19-000541RU Fernando Luis Viruet vs. Department Of Children And Families Status: Closed DOAH Final Order on Friday, April 12, 2019.

Summary: A private company is not a state agency, and the company's internal memoranda and resident handbook are not "rules" of the Department subject to challenge under 120.56(4).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD C. HOOD, JR. (AKA: ERIKA

DENISE HOOD),

Petitioner,

vs. Case No. 19 - 0539RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

EZRA RAULERSON,

Petitioner,

vs. Case No. 19 - 0540RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

FERNANDO LUIS VIRUET,

Petitioner,

vs. Case No. 19 - 0541RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

____________________ ___________/

JOSEPH C. EVANS, JR.,

Petitioner,

vs. Case No. 19 - 0542RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

WILLIE MCCORD,

Petitioner,

vs. Case No . 19 - 0920RU

DEPARTMENT OF CHILDR EN AND

FAMILIES,

Respondent.

_______________________________/

RICKY GIBSON,

Petitioner,

vs. Case No. 19 - 0977RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

SUMMARY FIN AL ORDER OF DISMISSA L

This matter came on for consideration on March 14, 2019,

without hearing, on the Department's Amended Response to

Petition for Administrative Determination Motion to Dismiss with

Prejudice and Motion for Summary Final Order as to eac h Petition

for Administrative Determination filed herein. The undersigned

has considered Respondent Ó s motion, PetitionersÓ response

thereto, and all matters of record. There is a different

Petitioner in each of the consolidated cases. This Summary

Final Order of Dismissal governs each case consolidated herein.

FINDINGS OF FACT

1. There are no issues of material fact in dispute.

2. Respondent, Department of Chi ldren and Families

(Department), pursuant to section 394.9151, Florida Statutes

(2018 ) , 1/ has contracted with a private entity, Wellpath, LLC

(Wellpath) , to use and operate a facility, Florida Civil

Commitment Center (FCCC), to comply with the requirements of

c hapter 394, p art V (entitled ÐInvoluntary Civil Commitment of

Sexually Violent PredatorsÑ ).

3. Petitioners are persons subject to chapter 394, p art V ,

and are confined in the FCCC.

4. Petitioners allege that the FCCC Resident Handbook and

internal memorandum are unpromulgated rules which are imposed on

FCCC residents, and that the same are a n improper exercise of

delegated legislative authority as de facto agency rules that

have not been adopted pursuant to the rulemaking procedures of

section 120.54(1)(a) , Florida Statutes .

CONCLUSIONS OF LAW

5. Section 120.52(1) defines ÐAgencyÑ as:

(a) T he Governor; each state officer and

state department, and each departmental unit

described in s. 20.04; the Board of

Governors of the State University System;

the Commission on Ethics; the Fish and

Wildlife Conservation Commission; a regional

water supply authority; a regional planning

agency; a multicounty special district, but

only if a majority of its governing board is

comprised of nonelected persons; educational

units; and each entity described in chapters

163, 373, 380, and 582 and s. 186.504.

(b) E ach officer and governmental entity in

the state having statewide jurisdiction or

jurisdiction in more than one county.

(c) Each officer and governmental entity in

the state having jurisdiction in one county

or less than one county, to the extent they

ar e expressly made subject to this chapter

by general or special law or existing

judicial decisions.

This definition does not include a

municipality or legal entity created solely

by a municipality; a legal entity or agency

created in whole or in part pursu ant to

part II of chapter 361; a metropolitan

planning organization created pursuant to

s. 339.175; a separate legal or

administrative entity created pursuant to

s. 339.175 of which a metropolitan planning

organization is a member; an expressway

authori ty pursuant to chapter 348 or any

transportation authority or commission under

chapter 343 or chapter 349; or a legal or

administrative entity created by an

interlocal agreement pursuant to

s. 163.01(7), unless any party to such

agreement is otherwise an agency as defined

in this subsection.

6. Section 120.52(16), in part, defines a ÐRuleÑ as:

ÐRuleÑ means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

require ments of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Int ernal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Ch ief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collect ive bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

7. Section 120.56 (4)(a) provides as follows:

Any person substantially affected by an

agency statement that is an unadopted rule

ma y seek an administrative determination

that the statement violates s. 120.54(1)(a).

The petition shall include the text of the

statement or a description of the statement

and shall state facts sufficient to show

that the statement constitutes an unadopted

rule.

8. Section 394.930 provides as follows:

The Department of Children and Families

shall adopt rules for:

(1) Procedures that must be followed by

members of the multidisciplinary teams when

assessing and evaluating persons subject to

this part;

(2 ) Education and training requirements for

members of the multidisciplinary teams and

professionals who assess and evaluate

persons under this part;

(3) The criteria that must exist in order

for a multidisciplinary team to recommend to

a state attorney t hat a petition should be

filed to involuntarily commit a person under

this part. The criteria shall include, but

are not limited to, whether:

(a) The person has a propensity to engage

in future acts of sexual violence;

(b) The person should be placed in a

secure, residential facility; and

(c) The person needs long - term treatment

and care.

(4) The designation of secure facilities

for sexually violent predators who are

subject to involuntary commitment under this

part;

(5) The components of the bas ic treatment

plan for all committed persons under this

part;

(6) The protocol to inform a person that he

or she is being examined to determine

whether he or she is a sexually violent

predator under this part.

9. Wellpath is not an ÐagencyÑ as defined i n section

120.52(1). See generally Fla. DepÓt of Ins. v. Fla. AssÓn of

Ins. Agents , 813 So. 2d 981 (Fla. 1st DCA 2002); DepÓt of Corr.

v. Adams , 458 So. 2d 354 (Fla. 1st DCA 1984).

10. Wellpath is an independent contractor. The Department

contracted wit h Wellpath in accordance with its statutory

authority under section 394.9151. That the Department enlisted

a private entity , by contract , to operate the FCCC , does not

make the services the private entity employs to implement the

provisions of that contra ct equivalent to agency action. See

Fla. AssÓ n of Ins. Agents , 813 So. 2d at 984. Because Wellpath

is not an ÐagencyÑ under section 120.52(1), the FCCC Resident

Handbook and the memorandum that it utilizes for the internal

operation of the FCCC are there fore not Ð agency statementsÑ

within the meaning of section 120.52(16).

11. Since t he internal memoranda and the FCCC Resident

Handbook are not agency statem ents, and therefore not rules

within the meaning of section 120.52(16), then the same cannot

be sub ject to challenge under sec tion 120.56(4) unless adopted,

endorsed, or approved by the Department. Petitioners do not

allege that the Department has taken any such action with

respect to WellpathÓs internal memoranda or FCCC Resident

Handbook .

12. The ru lemaking authority extended to the Department in

section 394.930 does not extend to the internal memoranda and

policies of a private contractor as authorized by section

394.9151.

13. The respective Petitions claim that WellpathÓs

utilization of the FCCC R esident Handbook constitutes

disciplinary proceedings of retribution and deterrence, in

violation of Article 1, § 9, of the Florida Constitution.

Though not well stated, Petitioners seem to suggest that the

FCCC Resident Handbook and internal memorandum a re depriving

them, in some way, of their procedural due process rights.

While the Division of Administrative Hearings ( DOAH ) does not

have jurisdiction to declare statutes or existing rules

unconstitutional, see Dep Ó t of Bus . Reg . v. Ruff , 592 So. 2d 688

(Fla. 1992), there may be instances where DOAH has authority to

declare a proposed rule unconstitutional. See Dept. of Env.

RegÓl v. Leon Cnt y . , 344 So. 2d 297 (Fla 1st DCA 1977).

However, as commentators have noted, Ðit is not entirely clear

that [DOAH] would have authority to declare agency policy in the

form of an unadopted rule unconstitutional.Ñ Fla . Admin .

Practice § 2 - 42 ( 7th ed. 2004 ) . The predicate to the question,

however, is that there must exist Ðagency policy.Ñ In the

instant case, as note d above, there is no such agency policy in

dispute, and therefore DOAH lacks jurisdiction to address any

constitutional questions that are, in reality, directed

exclusively towards the actions of Wellpath.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that each Petition for Administrative

Determination challenging the FCCC Resident Handbook and

internal memorandum as unadopted rules of the Department of

Children and Families is DISMISSED WITH PREJUDICE , as the

defects i n PetitionersÓ claims cannot be cured by amendment.

DONE AND ORDERED this 12th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 12th day of April , 2019 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2018),

unless otherwise noted.

COPIES FURNISHED:

John Jackson, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Ivory Avant, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Joseph C. Evans, Jr., SVP 990448

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Ro nald C. Hood, Jr., SVP 990304

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Ricky Gibson, SVP 991334

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Willie McCord, SVP 2106510

Florid a Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Ezra Raulerson, SVP 991537

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Fernando Luis Viruet, SVP 990080

Florida Civil Commitment Center

13 619 Southeast Highway 70

Arcadia, Florida 34266

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Administrative Code and Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed )

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Win ewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adver sely affected by this Final Order is

entitled to judicial review pursuant to 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 ad ministrative 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 o f Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.