16-000495 North Broward Health, D/B/A Broward Health vs. Department Of Children And Families Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, February 23, 2016.

there is otherwise no opportunity to challenge the Department's allocation of grant

funding.

Petitioner challenges the ALJ's rejection of the theory of jurisdiction by estoppel,

arguing instead that the inclusion of appeal rights in the Request for Applications (RFA)

and Notice of Intent to Award (NO I) evidence that DCF recognized its actions impacted

Petitioner's substantial interests. Petitioner also asserts that its substantial interests will

be determined by the Department's action, reciting its resulting injury and citing to the

provisions of Specific Appropriation 377K of the 2015 General Appropriations Act

(Specific Appropriation 377K) and Executive Order Nos. 15-134 and 15-175. Petitioner

also asserts a right to a hearing to resolve disputed issues of material fact.

In addition to its exceptions, Petitioner argues that the Department is obliged to

provide it the hearing that was promised in section 4. 7 of the RFA and, if not, to grant it

leave to amend.

1. Exceptions to Findings of Fact in Second and Third Paragraphs (pages 1 and 2)

Petitioner takes exception to the findings of fact set forth in the second and

third paragraphs of the Recommended Order (pages 1 and 2). Petitioner's exceptions

are well-taken to the extent that the ALJ erred in concluding that the Department was

engaged in a procurement. The Department's action in this matter did not involve the

procurement of commodities or contractual services as those terms are defined in

section 287.012, Florida Statutes. However, the ALJ's error is not one of fact but of

law.

The Department's RFA on its face was an implementation of the provisions of

Specific Appropriation 377K. Chapter 287, Florida Statutes, governs the procurement

of commodities and contractual services. Section 287.012(5), Florida Statutes, defines

a "commodity" as any of the various supplies, materials, goods, merchandise, food,

equipment, information technology, and other personal property contracted for by the

state and its agencies. Section 287.012(8), Florida Statutes, defines a "contractual

service" as the rendering by a contractor of its time and effort rather than the furnishing

of specific commodities. In contrast, the Department's action here was to create a

grant program to provide funding for the costs of centralized receiving facilities. Thus,

the Department was simply issuing grants and not procuring commodities or contractual

services.

Thus, while Petitioner's exceptions to the second and third paragraphs are

granted, it is because of an error in law, not an error in fact.

2. Exceptions to Conclusions of Law in the Fifth through Eighth Paragraphs (pages

3 and 4)

Broward Health takes exception to conclusions of law set forth in the fifth through

eighth paragraphs of the Recommended Order (pages 3 and 4). Petitioner's

exceptions overstate the distinction between the facts in USF and this case. The point

in the USF case was not that there is no entitlement to a hearing for an exempt

procurement but that there is no substantial interest in an agency decision in which

there is nothing more than a unilateral expectation of a benefit. 1 As in this case, USF

involved an agency action in which no statute recognized any substantial interests of

the petitioner in the agency's decision. As in USF, Specific Appropriation 377K

provides a potential grantee no more than a unilateral expectation of funding.

1 See also Diaz v. State of Fla., Agency for Health Care Admin., 65 So.3d 78, 82 (Fla. 3rd DCA

2011 ), Herold v. University of South Florida, 806 So.2d 638, 641 (Fla. 2d DCA 2002).

Contrary to Petitioner's argument, the USF case is actually a classic APA

standing case. The original case law establishing the rights of bidders to an APA

proceeding rested on the same principles as applied in USF, that the agency's decision

must affect a petitioner's substantial interests as established by a statute being

implemented by the agency.

In the early years of the modern APA, the First District Court of Appeal held, in

Dickerson Inc. v. Rose, 398 So.2d 922, 926 (Fla. 1st DCA 1981 ), that bidders for low-

bid state agency contracts had standing for a hearing under the APA. The court

reasoned that they had standing because, "it is plain that a determination among

bidders as to the lowest responsible bidder, is a matter of substantial interest." Quoting

Couch Construction Co., Inc. v. Dept. of Transportation, 361 So.2d 184 (Fla. 1st DCA

1978), the court explained, "(T)he right of a bidder for a public contract to a fair

consideration of his bid and his right to an award of the contract if his is the lowest,

responsible bid are matters of 'substantial interest' to him, thus entitling him to a hearing

pursuant to s 120.57 ... "

In comparison, the USF case addressed standing to challenge a procurement

that was exempted from competitive procurement:

To qualify as having a substantial interest, one must show

that he will suffer an injury in fact which is of sufficient

immediacy to entitle him to a hearing and that this injury is of

the type or nature which the proceeding is designed to

protect. Royal Palm Square Ass'n v. Sevco Land Corp., 623

So.2d 533 (Fla. 2d DCA 1993); Agrico Chern. Co. v. Dep't of

Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).For

these purposes a substantial interest is something more

than a mere unilateral expectation of receiving a benefit See

Fertally v. Miami-Dade Cmty. Col/., 651 So.2d 1283 (Fla. 3d

DCA 1995) (holding that nonrenewal of community college

professor's annual contract did not affect her substantial

interests for purposes of section 120.57); Metsch v. Univ. of

Fla., 550 So.2d 1149 (Fla. 3d DCA 1989) (holding

applicant's desire to attend law school was not a substantial

interest entitling him to a section 120.57 hearing upon denial

of his application) ....

Univ. of S. Fla. Col/. of Nursing v. State Dep't of Health, 812 So.2d 572, 574 (Fla.

2d DCA 2002).

Thus, under Dickerson v. Rose, a disappointed bidder has a substantial interest in an

award subject to competitive bidding requirements because it has a statutory right to an

award of the contract if his is the lowest, responsible bid, but under USF, there is no

substantial interest in an award exempted from such requirement, because the "bidder"

merely has a unilateral expectation of a benefit.

Notably, a disappointed bidder must still prove its standing to pursue a particular

bid protest. For example, a protestor challenging an award to another bidder must

prove that, but for the agency's errors, it would have been awarded the contract. See

Preston Carrol Co., Inc. v. Fla. Keys Aqueduct Auth., 400 So. 2d 524, 525 (Fla. 3d DCA

1981). Thus, statutory entitlement remains a governing principle in determining

whether a substantial interest is affected under sections 120.569 and 120.57, Florida

Statutes.

Broward Health's exceptions to the conclusions of law set forth in the fifth

through eighth paragraph are denied.

3. Exceptions to Conclusions of Law in the Ninth Paragraph (page 4)

Broward Health takes exception to the conclusions of law set forth in the ninth

paragraph of the Recommended Order (page 4), which provides:

Another case suggests an alternative path to the

same result. In Palm Beach County Classroom Teachers

Association v. School Board of Palm Beach County. 406 So.

2d 1208 (Fla. 4th DCA 1981), the legislature appropriated

additional funds for school boards, primarily to supplement

the salaries of teachers. The teachers union demanded a

hearing under section 120.57(1) on the allocation of the

funds, and the school board denied the request. The court

affirmed, holding that the matter in dispute fell within the

"agency budgets" statutory exception to a rule--now, section

120.52(16)(c)1.--and thus the statutory exception to a final

order--now, section 120.52(7)--so that the union was not

entitled to a hearing under section 120.57.

Broward Health's exception is well-taken to the extent that the ALJ relied on

Palm Beach County Classroom Teachers Association v. School Board of Palm Beach

County, 406 So. 2d 1208 (Fla. 4th DCA 1981), which involved an express statutory

exemption to an agency decision from the definition of an order or rule. However, as

further discussed below, the APA's policy of providing a forum to challenge agency

decisions is predicated upon a showing of standing. It is not to provide a hearing to

anyone simply aggrieved.

4. Exceptions to Conclusions of Law in the Tenth Paragraph (pages 4-5)

Broward Health takes exception to the conclusions of law set forth in the tenth

paragraph of the Recommended Order (pages 4-5). Petitioner's exception is well-taken

to the extent that the ALJ erred in describing this case as involving a procurement.

However, Petitioner's argument that inclusion of a notice of appeal rights in the RFA

and NOI acknowledged its substantial interests is misplaced. Petitioner's claim

contradicts the APA which requires every agency to provide notice of a point of entry to

challenge its decisions and places the burden on the petitioner responding to that

notice to explain how its substantial interests are affected and that there are statutes

and rules that entitle them to relief.

Agencies are required to provide notice to affected parties of a point of entry to

challenge their decisions. 2 This is exactly what the notice of appeal rights in the RFA

and the NOI did. Yet, the APA also requires every petitioner relying on such clear point

of entry to allege and prove facts and law showing that their substantial interests are

affected by the agency decision and that there are statutes and rules that entitle the

petitioner to relief. 3 The Legislature made clear in the 1998 amendments to section

120.54(5)(b)4., Florida Statutes, that an agency's notice of a point of entry does not

constitute an agency acknowledgement that substantial interests are affected 4 Under

the APA and the Uniform Rules, the burden was on Petitioner to allege and prove how

its substantial interests were affected and that there are statutes and rules that entitled

it to relief. 5

Petitioner cites Tuckman v. Fla. State Univ., 489 So. 2d 133, 135 (Fla. 1st DCA

1986), but that case provides no guidance and is superseded by legislation to the

2 See Gopman v. Deparlment of Education, State of Fla., 908 So.2d 1118 (Fla. 1st DCA 2005),

("[A]n agency must grant affected parties a clear point of entry") quoting Cape/etti Bros., Inc. v.

State, Dep't of Transp., 362 So.2d 346, 348 (Fla. 1st DCA 1978). See also Burleson v.

Deparlment of Administration, 410 So.2d 581, 583 (Fla. 1st DCA 1982).

3 See section 120.54(5)(b)4., Florida Statutes (2015).

4 See section 3, Chapter 98-200, Laws of Florida. Rule 28-106.201(2), Florida Administrative

Code, was amended in 1998 to implement those requirements.

5 See Deparlment of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1053 (Fla.

1st DCA 1979), citing Agrico Chemical Co., eta/. v. State of Florida, Deparlment of

Environmental Regulation, eta/., 365 So.2d 759 (Fla. 1st DCA 1978). See also Young v. Dept.

of Comly. Affairs, 625 So.2d 831, 833-34 (Fla. 1993). (The general rule is that, apart from

statute, the burden of proof is on the party asserting the affirmative of an issue before an

administrative tribunal.") citing Balino v. Deparlment of Health & Rehabilitative Servs., 348

So.2d 349 (Fla. 1st DCA 1977).

extent it stands for the proposition offered by Petitioner. 6 Tuckman is silent on the

timing of the university's offer of an informal hearing to Tuckman, but it seems more

plausible that it was made after Tuckman submitted his request for "a due process

hearing." 7 Moreover, the thrust of the Tuckman case was that an agency's

acknowledgment of standing for an informal hearing was an acknowledgment of

standing for a formal hearing as well. Nevertheless, Tuckman predated the 1998

amendment to the APA and the Uniform Rules, requiring petitioners to specifically

allege how their substantial interests are affected and that there are statutes and rules

that entitle them to relief.

The Department includes a Notice of Appeal Rights in its RFA's for grant funding

as a matter of practice, because it some of its grant programs are prescribed by

statutes that expressly require competitive or comparative awards and specify statutory

criteria for making such awards. For example, section 414.161 (2), Florida Statutes,

mandates a competitive ranking of grant applicants and lists specific award criteria.

The Department had adopted a practice of including a standard notice of appeal rights

in an RFA and NOI for its grant programs because a petitioner might be able to allege

facts and law sufficient to show standing and it would be inappropriate to foreclose such

an opportunity from the outset. In retrospect it may well have been inappropriate to

include a Notice of Appeal Rights in the RFA in this case, as there are no competitive or

6 See section 3, Chapter 98-200, Laws of Florida. To the extent that Tuckman can be read as

implying that a mere notice of appeal rights acknowledges standing, that implication has been

superseded by that legislation.

7 Notably, /azzo v. Oep't of Prof'/ Reg., Bd. of Psychological Exam'rs, 638 So.2d 583, 586 (Fla.

1st DCA 1994), which paraphrased Tuckman, made clear that the offer of an informal hearing

was made after lazzo had filed his a request for formal hearing.

comparative terms in the language of Specific Appropriation 377K. Nevertheless, the

notice of appeal rights is simply form language.

Petitioner's exception is granted to the extent that the ALJ erred in describing

this case as involving a procurement, but is otherwise denied. Notice of a point of entry

is not an acknowledgment of a petitioner's substantial interests in an agency's decision.

By statute, rule and case law, the burden to show standing remains on Petitioners

responding to any agency's notice of a point of entry.

5. Exceptions to Conclusions of Law in the Eleventh Paragraph (page 5)

Petitioner takes exception to the conclusions of law set forth in the eleventh

paragraph of the Recommended Order (page 5). Petitioner's exception is well-taken to

the extent that the ALJ incorrectly characterized this case as involving a procurement.

However, Petitioner's assertion that it is entitled to a hearing pursuant to sections

120.569 and 120.57(1), Florida Statutes, fails to acknowledge its statutory burden to

explain how its substantial interests were determined by the Department. Sections

120.569 and 120.57(1), Florida Statutes, do not themselves confer standing. They

merely provide for the potential of standing to seek a hearing. See Diaz v. State of Fla.,

Agency for Health Care Admin., 65 So.3d 78, 82 (Fla. 3'd DCA 2011), (Section

120.57(1) provides for a full evidentiary hearing before an administrative law judge

when an agency's determinations affect a party's substantial interests).

Injury alone is insufficient to establish a substantial interest, and thus the right to

a hearing. The injury must be of the type that the statute pursuant to which the agency

has acted is designed to protect (/d.). See also Sch. Bd. of Palm Beach Cnty. v.

Survivors CharterSch., Inc., 3 So.3d 1220, 1231 (Fla. 2009), (A party's substantial

interests are involved "where '(1) the proposed action will result in injury-in-fact which is

of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the

statute pursuant to which the agency has acted is designed to protect." (quoting

Fairbanks, Inc. v. State, Dep't of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994).

In this case, the Department is implementing Specific Appropriation 377K. That

Specific Appropriation makes no reference to Executive Orders 15-134 or 15-175 and

neither of those Executive Orders (which are neither statutes nor laws) refer to funding

centralized receiving facilities. Petitioner was therefore obliged to show that the

Department's grant decision will result in injury to Petitioner and that such injury is of

the type that Specific Appropriation 377K was designed to protect. 8

Petitioner has on three separated occasions explained how its substantial

interests will be affected by the Departments' determination. First, Petitioner's request

for an administrative hearing, received January 5, 2016, provided the following

explanation of how its substantial interests will be affected by the Departments'

determination:

Broward Health is the safety-net provider for the northern

two-thirds of Broward County. This project will serve the

entirety of Broward County, the second most populous

county in the state, which covers 1 ,220 square miles and

has a population of more than 1.8 million. Within the county,

lies a high need for addressing recidivism for mental health,

as well as the epicenter for the Flakka epidemic. Broward

"Petitioner's citation to Peace River Center for Personal Development, Inc. vs. Dept' of Legal

Affairs, DOAH Case No. 94-4048 (Jan. 26, 1995}, is inapposite, as there is no information in the

Recommended Order as to the statutory or other basis for the grant at issue, and there is

actually no ruling on standing. The statement quoted by Petitioner is a standard statement that

appears in practically every recommended order issued by an Administrative Law Judge,

including those that find a lack of standing. See paragraph 97 in Little Havana Activities and

Nutrition Centers of Dade County, Inc. vs. Agency for Health Care Administration, DOAH Case

13-0706810 (Recommended Order, May 15, 2013).

County was noted in the Governor's Executive Orders 15-

134 and 15-175 as needing measures to impact recidivism

and as a site to pilot supporting individuals with mental

health needs before being committed to custody or

supervision of the state. Broward Health's application is

supported by key organizations in Broward County. These

organizations are creating a collaborative network to

enhance the delivery of mental health and substance abuse

services, as well as improve the care and long term

outcomes for patients who require these needed services.

The agency's determination will affect Broward Health's

substantial interests by providing the needed funding to

create a central receiving facility and an enhanced

collaborative system of care for the residents of Broward

who are in need of these critical mental health services.

The foregoing explains how the Department's determination will provide the needed

funding to create a central receiving facility and an enhanced collaborative system of

care for Broward residents. It does not allege an injury to Petitioner or how that injury

was of the type that a statute pursuant to which the Department has acted is designed

to protect.

Second, Petitioner's response to the ALJ's January 29, 2016, Order to Show

Cause provided the following explanation of how its substantial interests will be affected

by the Departments' determination:

10. Broward Health's substantial interests will be determined

by the agency action at issue, as the Department's action

will result in certain entities receiving full funding, while

Broward Health is provided only very limited funding with

which to accomplish the important state purposes intended

by the legislative appropriation. Broward Health seeks, via

this proceeding, to demonstrate that the Department's grant

funding actions are not consistent with (1) the intent of the

Legislature as demonstrated by the appropriation, (2)

Executive Orders 15-134 and 15-175, and (3) the

Department's Request for Applications. If Broward Health is

not permitted to challenge the Department's intended action,

it will suffer an injury in fact, as it will be providing services to

the State without adequate funding. This injury is of the type

which this administrative proceeding is designed to protect,

as the Department itself has recognized by including within

the Request for Applications, and in its Notice of Intent, a

notice of chapter 120 rights. See, e.g., Agrico Chem. Co. v.

Dep't of Envtl. Regulation, 406 So. 2d 478 (Fla. 2d DCA

1981); see .also Peace River Center for Personal

Development, Inc. v. Dep't of Legal Affairs, Bureau of

Advocacy & Grants, DOAH Case No. 94-4048 (Rec. Order

Jan. 26, 1995) (administrative proceeding reviewing

agency's denial of grant funding).

Third, in its exceptions, Petitioner repeated the above-quoted explanation of how its

substantial interests will be affected by the Departments' determination.

The injury alleged by Petitioner in these last two submittals is that it will be

"providing services to the State without adequate funding." However, the above quoted

allegations do not explain how Specific Appropriation 377K was designed to protect the

interests of an applicant "providing services to the State without adequate funding."

Petitioner cannot point to any language of Specific Appropriation 377K that

prescribes a competitive process, comparative award or expresses an intent to fund or

even prefer any particular type or location of facility. The only intent expressed in

Specific Appropriation 377K is for the Department to undertake a statewide initiative to

fund centralized receiving facilities designed for individuals needing evaluation or

stabilization under section 394.463 or section 397.675, Florida Statutes, or crisis

services as defined in subsections 394.67(17)-(18), Florida Statutes. The language of

Specific Appropriation 377K requires the Department to create a program to provide

funding for the costs of centralized receiving facilities, for which a local agency may

apply after the Department has approved its operational and financial plan, with each

award to be matched at a one-to-one ratio of state and local funds.

There is no requirement in Specific Appropriation 377K that the Department

publicly solicit applications or conduct a competitive or even comparative review of

applicants. There is no reference to partial or full funding. The only criteria for funding

are Department approval of a local agency's operational and financial plan that

specifies methods of coordination among providers and identifies proposed uses of the

grant funds, that an award be matched at a one-to-one ratio of state and local funds,

and that funding may be used to support start-up or on-going operational costs of

centralized receiving facilities that provide the services described in the Specific

Appropriation.

There is nothing to be gleaned from the language of Specific Appropriation 377K

showing an intent to protect Petitioner from the type of injury that it has alleged. As in

USF, the Department's implementation of Special Appropriation 477K was an agency

decision to expend funds where no statute provided an applicant any entitlement to any

funding, any particular application process, award process or award criteria.

6. Exceptions to Conclusions of Law in the Twelfth and Thirteenth Paragraphs

(pages 5-7)

Broward Health takes exception to the conclusions of law set forth in the

eleventh paragraph of the Recommended Order (pages 5-7). Petitioner's contention

that dismissal would deprive it of its statutorily created right to a hearing fails to

recognize that it must first meet its burden to allege how its substantial interests are

affected by the agency's decision and that there are statutes and rules that entitle it to

relief. 9 As discussed, it cannot meet the two-pronged standing test and, therefore, it

has failed to establish a statutory right to proceed to hearing.

9 Petitioner cites to Burleson v. Department of Administration, 410 So.2d 581 (Fla. 1st DCA

1982}, to support its right to a hearing. However, in this case, there are no disputed issues of

material fact affecting standing. The nature of the Department's action is defined by Specific

Appropriation 377K, the Department's RFA and NOI are matters of record and Petitioner has

(footnote cont.)

Petitioner's Entitlement to Exercise the Appeal Rights Guaranteed by the

Department

In addition to its exceptions to specific portions of the Recommended Order of

Dismissal, Petitioner has included an argument that the Department may not deprive it

of the appeal rights it has promised. In this argument, Petitioner quotes the introductory

paragraph of section 4. 7 of the RFA. That paragraph includes the phrase "as described

below," which is an unavoidable reference to the balance of the section 4. 7, which

makes clear that any "appeal" was subject to specific pleading requirements, including

the requirement (per section 120.54(5)(b)4., Florida Statutes, that Petitioner first meet

its burden to allege how its substantial interests are affected by the agency's decision

and that there are statutes and rules that entitle it to relief.

Section 4.7 of the RFA only "promises" that Petitioner can ask for a hearing but,

in order to obtain one, it must demonstrate standing. There is no promise that it will get

a hearing. The requirement to provide an explanation of how the petitioner's substantial

interests will be affected by the agency determination is a clear reference to the APA

standing test, which required that Petitioner show an injury in fact that Specific

Appropriation 377K was designed to protect.

----------(footnote cont.)

three times explained how the Department's action affects its substantial interests. There may

be disputed facts over the wisdom of the Department's decision, but those are only heard if

standing is established. Friends of the Hatchineha, Inc. v. State Dep't of Envtl. Regulation, 580

So.2d 267 (Fla. 1st DCA 1991), stands for the proposition that the APA grants the right to

challenge agency decisions to those who have standing to do so. In that case, the Court noted

that no contention had been raised that Friends did not have standing to contest the agency's

decision.

Petitioner cites to Citizens of Fla. v. Mayo, 333 So. 2d 1, 7 (Fla. 1976), but

· Citizens involved rulings in a formal utility rate proceeding after intervention had been

granted and public hearings had been set. Here, no administrative proceeding had yet

been initiated by the Department, there was no "promise" of a hearing to Petitioner, and

the only process described by the Department required Petitioner to meet its burden to

show standing under the APA. Petitioner is not entitled to a hearing unless it meets

that burden.

Finally, Petitioner requests leave to amend its petition, which effectively admits

both, that it has yet to demonstrate standing, and that the Department has not yet

actually acknowledged its standing. However, for the reasons stated in this Order, it is

determined that, instead, the Petition should be dismissed without leave to amend

because it conclusively appears from the face of the petition and Petitioner's other

pleadings that the defect cannot be cured. Petitioner has already explained three

separate times how its substantial interests are affected by the Department's decision.

In the last two, the explanation was provided in response to a clear notice that its

entitlement to a hearing was at issue. Simply put, Petitioner's substantial interests are

not affected by the Department's action because its injury is not of the type that Specific

Appropriation 377K was designed to protect. At best, Petitioner had a unilateral

expectation of an award, which is insufficient to establish standing under sections

120.569 and 120.57, Florida Statutes.

The Recommended Order

The first paragraph of the recommended order is approved and incorporated

herein. The remaining paragraphs of the Recommended Order and their conclusions of

law are modified by the following paragraphs, which I find to be as or more reasonable

than those which were modified and are approved:

As the parties agree, this case does not involve the procurement of

commodities or contractual services as defined by section 287.012,

Florida Statutes, but implementation of a matching grant program

governed by Specific Appropriation 377K of the 2015 General

Appropriations Act (Specific Appropriation 377K). Petitioner contends that

it is entitled to a formal hearing because its substantial interests were

affected by the Department's action as reflected in the NOI and because it

was promised an appeal process in the Request for Applications (RFA).

Petitioner's exceptions are well-taken to the extent that the ALJ

erred in concluding that the Department was engaged in a procurement.

The Department's action in this matter did not involve the procurement of

commodities or contractual services as those terms are defined in section

287.012, Florida Statutes. The ALJ erred as a matter of law in concluding

that the Department was engaged in a procurement.

The ALJ erred as a matter of law in concluding that the Department

was engaged in a procurement. The Department's RFA on its face was

an implementation of the provisions of Specific Appropriation 377K.

Chapter 287, Florida Statutes, governs the procurement of commodities

and contractual services. The Department's decision here was to create a

grant program to provide funding for the costs of centralized receiving

facilities. Thus, the Department was simply issuing funding facilities and

not procuring commodities or contractual services.

Sections 120.569 and 120.57(1), Florida Statutes, do not

themselves confer standing. They merely provide for the potential of

standing to seek a hearing. Injury alone is insufficient to establish a

substantial interest, and thus the right to a hearing. The injury must be of

the type that the statute pursuant to which the agency has acted is

designed to protect (/d.). See also Sch. Bd. of Palm Beach Cnty. v.

Survivors Charter Sch., Inc., 3 So.3d 1220, 1231 (Fla. 2009), (A party's

substantial interests are involved "where '(1) the proposed action will

result in injury-in-fact which is of sufficient immediacy to justify a hearing;

and (2) the injury is of the type that the statute pursuant to which the

agency has acted is designed to protect."

In this case, the Department is implementing Specific Appropriation

377K:

377K SPECIAL CATEGORIES

GRANTS AND AIDS- CENTRAL RECEIVING FACILITIES

FROM GENERAL REVENUE FUND ..... 10,000,000

From the funds in Specific Appropriation 377K, the recurring

sum of $10,000,000 from the General Revenue Fund is

provided for a statewide initiative to fund centralized

receiving facilities designed for individuals needing

evaluation or stabilization under section 394.463 or section

397.675, Florida Statutes, or crisis services as defined in

subsections 394.67(17)-(18), Florida Statutes. The

Department of Children and Families shall create a matching

grant program to provide funding for the costs of a

centralized receiving facility. Each award must be matched

at a one-to-one ratio of state and local funds. The funding

may be used to support start-up or on-going operational

costs. Centralized receiving facilities provide a single point of

entry for multiple behavioral health providers, conduct initial

assessments and triage, and provide case management and

related services, including jail diversion programs for

individuals with mental health or substance abuse disorders.

The department shall work with local agencies to encourage

and support the development of centralized receiving

facilities. A local agency may apply for grant funds after the

department has approved its operational and financial plan

that specifies methods of coordination among providers and

identifies proposed uses of the grant funds.

The foregoing language makes no reference to Executive Orders 15-134

or 15-175 and neither of those Executive Orders (which are neither

statutes nor laws) refer to funding centralized receiving facilities.

Petitioner was therefore obliged to show that the Department's grant

decision will result in injury to Petitioner and that such injury is of the type

that Specific Appropriation 377K was designed to protect.

Petitioner has on three separated occasions explained how its

substantial interests will be affected by the Departments' determination.

First, Petitioner's request for an administrative hearing, received January

5, 2016, provided the following explanation of how its substantial interests

will be affected by the Departments' determination:

Broward Health is the safety-net provider for the northern

two-thirds of Broward County. This project will serve the

entirety of Broward County, the second most populous

county in the state, which covers 1 ,220 square miles and

has a population of more than 1.8 million. Within the county,

lies a high need for addressing recidivism for mental health,

as well as the epicenter for the Flakka epidemic. Broward

County was noted in the Governor's Executive Orders 15-

134 and 15-175 as needing measures to impact recidivism

and as a site to pilot supporting individuals with mental

health needs before being committed to custody or

supervision of the state. Broward Health's application is

supported by key organizations in Broward County. These

organizations are creating a collaborative network to

enhance the delivery of mental health and substance abuse

services, as well as improve the care and long term

outcomes for patients who require these needed services.

The agency's determination will affect Broward Health's

substantial interests by providing the needed funding to

create a central receiving facility and an enhanced

collaborative system of care for the residents of Broward

who are in need of these critical mental health services.

The foregoing explains how the Department's determination will provide

the needed funding to create a central receiving facility and an enhanced

collaborative system of care for Broward residents. It does not allege an

injury to Petitioner or how that injury was of the type that a statute

pursuant to which the Department has acted is designed to protect.

Second, Petitioner's response to the ALJ's January 29, 2016,

Order to Show Cause provided the following explanation of how its

substantial interests will be affected by the Departments' determination:

10. Broward Health's substantial interests will be determined

by the agency action at issue, as the Department's action

will result in certain entities receiving full funding, while

Broward Health is provided only very limited funding with

which to accomplish the important state purposes intended

by the legislative appropriation. Broward Health seeks, via

this proceeding, to demonstrate that the Department's grant

funding actions are not consistent with (1) the intent of the

Legislature as demonstrated by the appropriation, (2)

Executive Orders 15-134 and 15-175, and (3) the

Department's Request for Applications. If Broward Health is

not permitted to challenge the Department's intended action,

it will suffer an injury in fact, as it will be providing services to

the State without adequate funding. This injury is of the type

which this administrative proceeding is designed to protect,

as the Department itself has recognized by including within

the Request for Applications, and in its Notice of Intent, a

notice of chapter 120 rights. See, e.g., Agrico Chern. Co. v.

Dep't of Envtl. Regulation, 406 So. 2d 478 (Fla. 2d DCA

1981 ); see also Peace River Center for Personal

Development, Inc. v. Dep't of Legal Affairs, Bureau of

Advocacy & Grants, DOAH Case No. 94-4048 (Rec. Order

Jan. 26, 1995) (administrative proceeding reviewing

agency's denial of grant funding).

Third, in its exceptions, Petitioner repeated the above-quoted explanation

of how its substantial interests will be affected by the Departments'

determination.

The injury alleged by Petitioner in these last two submittals is that it

will be "providing services to the State without adequate funding."

However, there is nothing to be gleaned from the language of Specific

Appropriation 377K showing an intent to protect Petitioner from the type of

injury that it has alleged. The intent expressed in Specific Appropriation

377K is for the Department to undertake a statewide initiative to fund

centralized receiving facilities designed for individuals needing evaluation

or stabilization under section 394.463 or section 397.675, Florida

Statutes, or crisis services as defined in subsections 394.67(17)-(18),

Florida Statutes. The language of Specific Appropriation 377K requires

the Department to create a create a matching grant program to provide

funding for the costs of a centralized receiving facility, for which a local

agency may apply after the Department has approved its operational and

financial plan, with each award to be matched at a one-to-one ratio of

state and local funds.

There is no requirement in Specific Appropriation 377K that the

Department publicly solicit applications or conduct a competitive or even

comparative review of applicants. There is no reference to partial or full

funding. The only criteria for funding are Department approval of a local

agency's operational and financial plan that specifies methods of

coordination among providers and identifies proposed uses of the grant

funds, that an award be matched at a one-to-one ratio of state and local

funds, and that funding may be used to support start-up or on-going

operational costs of centralized receiving facilities that provide certain

services. It is apparent from the face of Specific Appropriation 377K that

the injury alleged by Petitioner is not of the type that Specific

Appropriation 377K is designed to protect.

The inclusion of a notice of appeal rights in the RFA and NOI was

neither an acknowledgement of Petitioner's standing nor a promise of a

hearing. Notice of a point of entry is not an acknowledgment of a

petitioner's substantial interests in an agency's decision, but a notice

required by law. 10 The notice of appeal rights included in the RFA and

NOI was simply form language. At most, it was an offer of a remedy

under chapter 120, Florida Statutes; but the offer clearly required

Petitioner to meet the standing requirements set forth in chapter 120,

Florida Statutes. The APA's policy of providing a forum to challenge

agency decisions is predicated upon a showing of standing; it is not to

provide a hearing to anyone simply aggrieved. By statute, rule and case

law, the burden to show standing remains on Petitioners responding to

10 See Gopman v. Department of Education, State of Fla., 908 So.2d 1118 (Fla. 1st DCA 2005),

Burleson v. Department of Administration, 410 So.2d 581,583 (Fla. 1st DCA 1982), and

Capeletti Bros., Inc. v. State, Dep't of Transp., 362 So.2d 346, 348 (Fla. 1st DCA 1978).

any agency's notice of a point of entry. 11 As discussed above, i!has faUE;td

to meet Its burden.

It is. not appropriate to allow amendment of th!'l request for hearing,

a$ it conclu$ively appEf:!ars from the face of that request and Petitioner's

subsequent pleadings that the defe.ctcannot be pured. Petitioner has

already explained. three separate times how Its substantial interest$ are

affePted by the Department's decision. In the last fwo, the explanation

was in response to a clear notice that its entitlement to a nearing

was at issue. SirnpJy pul, PetitiQ,her's .sul;>stantial interests are not affe.cted

by the Departmenttsaction because its inJllry'isnot.ofttletype!hat

Specific Appropriation 377K was designed to protect. At best, Petition!'lr

had a .unilateral expectation of an award, which is insufficient to e.stablish

standing under se.ctions.120.569.and 120:67, Florida Statute.s.

Aooordingly, the RecommendEfd Order is I!Jpprol/eo and adopted as modified apd

petitioner's requesUor an rildministratil/e hearing is DISMISSI;D with

DONE AN? ORDERED atTalfahassee, Leon County, Florida, of

In a.l'?'L ' 201.6.

Mike Carro.ll, Secretacy

11 See Department.of Heralth and Rehabilitative Services v. Alice P., 367So.2d 1045, 1 053

(Fla. 1 s.t DCA 1979), ancf Agrico Ghemicsl ea,. efi,ll, v. State of Flori(ja, Ptmaffment of

Regulatipn, eta/., 3p5.So.2!l 7$9 (Fla. 1st DCA 197fH. See ah:;o You11g v. Dti!pt.

of Comty. Affairs, 625 So:.2d 831, 833"'.34 (Fla. 1993), and Balino v. Department of Health &

Rehabilitative Servs., 348 So.2d 349 (Fla. 1st DCA 1977).

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY

A PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES

9.110AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH APPEAL

IS INSTITUTED BYFILING ONE COPY OF A NOTICE OF APPEAL WITH THE

AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AND A

SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, IN THE

DISTRICT COURT OF APPEAL WHERE THE PARTY RESIDES OR IN THE FIRST

DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL MUST 12 BE FILED

(RECEIVED) WITHIN 30 DAYS OF RENDITION OF THIS ORDER.

Copies furnished to the following via U.S. Mail on date of Rendition of this Order.

Lynn Soon Hewitt, Esquire James A. McKee, Esquire

Department of Children and Families Foley and Lardner, LLP

Building 2, Room 2040 106 East College Avenue, Suite 900

1317 Winewood Boulevard Tallahassee, Florida 32301

Tallahassee, Florida 32399

Claudia Llado, Clerk

Jean A. Costa, Esquire Division of Administrative Hearings

Department of Children and Families Thee DeSoto Building

201 West Broward Boulevard, Suite 504 1230 Apalachee Pkwy

Fort Lauderdale, Florida 33311 Tallahassee, FL 32399-3060

Agency Clerk

12 The date of the "rendition" of this Order is the date that is stamped on its first page.