13-002957 County Of Volusia, A Political Subdivision Of The State Of Florida vs. Department Of Juvenile Justice Status: Closed Recommended Order on Wednesday, October 29, 2014.

Summary: As Volusia County was not given a point of entry to challenge the Department's 2008-09 reconciliation of shared costs, the amended petition was timely and Volusia County is entitled to a revised assessment with an additional credit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY OF VOLUSIA, A POLITICAL

SUBDIVISION OF THE STATE OF

FLORIDA ,

Petitioner,

DOAH Case No. 1 3 - 29 57

v.

DEPARTMENT OF JUVENILE JUSTICE,

Respondent.

___ /

RECOMMENDED ORDER

An administrative he aring was held in t his case by video -

teleconference at locations in Tallahassee and Daytona Beach,

Florida, on September 23, 2014, before James H. Peterson III,

Administrative Law Judge of the Division of Administrative

Hearings.

APPE ARANCES

For Petitioner: Mary G. Jolley, Esquire

Nancy e Jones, Esquire

County of Volusia

123 West Indiana Avenue , Room 301

Deland, Florida 32720

For Respondent: Michael John Wheeler, Esquire

Department of Juvenile Justice

2 737 Centerview Drive

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent, the Department of Juvenile Justice ( the

Department or Respondent ), provided Petitioner, the County of

Volusia (Volusia County or Petitioner ), a point of entr y to

challenge the Department's 2008 - 2009 reconciliation regarding

Volusia County and the Department's shared costs for secure

detention care for juveniles.

PRELIMINARY STATEMENT

On April 16, 2013, a four - count Amended Petition for

Administrative Heari ng (Amended Pet ition) from Volusia County

dated April 10, 2013, challenging the Department's annual

reconci lia tions for a number of fiscal years and challenging

certain rules , was filed with the Division o f Administrative

Hearings . The case was originally assigned DOAH Case No. 13 -

1442RX. Count I challenged the Department's fiscal year (FY)

2008 - 2009 reconciliation, Count II challenged the FY 2009 - 2010

reconciliation, Count III challenged the FY 2010 - 2011

reconciliation, Count IV challenged the FY 2011 - 20 12

reconciliation, and Count V challenged certain rules enacted by

the Department in 2012 containing definitions and procedures for

calc ulating the secure juvenile detention care costs between the

Department and Florida counties.

On May 16, 2013, following a telephonic hearing on the

Department's Motion to Dismiss, an O rder was entered dismissing

Counts II and III , placing Counts IV and V in abeyance pending

the outcome of pending appeals in other cases addressing the

issues raised in Counts IV and V, and d enying the Motion to

Dismiss Count I. By Order dated May 29, 2013, Count I was also

placed in abe yance .

On August 7, 2013, Volusia County voluntarily dismissed

Count V , the rule challenge. Thereafter , an Order Modifying

Case Style and Severing Count I was entered on August 9, 2013,

severing Count I from the remaining Count IV. The "RX" in the

style of the original DOAH Case No. 1 3 - 1442RX for the remaining

Count IV was dropped and the case number was changed to 13 - 1442

to reflect the fact that there was no longer a rule challenge .

Count I was assigned a new case number reflected in the style

above, DOAH Case No. 13 - 2957. DOAH Case No. 13 - 1442 was

subsequently consolidated with a number of other cases

challenging the FY 2011 - 2012 reconciliation and even tually

resolved and closed by Order Closing Files and Relinquishing

Jurisdiction on December 18, 2013.

Once severed, this case, DOAH Case No. 13 - 2957, was placed

in abeyance pending the appeal of DOA H Case No. 10 - 1893

involving a challenge to the FY 2008 - 2009 reconciliation by a

number of counties other than Volusia County. After a decision

in that appeal, Orders renewing the abeyance a number of times

were entered based upon status reports filed by the parties on

February 20, March 4, March 13, and Apri l 14, 2014, advising

that "an agreement in principle has been reached that will

resolve all issues involved in the instant case."

On May 15, 2014, the Department filed another Motion to

Dismiss, asserting, as previously asserted in its original

Motion to Dismiss, that Volusia County's challenge to the FY

2008 - 2009 reconciliation was untimely. Following a telephonic

hearing, the Department's Motion to Dismiss was denied and this

case was scheduled for hearing to be held August 8, 2014 . By

Order dated July 16, 2014, granting a stipulated motion to

continue , the original hearing date was conti nued and

rescheduled for September 23, 2014.

On September 4, 2014, the Department filed a Motion to

Relinquish Jurisdiction asserting that, after discovery, " the

partie s are in agreement that there is no material issue in

dispute and the Respondent's letter of December 7, 2009 did not

fully comply with Administrative Law Rule 28.106.111 [relating

to point of entry]. " The Motion to Relinquish Jurisdiction

further stated, "Respondent has discussed this matter with

Petitioner and advised Petitioner that this motion would be

filed." Under the impression that the Motion to Relinquish

Jurisdiction was agreed upon , on September 4, 2014, the

undersigned entered an Order Closing File and Relinquishing

Jurisdiction. Later that day, at the request of Volusia County,

a telephonic hearing was held wherein Volusia County advised

that it did not agree to close the case and t he undersigned

determined that there appeared to be remaining genuine issues of

material fact . Therefore, an Order Vacating Order Closing File

and Relinquishing Jurisdiction was entered that same day.

At the hearing held September 23, 2014, Petitioner

presented the testimony of Volusia County Division of

Correction s Director , Marilyn Chandler Ford , and offered 20

exhibits which were received into evidence as PetitionerÓs

Exhibits P - 1 through P - 20, without objection. Respondent

presented the testimony of the DepartmentÓs Director of the

Office of Program Accountabil ity, Beth Davis, but offered no

exhibits.

The proc eedings were recorded and a transcript was ordered.

The parties were given 10 days from date of the filing of the

hearing transcript within which to submit their proposed

recommended orders. The one - volum e Transcript of the

pr oceedings was filed on October 3, 2014. Both parties timely

filed their respective Proposed Recommended Orders, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The State of Florida is re sponsible for providing

detention care to juveniles.

2. Volusia County and the Department have a joint

obligation to contribute to the financial support of juvenile

detention care pursuant to section 985.686(1), Florida

Statutes. 1/

3. Volusia County is a political subdivision of the State

of Florida and is mandated by section 985.686(3) to pay the

costs of providing detention care for juveniles only for the

period of time prior to final court disposition, exclusive of

certain costs as set forth in the sta tute. The State of Florida

is responsible for all other costs of secure juvenile detention.

4. The Department is respons ible for administering the

cost - sharing requirements .

5. Any difference between the estimated costs and actual

costs paid by Petition er shall be reconciled by Respondent at

the end of each fiscal year pursuant to section 985.686(5).

6. The administrative rule s enacted by the Department

provide that a county is to be given a credit for any

overpayment.

7. Volusia County paid $3,739,3 25 in twelve monthly

payments of $311,610.38 based on the Department 's fiscal year

2008 - 2009 Secure Detention Cost Share Estimate.

8. On or about December 7, 2009, the Department issued its

Annual Reconciliation for fiscal year 2008 - 2009 , which set for th

Volusia County Ós FY 20 08 - 20 09 share of the year - end cost of

secure detention, and assigned Petitioner a credit for

overpayment in the amount of $111,040.17.

9. On invoice number 201002 - 64, dated January 5, 2010,

Respondent provided Volusia County a credit of $111,040.17 ,

designated as ÐFY 08 - 09 Reconciliation.Ñ

10. The D epartment has adopted the administrative law

judgeÓs Recommended O rder entered in DOAH Case No. 10 - 1893

(consolidated with seven other cases) , Miami - Dade County, et al.

v. Department of Ju venile Justice , Case No. 10 - 1893, et seq .

(Fla. DOAH Aug. 22, 2012)( Miami - Dade Recommended Order ) , as set

forth in Okaloosa County v. Departmen t of Juvenile Justice , 131

So. 3d 818, 819 (Fla. 1st DCA 2014) , which required the

Department to provide an annua l reconciliation that reflected

each countyÓs actual costs.

11. For FY 2008 - 2009, the actual cost per day for secure

detention for a juvenile was $220.81.

12. For FY 2008 - 2009, Volusia CountyÓs total pre -

dispositional days were 8,679.

13. For FY 2008 - 2 009, Volusia CountyÓs actual costs were

$1,916,409.90.

14. For FY 2008 - 2009, Volusia County overpaid the

Department $1,822,915. 10.

15. Volusia County is substantially affected by the

reassessment of its actual costs of detention for FY 2008 - 2009 .

16. Fo r fiscal year 2008 - 2009, Volusia County is owed an

additional credit of $1,711,874.93 for overpayment .

17. Volusia Cou nty filed its Amended Petition for

Administrative Hearing on April 16, 2013, challenging the FY

2008 - 2009 annual reconciliation and seeki ng a refund for its

overpayment.

18. Volusia CountyÓs substantial interest is of a type and

nature for which the undersigned has jurisdiction in that it

will determine Volusia CountyÓs actual cost of secure detention

care for FY 2008 - 2009 and determine wh ether Volusia County is

entitled to a credit . 2 /

19. Volusia County was not a party to DOAH Case No. 10 -

1893 resulting in the Miami - Dade Recommended Order or Okaloosa

County v. Depar t ment of Juvenile Justice , 131 So. 3d 818, 819

(Fla. 1st DCA 2014), refere nced in Finding of Fact 10, above.

20. In this case, t he DepartmentÓs response t o request

number one of Volusia CountyÓs Second Request for Admissions

admitted Ðthat Volusia County was not provided a point of entry

into proceedings as required under secti on 28 - 106.111 of the

Florida Administrative Code to challenge the fiscal year 2008 -

2009 annual reconciliation. Ñ See Exh. P - 5, pp. 6 - 9.

21. T he DepartmentÓs response to Volusia CountyÓs request

number two of Volusia CountyÓs Second Request for Admissi ons

admitted Ðthat Volusia County was not provided a clear point of

entry to challenge the fiscal year 2008 - 2009 annual

reconciliation pursuant to C apeletti Brothers, Inc. v.

Depar t ment of Transp ortation , 362 So. 2d 346 (Fla. 1 st DCA 1978)

cert . denied , 368 So . 2d 1374 (Fla 1979).Ñ See Exh. P - 5, pp. 6 -

9.

22. At no time has the Department attempted to seek relief

from its admission that Volusia County was not provided a point

of entry to challenge the FY 2008 - 2009 reconciliation.

23. Based upon the Department Ós admission, it is found as

a matter of fact that Volusia County was not provided with a

point of entry to challenge the FY 2008 - 2009 reconciliation.

24. As Volusia County was not provided with a point of

entry to challenge the FY 2008 - 2009 reconciliatio n , Count I of

Volusia CountyÓs Amended Pet ition challenging the Department's

FY 2008 - 2009 reconciliation was timely filed .

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

proceed ing pursuant to sections 120.569 and 120.57(1), Florida

Statu t es.

26. Volusia County has standing to bring this action. The

parties have stipulated, and it is concluded that the

determination of whether Volusia County is entitled to a refund

for overpaym ent of its actual costs of detention for FY 2008 -

2009 affects Volusia CountyÓs substantial interests . Those

interests are of the type for which this proceeding was designed

to protect. See Agrico Chem. Corp. v. Dep't of Envtl. Reg. , 406

So. 2d 478 (Fla. 2d DCA 1981) (standing shown where injury is of

sufficient immediacy and type which the proceeding is designed

to protect ).

27 . Further, by its response to requests for admissions,

the Department has conceded Ðthat Volusia County was not

provided a point of entry into proceedings as required under

section 28 - 106.111 of the Florida Administrative Code to

challenge the fiscal year 2008 - 2009 annual reconciliation.Ñ

28 . Florida Rule of Civil Procedure 1.370(b), provides in

pertinent part:

Effect of Admission . Any matter admitted

under this rule is conclusively established

unless the court on motion permits

withdrawal or amendment of the admission.

29 . At no time has t he Department attempted to withdraw or

amend its admission that Volusia County was not provided a point

of entry to challenge the FY 2008 - 2009 reconciliation.

30 . In fact, despite request by the undersigned at the

final hearing that the Department address the issue of Ðthe

admission that there was no clear point of entryÑ in its post -

trial submission , 3 / the DepartmentÓs Proposed Recommended Order

does not address the issue.

31 . As recognized by the First District Court of Appeal in

Twin City Roofing Construction Specialists, Inc. v. Dep ar t ment

of Financial Serv ices , 969 So. 2d 563 , 565:

[ m ] atters admitted during discovery in

administrative litigation can furnish the

basis for a finding of fact , see Fla. Admin.

Code R. 28 - 106.206 (Florida Ru les of Civil

Procedure regarding discovery are applicable

in administrative proceedings); Fla. R. Civ.

P. 1.370(b)( if a party admits a matter i n

response to a request for admission then

that matter is "conclusively established

unless the court on motion permits

withdrawal or amendment of the

admission"); see also Holland v. CSX

Transp., Inc. , 583 So. 2d 777 (Fla. 2d DCA

1991) (holding that an adm ission made in

response to a request for admissions

"conclusively establishes the fact

admitted") .

32 . Therefore, it has been conclusively established that

Volusia County wa s not afforded a point of entry. Id.

33 . Because Volusia County was not pro vided a point of

entry to challenge the DepartmentÓs FY 2008 - 2009 reconciliation ,

the commencement of the administrative process was not

triggered. Cf. Fl a . League of Cities, Inc. v. Admin. CommÓn ,

586 So. 2d 397, 413 (Fla. 1st DCA 1991) ( Ð N otice of agency action

which does not inform the affected party of its right to request

a hearing and the time limits for doing so is inadequate to

trigger the commencemen t of the administrative process . Ñ ).

34 . I t follows that the DepartmentÓs FY 2008 - 2009

reconciliatio n as to Volusia County is regarded as

Ðpreliminary . Ñ See Capeletti Bro s . , Inc. v. DepÓt of Transp. ,

362 So. 2d 346, 348 - 349 (Fla. 1 st DCA 1978), cert. denied , 368

So. 2d 1374 (Fla. 1979) ( ÐAbsent waiver, we must regard an

agencyÓs f ree - form action as only preliminary irrespective of

its tenor . Ñ).

3 5 . Although Volusia Count y presented additional evidence

on the lack of point of entry, no analysis or findings on that

evidence has been undertaken because of the DepartmentÓs

admissions . The evidence was othe rwise insufficient to show

that Volusia County waived its right to challenge the

DepartmentÓs FY 2008 - 2009 reconciliation as to Volusia County.

As noted in Henry v. Department of Admin istration , 431 So. 2d

677 (Fla. 1st DCA 1983 ):

Waiver is not a concept favored in the law,

and must be clearly demonstrated by the

agency claiming the benefit . In Capeletti

Brothers, Inc. v. State, Department of

Transportation , 362 So. 2d 346, 348 (Fla.

1st DCA 1978) ; cert . denied , 368 So. 2d 1374

(1979) , this court held:

[A]n agency must grant affected parties a

clear point of entry, within a specified

time after some recognizable event

in investigatory or other free - form

proceedings, to formal or informal

proceedings under Section 120.57 .

Uncertainty in an agency's rules and

practices on this point usually results, as

is shown by our experience in the past

several months, in a petition for review

followed by an agency m otion to dismiss on

the alternative grounds that the agency has

not yet taken final action or that, if it

has done so, the request for Section

120.57 proceedings and the review petition

are too late. We have usually resolved such

confusion in favor of the affected party .

(emphasis added) .

36 . T he Department argues that the doctrine of

administrative finality should be applied to foreclose Volusia

CountyÓs challenge to the DepartmentÓs FY 2008 - 2009

reconciliation, citing the decision in Okaloosa County v .

Dep artment of Juv enile Just i ce , 131 So. 3d 818 (Fla. 1st DCA

2014). There, the First District Court of Appeal stated:

At the conclusion of the consolidated

administrative proceedings, which included

the original challengers to the annual

reconciliation and the non - challenging

counties, the ALJ made the following

determinations: 1) the December 7, 2009

annual reconciliation constituted final

agency action for all counties that had not

contested the reconciliation in accordance

with the Department's Janua ry 26, 2010

letter; 2) the Department lacked statutory

authority to recalculate the amounts set

forth in its annual reconciliation for the

fifty - five counties that had not filed

challenges; and 3) the doctrine of

administrative finality precluded Orange

Co unty from belatedly challenging the annual

reconciliation. See Austin Tupler Trucking,

Inc. v. Hawkins , 377 So. 2d 679, 681 (Fla.

1979) (stating "[t]here must be a terminal

point in every proceeding both

administrative and judicial, at which the

parties an d the public may rely on a

decision as being final and dispositive of

the rights and issues involved therein").

Finding that the Department acted without

any legitimate reason in disturbing and

adjusting the annual reconciliation as to

those counties such as Orange County that

did not timely challenge it, the ALJ

recommended reinstatement of the amounts set

forth in the December 7, 2009 annual

reconciliation letter for Orange County and

similarly situated counties. We conclude

that these rulings fully comp ort with the

law. Accordingly, we reverse the final

order and remand with instructions to the

Department to adopt the recommended order in

its entirety.

131 So. 3d at 820 - 21.

37. Volusia County , however, was not a party to the

Ð consolidated administra tive proceedings, which included the

original challengers to the annual reconciliation and the non -

challenging counties ,Ñ i d. , addressed in the Miami - Dade

Recommended Order 4 / and the First District Court of AppealÓs

opinion in Okaloosa County , supra . Rath er, t he original

challengers in the underlying proceeding included Brevard,

Broward, Santa Rosa, Pinellas, Hillsborough, Hern ando, and

Miami - Dade counties. O f those original challengers, Pinellas,

Brevard, Hillsborough, and Santa Rosa counties were found to

have accepted the DepartmentÓs March 23, 2010, adjustment,

leaving only Hernando, Miami - Dade, and Broward counties that

were found to have maintained their challenge in that

proceeding. The Ðnon - challenging countiesÑ involved in that

consolidated proce eding included Alachua, Orange, Escambia, City

of Jacksonvill e, Bay, Seminole, and Okaloosa counties. Miami -

Dade Recommended Order , ¶¶ 104 - 107.

38. Further, in his recommended order, Judge Stevenson

specifically noted , ÐThis order does not purport to r ecommend a

course of action to the Department as regards those counties

that were not parties to this litigation.Ñ Miami - Dade

Recommended Order , 84, n. 20.

39. The need for administrative finality should not bar

Volusia CountyÓs challenge. T he doctrine of administrative

finality , drawn from Austin Tupler , supra , involved a repetitive

challenge by the same petitioner before the same agency

involving the same issue . 377 So. 2d at 681. Ð In the field of

administrative law, the counterpart to res judicata i s

administrative finality. Ñ Delray Med. Ctr . , Inc. v. Ag. for

Health Care Admin . , 5 So. 3d, 26, 29 (Fla. 4 th DCA 2009). Res

judicata applies to bar a subsequent claim where there was a

former judgment on the merits between the same parties or their

privi es, on the same cause of action. Id. In this case,

Volusia County is challenging the DepartmentÓs FY 2008 - 2009

reconciliation regarding Volusia County for the first time.

Therefore, neither res judicata nor the concept of

administrative finality should apply to prevent Volusia CountyÓs

challenge.

40. Moreover, in this case, unlike the challenges

addressed in Okaloosa County , the fact that Volusia County was

not afforded a point of entry has been conclusively established

by the DepartmentÓs admissions .

41. Furthermore, in determining the correct amount for the

FY 2008 - 2009 reconciliation for Volusia County, the parties have

stipulated to the actual cost per day for a juvenileÓs secure

detention, as well as Volusia CountyÓs total pr e - dispositional

days, actual costs , overpayment to the Department, and the

amount Volusia County is owed as an additional credit for

overpaymen t.

42. Therefore, as Volusia County has standing to bring

this proceeding, Count I of the Amended Petition was timely

filed because Volusia County was not afforded a point of entry ,

and the parties have stipulated to the correct amount owed to

Volusia County for its overpayment to the Department for FY

2008 - 2009, it is appropriate for the Department to enter a final

order setting forth the amount Volusia County is owed as an

additional credit for overpayment to the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Juvenile Justice enter a

final order fin ding that t he Department failed to provide

Volusia County with a point of entry to challenge the

Department's 2008 - 2009 reconciliation regarding Volusia County

and the Department's shared costs for secure detention care for

juveniles , and f urther providing that t he Department shall ,

without undue delay , provide a revised assessment to Volusia

County stating that for FY 2008 - 2009:

1. Volusia CountyÓs actual costs of providing

predisposition secure juvenile detention care fo r fiscal year

2008 - 2009 were $1,91 6,409.90 ;

2. Volusia County overpaid the Department $1,822,915 .10 ;

and ,

3. Volusia County is owed an additional credit of

$1,711,874.93 for overpayment .

DONE AND ENTERED this 29th day of October , 201 4 , in

Tallahassee, Leon County, Florida.

S

JAME S H. PETERSON, III

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

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October , 201 4 .

ENDNOTES

1/ Unless otherwise noted, all statutory and rule citations are

to current versions, the substantive provisions of which have

not changed since 2007.

2/ F indings of Fact 1 through 1 8 are derived from the partiesÓ

Stipulated Facts 1 - 18, respectively, filed September 19, 2014.

3 / Transcript of Proceedings, p. 70.

4 / Administrative Law Judge StevensonÓs recommended order in

Miami - Dade County, et al., v. Dep Ót of Juv. Just. , Case No. 10 -

1893, et seq . (Fla. DOAH Aug. 22, 2012) .

COPIES FURNISHED :

Mary G. Jolley, Esquire

Nancye Jones, Esquire

County of Volusia

Room 301

123 West Indiana Avenue

Deland, Florida 32720

(eServed)

Michael John Wheeler, Esquire

Florida Department of Juveni le Justice

2737 Centerview Drive

Tallahassee, Florida 32399

(eServed)

Christina K. Daly , Interim Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 3239 9 - 3100

(eServed)

Brian Berkowitz, General C o unsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 3239 9 - 3100

(eServed)

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