the

Legislature has enacted a specific statute,

and authorized the agency to implement it,

and then only if the (proposed) rule

implements or interprets specific powers or

duties, as opposed to improvising in

an area that can be said to fall only

generally within some class of powers o r

duties the Legislature has conferred on the

agency.

Id. at 700. See also Lamar Outdoor Advertising - Lakeland v. Fla.

Dep't of Transp. , 17 So. 3d 799 (Fla. 1st DCA 2009); Fla.

E lections Comm'n v. Blair , 52 So. 3d 9 (Fla. 1st DCA 2010); S W .

Fla. Water Mg mt. Dist. v. Save the Manatee Club, Inc. , 773 So.

2d 594, 599 (Fla. 1st DCA 2000); Golden West Financial

Corporation v. Florida Department of Revenue , 975 So. 2d 567

(Fla. 1 st DCA 2008).

7 5 . When reviewing the above statutory authority in pari

materia , t he Department's definitions of "commitment" and "pre -

commitment" (in r ule 63G - 1.0ll(2) and (8 )) and application of

these terms as the dividing line between the counties' and

state's responsibility for the costs of secure detention (in

r ules 63G - 1.013, 63G - 1.016, and 63G - 1.017) are an invalid

exercise of delegated legislative authority . The Challenged

Rules exceed the powers, functions and duties delegated by the

Legislature, and specifically violate 985.686, Florida Statutes.

For the same reason, the rules exceed the grant of rulemaking

authority, and enlarge, modify, and contravene the specific

provisions of law that the rules purport to implement.

7 6 . Based on the record before this fact - f inder, and based

on the findings of fact and conclusions of law made herein, the

undersigned concludes that the Department's narrow definition of

"commitment" as promulgated in the Challenged Rules is in

conflict with the applicable statute, which requires the

dividing line of responsibility between the state and the

c ounties to be "final court disposition . " Accordingly, the

Department's definitions of "commitment" and "pre - c ommitment" in

r ule 63G - 1.0ll (2) and (8 ) and application of these terms as the

dividing line between the counties' and state's responsibility

for the costs of secure detention in r ules 63G - 1.013 , 63G - 1.016,

and 63G - 1.017 constitute an invalid exercise of delegated

legislative authority .

Actual Costs and the Reconciliation Process

7 7 . Section 985.686(5) provides that the difference

between the esti mated costs for each county and its "actual

costs" for secure juvenile detention "for the period of time

prior to final court disposition" shall be reconciled at the end

of the state fiscal year.

7 8 . Challenged Rule 63G - l.013 govern s how the Department

c alculates "[e]stimates for each county's individual portion of

detention funding" and states as follows:

(1) Estimates for each countyÓs

individual portion of detention funding will

be calculated as follows:

(a) All youth served in secure detention

duri ng the most recently reconciled previous

fiscal year as reflected in the JJIS will be

identified;

(b) The total number of pre - commitment

service days in secure detention is computed

by including all days up to but not

including the date of commitment to the

department.

(2) The total number of pre - commitment

service days for each county from the most

recently reconciled previous fiscal year

utilization data will be divided by the

total pre - commitment service days for all

counties for that same time perio d to arrive

at each countyÓs percentage of the total.

(3) Each countyÓs percentage will be

multiplied by the total estimated annual

appropriation in the shared county/state

juvenile detention trust fund for the

upcoming fiscal year to determine each

coun tyÓs share of the total budget.

(4) The estimated share of the total

budget will be billed to the counties in

monthly installments.

(5) Invoices are to be mailed at the

beginning of the month prior to the service

period, so that an invoice for the Augu st

service period will be mailed in July.

7 9 . Unlike its predecessor, Rule 63G - l.008, which

specifically included the statutory directiv e of "actual cost,"

Rule 63G - l. 017 requires the same methodology for the annual

reconciliation as for the estimate, a nd merely recalculates each

county's share of the Shared County/State Juvenile Detention

Trust Fund based on that county's "actual utilization" as

provided in subsections 4, 5, and 6:

(4) In October of each year, the

department will perform an annual

reco nciliation of utilization and costs for

the prior fiscal year. Based on a countyÓs

actual utilization, a recalculation of that

countyÓs share of the shared county/state

juvenile detention trust fund expenditures

will be performed.

(5) In November of eac h year, the

department will provide each county an

annual reconcilation statement for the

previous fiscal year. The statement shall

reflect the difference between the amount

paid by the county based on the estimated

utilization and the actual utilization

reconciled in subsection (4) above.

(6) If the total amount paid by a county

falls short of the amount owed based on

actual utilization, the county will be

invoiced for that additional amount. The

amount due will be applied to the countyÓs

account. An invoice will accompany the

reconciliation statement, and shall be

payable on or before March 1. If the amount

paid by a county exceeds the amount owed

based on actual utilization, the county will

receive a credit. The credit will be

applied to the county Ós account and be

included on the invoice sent in November.

80 . Under Challenged Rule 63G - 1.017 , the Department never

determ ines the "actual costs" of pre - disposition detention care,

but only the actual e xpenditures from the Shared Trust Fund .

T h e se are not equivalent because, as the Department has

acknowledged , the Shared Trust Fund is used in p art to fund

post - dispositional care, which is the responsibility of the

State. Accordingly, the Department's methodology, as

implemented through the Challenged Rules, does not divide the

costs of secure juvenile detention between the counties and the

s tate based on the criteria provided in the statute, and

therefore conflicts with section 985.686, Florida Statutes.

8 1 . Although the Department's methodology "tru es up"

actual utilization days, this has no effect on the division of

t he detention costs between the state and the counties, since

that amount is predetermined based on the Shared Trust Fund.

The "recalculation" that is performed as part of the ann ual

re conciliation merely redistributes the responsibilities of a

county as compared to other counties. No financial

respons ibility is shifted between the s tate an d the counties

based on the annual reconciliation process, contra ry to the

intent and plain lan gua ge of the statute.

8 2 . The method of allocating costs as set forth in the

Challenged Rules results in the Department having a

substantially reduced cost per post - disposition day as compared

to the cost per pre - disposition day allocated to the paying

coun ties. The Department has acknowledged this has resulted in

the counties essentially subsidizing the costs of post -

disposition days, which by statute, can only be allocated to the

State.

8 3 . For the above reasons, the Challenged Rul e s are an

invalid exer cise of delegated legislative authority because they

go beyond the powers, functions and duties delegated by the

l egislature in section 985.686, Florida Statutes. For the same

reason, the Challenged Rules exceed the grant of rulemaking

authority, and enla rge, modify, and contravene the specific

provisions of law that the rules purport to implement.

8 4 . The Department may not interpret a law it is charged

with administering in an arbitrary or capricious manner. As a

result of its arbitrary and erroneous reading of the law it is

char ged with administering, no deference would be due to such an

interpretation by the agency. See , e.g. , Pan American World

Airways, Inc. v. Florida Public Service Com. , 427 So. 2d 716,

719 (Fla. 1983) ("[T]he administrative cons truction of a statute

by an agency or body responsible for the statute's

administration is entitled to great weight and should not be

overturned unless clearly erroneous.").

8 5 . Where the language of a statute is clear and

unambiguous and given the commo n meaning, a contrary

interpretation is an invalid exercise of delegated legislative

authority. See Campus Commc'ns, Inc. v. Fla. Dep't of Revenue ,

473 So. 2d 1290, 1291 (Fla. 1985); Fla. Dep't of Health & Rehab.

Servs. v. McTigue , 387 So. 2d 454 (Fla. 1 s t DCA 1980).

86. Finally, Petitioners argue that, as a matter of law,

the Challenged Rules are invalid because they base the costs of

secure detention for the counties on an appropriation, and not

actual costs of secure juvenile detention "for the period of

time prior to final court disposition," contrary to the

substantive law. According to Petitioners, t he Department's

interpretation of the G . A . A . , through the Challenged Rules,

would effectively render it unconstitutional, as it applies the

G . A . A . in c onflict with existing substantive law.

87. Given the preceding determination that the Challenged

Rules constitute an invalid exercise of delegated legislative

authority on other grounds it is unnecessary for the undersigned

to further determine whether t he Department's interpretation of

the G.A.A., as manifested in the challenged rules, would violate

state constitutional law.

Attorneys' Fees and Costs Pursuant to section 120.595(3)

8 8 . When a rule or portion of a rule has been determined

invalid under s ection 1 20.56(3), then section 1 20 . 595(3)

r equires an award of reasonable costs and atto rneys' fees to the

Petition ers (up to $50,000) unless the Department demonstrates

that its actions were "substantially justified" or special

circumstances exist which w ould make the award unjust.

"Substantially justified" is defined in the statute as "a

reasonable basis in law and fact at the time the actions were

taken by the agency." § 1 20.595(3), Fla. Stat. Petitioners

requested section 120.595 fees in the event tha t its rule

challenge is successful. The Department's adoption of the

Challenged Rules, which clearly conflict with the plain language

of the law implemented, section 985.686, Florida Statutes , was

not substantially justified , nor has the Department demons trated

that special circumstances exist which would make the award

unjust . An award of fees and costs based upon section

1 20.595(3) is appropriate . Juri sdiction is retained to

dete rm ine the amount of such award.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Florida Administrative Code R ules 63 G -

1.011, 63 G - 1.013, 63 G - 1.016, and 63 G - 1.017 constitute an invalid

exercise of delegated legislative authority.

I t is further ORDERED that the Department is liable for

att orneys' fees and costs to Petitioners in an amount not to

exceed $50,000, pursuant to section 120.595, Florida Statutes.

Jurisdiction is retained to deter m ine the amount.

DONE AND ORDERED this 1 7 th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of July , 2012 .

ENDNOTES

1 / All statutory references are to the 2011 version of the

Florida Statutes, unless otherwise indicated .

1/ All statutory references are to the 2011 version of the

Florida Statutes, unless otherwise indicated.

2 / Additional rules adopted at that time that are not challenged

in these proceedings include Rules 63G - 1.010, 63G - 1.012, 63G -

1.014, 63G - 1.015, and 63G - 1.018.

3 / As employees of Respondent, the se witnesses were dete rmined

to be witnesses adverse to the challenging counties.

4 / A lawsuit brought by Florida Association of Counties was

successful in challenging the law as an unfunded mandate. The

l egis lature subsequently readopted the law in a special session

and cured that particular constitutional defect.

5 / See sections 985.03 (Definitions); 985.255 (Detention

Criteria; detention hearing); 985.433 (Disposition Hearings in

delinquency cases); 985.43 5 (Probation and postcommitment

probation; community service); 985.439 (Violation of probation

or postcommitment probation); and 985.441 (commitment).

6 / Section 985.433(9) would suggest that probation is mandatory

in all cases regardless of the disposi tion ordered in the

disposition hearing : " After appropriate sanctions for the

offense are determined, the court shall develop, approve, and

order a plan of probation . . .". However, see also section

985.433(7)(c) which provides "[ T ] he court may also requ ire that

the child be placed in a probation program following the childÓs

discharge from commitment. "

7 / The finding that a term of probation ordered in a section

985.433 disposition hearing is as much a Ðfinal court

dispositionÑ as ÐcommitmentÑ is suppo rted by the fact that

revocation, modification, or continuation of probation requires

the entry of a new disposition order by the court . See section

985.439(4), and Juvenile Procedure R ule 8.120(a)(5).

8 / When taken into custody for violation of probati on, youths

are held in a Ðconsequence unitÑ pending a probable cause

hearing. A consequence unit is a secure facility specifically

designated by the D epartment for children who are taken into

custody under section 985.101 for violating probation or

postcommitment probation, or who have been found by the court to

have violated the conditions of probation or postcommit ment

probation.

9 / The sanction of contempt is sometimes used by juvenile court

judges as an alternative to the formal violation of probation

proceedings governed by section 985.439 and Juvenile Procedure

Rule 8.120(a).

10 / FloridaÓs Secure Detention Pr ogram is funded by : General

Revenue; the shared County/State Trust Fund; the Grants and

Donations Trust Fund; and the Federal Grants Trust Fund.

11 / An additional inequity under the new rules results because

the other two trust funds used to fund the cos ts of secure

detention, the Federal Grants Trust Fund and the Grants and

Donations Trust Fund, are used exclusively for post - disposition

days even though the revenue in these funds is clearly to offset

the costs of both pre - and post - disposition days.

12 / By contrast, see 985.433(6), which specifically precludes

appeal of the predisposition report prepared pursuant to this

section.

COPIES FURNISHED :

Carly J. Schrader, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive, Suite 200

Post Office Box 11008

Tallahassee, Florida 32302

[e-mail]

John R. Dowd, Esquire

Okaloosa County Attorney`s Office

Post Office Box 404

901 Eglin Parkway

Shalimar, Florida 32579 - 0404

David D. Hallman, Esquire

Nassau County Attorney

Suite 6

96 135 Nassau Place

Yulee, Florida 32097 - 8635

Brian Berkowitz, Esquire

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399

[e-mail]

Terrell K. Arline, Esquire

Bay County Attorne yÓs Office

840 West 11th Street

Panama City, Florida 32401 - 2336

[e-mail]

Linda Brehmer Lanosa, Esquire

Orange County Attorney`s Office

Litigation Section

201 South Rosalind Avenue, 3rd Floor

Post Office Box 1393

Orlando, Florida 32802 - 1 393

[e-mail]

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Ken Plante, Coordinator

Joint Administr ative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

Wansley H. Walters, Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

Brian Berkow itz, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399 - 3100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant t o 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 administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquart ers or where a

party resides or as otherwise provided by law.