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


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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).

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8RONALD C. HOOD, JR. (AKA: ERIKA

14DENISE HOOD),

16Petitioner,

17vs. Case No. 19 - 0539RU

23DEPARTMENT OF CHILDREN AND

27FAMILIES,

28Respondent.

29_______________________________/

30EZRA RAULERSON,

32Petitioner,

33vs. Case No. 19 - 0540RU

39DEPARTMENT OF CHILDREN AND

43FAMILIES,

44Respondent.

45_______________________________/

46FERNANDO LUIS VIRUET,

49Petitioner,

50vs. Case No. 19 - 0541RU

56DEPARTMENT OF CHILDREN AND

60FAMILIES,

61Respondent.

62____________________ ___________/

64JOSEPH C. EVANS, JR.,

68Petitioner,

69vs. Case No. 19 - 0542RU

75DEPARTMENT OF CHILDREN AND

79FAMILIES,

80Respondent.

81_______________________________/

82WILLIE MCCORD,

84Petitioner,

85vs. Case No . 19 - 0920RU

92DEPARTMENT OF CHILDR EN AND

97FAMILIES,

98Respondent.

99_______________________________/

100RICKY GIBSON,

102Petitioner,

103vs. Case No. 19 - 0977RU

109DEPARTMENT OF CHILDREN AND

113FAMILIES,

114Respondent.

115_______________________________/

116SUMMARY FIN AL ORDER OF DISMISSA L

123This matter came on for consideration on March 14, 2019,

133without hearing, on the Department's Amended Response to

141Petition for Administrative Determination Motion to Dismiss with

149Prejudice and Motion for Summary Final Order as to eac h Petition

161for Administrative Determination filed herein. The undersigned

168has considered Respondent Ó s motion, PetitionersÓ response

176thereto, and all matters of record. There is a different

186Petitioner in each of the consolidated cases. This Summary

195Final Order of Dismissal governs each case consolidated herein.

204FINDINGS OF FACT

2071. There are no issues of material fact in dispute.

2172. Respondent, Department of Chi ldren and Families

225(Department), pursuant to section 394.9151, Florida Statutes

232(2018 ) , 1/ has contracted with a private entity, Wellpath, LLC

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

252Commitment Center (FCCC), to comply with the requirements of

261c hapter 394, p art V (entitled ÐInvoluntary Civil Commitment of

272Sexually Violent PredatorsÑ ).

2763. Petitioners are persons subject to chapter 394, p art V ,

287and are confined in the FCCC.

2934. Petitioners allege that the FCCC Resident Handbook and

302internal memorandum are unpromulgated rules which are imposed on

311FCCC residents, and that the same are a n improper exercise of

323delegated legislative authority as de facto agency rules that

332have not been adopted pursuant to the rulemaking procedures of

342section 120.54(1)(a) , Florida Statutes .

347CONCLUSIONS OF LAW

3505. Section 120.52(1) defines ÐAgencyÑ as:

356(a) T he Governor; each state officer and

364state department, and each departmental unit

370described in s. 20.04; the Board of

377Governors of the State University System;

383the Commission on Ethics; the Fish and

390Wildlife Conservation Commission; a regional

395water supply authority; a regional planning

401agency; a multicounty special district, but

407only if a majority of its governing board is

416comprised of nonelected persons; educational

421units; and each entity described in chapters

428163, 373, 380, and 582 and s. 186.504.

436(b) E ach officer and governmental entity in

444the state having statewide jurisdiction or

450jurisdiction in more than one county.

456(c) Each officer and governmental entity in

463the state having jurisdiction in one county

470or less than one county, to the extent they

479ar e expressly made subject to this chapter

487by general or special law or existing

494judicial decisions.

496This definition does not include a

502municipality or legal entity created solely

508by a municipality; a legal entity or agency

516created in whole or in part pursu ant to

525part II of chapter 361; a metropolitan

532planning organization created pursuant to

537s. 339.175; a separate legal or

543administrative entity created pursuant to

548s. 339.175 of which a metropolitan planning

555organization is a member; an expressway

561authori ty pursuant to chapter 348 or any

569transportation authority or commission under

574chapter 343 or chapter 349; or a legal or

583administrative entity created by an

588interlocal agreement pursuant to

592s. 163.01(7), unless any party to such

599agreement is otherwise an agency as defined

606in this subsection.

6096. Section 120.52(16), in part, defines a ÐRuleÑ as:

618ÐRuleÑ means each agency statement of

624general applicability that implements,

628interprets, or prescribes law or policy or

635describes the procedure or practice

640require ments of an agency and includes any

648form which imposes any requirement or

654solicits any information not specifically

659required by statute or by an existing rule.

667The term also includes the amendment or

674repeal of a rule. The term does not

682include:

683(a) Int ernal management memoranda which do

690not affect either the private interests of

697any person or any plan or procedure

704important to the public and which have no

712application outside the agency issuing the

718memorandum.

719(b) Legal memoranda or opinions issued to

726an agency by the Attorney General or agency

734legal opinions prior to their use in

741connection with an agency action.

746(c) The preparation or modification of:

7521. Agency budgets.

7552. Statements, memoranda, or instructions

760to state agencies issued by the Ch ief

768Financial Officer or Comptroller as chief

774fiscal officer of the state and relating or

782pertaining to claims for payment submitted

788by state agencies to the Chief Financial

795Officer or Comptroller.

7983. Contractual provisions reached as a

804result of collect ive bargaining.

8094. Memoranda issued by the Executive Office

816of the Governor relating to information

822resources management.

8247. Section 120.56 (4)(a) provides as follows:

831Any person substantially affected by an

837agency statement that is an unadopted rule

844ma y seek an administrative determination

850that the statement violates s. 120.54(1)(a).

856The petition shall include the text of the

864statement or a description of the statement

871and shall state facts sufficient to show

878that the statement constitutes an unadopted

884rule.

8858. Section 394.930 provides as follows:

891The Department of Children and Families

897shall adopt rules for:

901(1) Procedures that must be followed by

908members of the multidisciplinary teams when

914assessing and evaluating persons subject to

920this part;

922(2 ) Education and training requirements for

929members of the multidisciplinary teams and

935professionals who assess and evaluate

940persons under this part;

944(3) The criteria that must exist in order

952for a multidisciplinary team to recommend to

959a state attorney t hat a petition should be

968filed to involuntarily commit a person under

975this part. The criteria shall include, but

982are not limited to, whether:

987(a) The person has a propensity to engage

995in future acts of sexual violence;

1001(b) The person should be placed in a

1009secure, residential facility; and

1013(c) The person needs long - term treatment

1021and care.

1023(4) The designation of secure facilities

1029for sexually violent predators who are

1035subject to involuntary commitment under this

1041part;

1042(5) The components of the bas ic treatment

1050plan for all committed persons under this

1057part;

1058(6) The protocol to inform a person that he

1067or she is being examined to determine

1074whether he or she is a sexually violent

1082predator under this part.

10869. Wellpath is not an ÐagencyÑ as defined i n section

1097120.52(1). See generally Fla. DepÓt of Ins. v. Fla. AssÓn of

1108Ins. Agents , 813 So. 2d 981 (Fla. 1st DCA 2002); DepÓt of Corr.

1121v. Adams , 458 So. 2d 354 (Fla. 1st DCA 1984).

113110. Wellpath is an independent contractor. The Department

1139contracted wit h Wellpath in accordance with its statutory

1148authority under section 394.9151. That the Department enlisted

1156a private entity , by contract , to operate the FCCC , does not

1167make the services the private entity employs to implement the

1177provisions of that contra ct equivalent to agency action. See

1187Fla. AssÓ n of Ins. Agents , 813 So. 2d at 984. Because Wellpath

1200is not an ÐagencyÑ under section 120.52(1), the FCCC Resident

1210Handbook and the memorandum that it utilizes for the internal

1220operation of the FCCC are there fore not Ð agency statementsÑ

1231within the meaning of section 120.52(16).

123711. Since t he internal memoranda and the FCCC Resident

1247Handbook are not agency statem ents, and therefore not rules

1257within the meaning of section 120.52(16), then the same cannot

1267be sub ject to challenge under sec tion 120.56(4) unless adopted,

1278endorsed, or approved by the Department. Petitioners do not

1287allege that the Department has taken any such action with

1297respect to WellpathÓs internal memoranda or FCCC Resident

1305Handbook .

130712. The ru lemaking authority extended to the Department in

1317section 394.930 does not extend to the internal memoranda and

1327policies of a private contractor as authorized by section

1336394.9151.

133713. The respective Petitions claim that WellpathÓs

1344utilization of the FCCC R esident Handbook constitutes

1352disciplinary proceedings of retribution and deterrence, in

1359violation of Article 1, § 9, of the Florida Constitution.

1369Though not well stated, Petitioners seem to suggest that the

1379FCCC Resident Handbook and internal memorandum a re depriving

1388them, in some way, of their procedural due process rights.

1398While the Division of Administrative Hearings ( DOAH ) does not

1409have jurisdiction to declare statutes or existing rules

1417unconstitutional, see Dep Ó t of Bus . Reg . v. Ruff , 592 So. 2d 688

1433(Fla. 1992), there may be instances where DOAH has authority to

1444declare a proposed rule unconstitutional. See Dept. of Env.

1453RegÓl v. Leon Cnt y . , 344 So. 2d 297 (Fla 1st DCA 1977).

1467However, as commentators have noted, Ðit is not entirely clear

1477that [DOAH] would have authority to declare agency policy in the

1488form of an unadopted rule unconstitutional.Ñ Fla . Admin .

1498Practice § 2 - 42 ( 7th ed. 2004 ) . The predicate to the question,

1514however, is that there must exist Ðagency policy.Ñ In the

1524instant case, as note d above, there is no such agency policy in

1537dispute, and therefore DOAH lacks jurisdiction to address any

1546constitutional questions that are, in reality, directed

1553exclusively towards the actions of Wellpath.

1559ORDER

1560Based on the foregoing Findings of Fact and Conclusions of

1570Law, it is ORDERED that each Petition for Administrative

1579Determination challenging the FCCC Resident Handbook and

1586internal memorandum as unadopted rules of the Department of

1595Children and Families is DISMISSED WITH PREJUDICE , as the

1604defects i n PetitionersÓ claims cannot be cured by amendment.

1614DONE AND ORDERED this 12th day of April , 2019 , in

1624Tallahassee, Leon County, Florida.

1628S

1629LINZIE F. BOGAN

1632Administrative Law Judge

1635Division of Administrative Hearings

1639The D eSoto Building

16431230 Apalachee Parkway

1646Tallahassee, Florida 32399 - 3060

1651(850) 488 - 9675

1655Fax Filing (850) 921 - 6847

1661www.doah.state.fl.us

1662Filed with the Clerk of the

1668Division of Administrative Hearings

1672this 12th day of April , 2019 .

1679ENDNOTE

16801/ All statutory references are to Florida Statutes (2018),

1689unless otherwise noted.

1692COPIES FURNISHED:

1694John Jackson, General Counsel

1698Department of Children and Families

1703Building 2, Room 204F

17071317 Winewood Boulevard

1710Tallahassee, Florida 32399 - 0700

1715(eServed)

1716Ivory Avant, Esquire

1719Department of Children and Families

1724Building 2, Room 204Q

17281317 Winewood Boulevard

1731Tallahassee, Florida 32399

1734(eServed)

1735Joseph C. Evans, Jr., SVP 990448

1741Florida Civil Commitment Center

174513619 Southeast Highway 70

1749Arcadia, Florida 34266

1752Ro nald C. Hood, Jr., SVP 990304

1759Florida Civil Commitment Center

176313619 Southeast Highway 70

1767Arcadia, Florida 34266

1770Ricky Gibson, SVP 991334

1774Florida Civil Commitment Center

177813619 Southeast Highway 70

1782Arcadia, Florida 34266

1785Willie McCord, SVP 2106510

1789Florid a Civil Commitment Center

179413619 Southeast Highway 70

1798Arcadia, Florida 34266

1801Ezra Raulerson, SVP 991537

1805Florida Civil Commitment Center

180913619 Southeast Highway 70

1813Arcadia, Florida 34266

1816Fernando Luis Viruet, SVP 990080

1821Florida Civil Commitment Center

182513 619 Southeast Highway 70

1830Arcadia, Florida 34266

1833Ernest Reddick, Program Administrator

1837Anya Grosenbaugh

1839Florida Administrative Code and Register

1844Department of State

1847R. A. Gray Building

1851500 South Bronough Street

1855Tallahassee, Florida 32399 - 0250

1860(eServed )

1862Ken Plante, Coordinator

1865Joint Administrative Procedures Committee

1869Room 680, Pepper Building

1873111 West Madison Street

1877Tallahassee, Florida 32399 - 1400

1882(eServed)

1883Lacey Kantor, Agency Clerk

1887Department of Children and Families

1892Building 2, Room 204Z

18961317 Win ewood Boulevard

1900Tallahassee, Florida 32399 - 0700

1905(eServed)

1906Chad Poppell, Secretary

1909Department of Children and Families

1914Building 1, Room 202

19181317 Winewood Boulevard

1921Tallahassee, Florida 32399 - 0700

1926NOTICE OF RIGHT TO JUDICIAL REVIEW

1932A party who is adver sely affected by this Final Order is

1944entitled to judicial review pursuant to section 120.68, Florida

1953Statutes. Review proceedings are governed by the Florida Rules

1962of Appellate Procedure. Such proceedings are commenced by

1970filing the original notice of ad ministrative appeal with the

1980agency clerk of the Division of Administrative Hearings within

198930 days of rendition of the order to be reviewed, and a copy of

2003the notice, accompanied by any filing fees prescribed by law,

2013with the clerk of the District Court o f Appeal in the appellate

2026district where the agency maintains its headquarters or where a

2036party resides or as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/28/2019
Proceedings: Petition to Initiate Rulemaking filed.
PDF:
Date: 06/28/2019
Proceedings: Petition to Initiate Rulemaking filed.
PDF:
Date: 06/28/2019
Proceedings: Petition to Initiate Rulemaking filed.
PDF:
Date: 06/28/2019
Proceedings: Petition to Initiate Rulemaking filed.
PDF:
Date: 04/12/2019
Proceedings: DOAH Final Order
PDF:
Date: 04/12/2019
Proceedings: Summary Final Order of Dismissal. CASE CLOSED.
PDF:
Date: 03/29/2019
Proceedings: Petitioner's Reply to Motion to Dismiss with Prejudice and Motion for Summary Final Order filed.
PDF:
Date: 03/15/2019
Proceedings: Amended Order Regarding Petitioner's Reply to Department's Motion to Dismiss.
PDF:
Date: 03/14/2019
Proceedings: Department's Amended Response to Petition for Administrative Determination Motion to Dismiss with Prejudice and Motion for Summary Final Order filed.
PDF:
Date: 03/14/2019
Proceedings: Order Regarding Petitioners' Reply to Department's Motion to Dismiss.
PDF:
Date: 03/12/2019
Proceedings: Order Rescheduling Hearing by Telephone (hearing set for April 30, 2019; 9:30 a.m.).
PDF:
Date: 03/11/2019
Proceedings: Notice for Final Hearing filed.
PDF:
Date: 02/27/2019
Proceedings: Order Granting Continuance (parties to advise status by March 11, 2019).
PDF:
Date: 02/27/2019
Proceedings: Order of Consolidation (DOAH Case Nos. 19-0539RU, 19-0540RU, 19-0541RU, 19-0542RU, 19-0920RU, and 19-0977RU).
PDF:
Date: 02/26/2019
Proceedings: Order of Consolidation (DOAH Case Nos. 19-0539RU, 19-0540RU, 19-0541RU, and 19-0542RU).
PDF:
Date: 02/25/2019
Proceedings: Departments Motion for Petitioner to Appear by Phone filed.
PDF:
Date: 02/20/2019
Proceedings: Unopposed Motion for Continuance filed.
PDF:
Date: 02/20/2019
Proceedings: Unopposed Motion to Consolidate filed.
PDF:
Date: 02/18/2019
Proceedings: Department's Response to Petition for Administrative Determination, Motion to Dismiss with Prejudice and Motion for Summary Final Order filed.
PDF:
Date: 02/06/2019
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/06/2019
Proceedings: Notice of Hearing (hearing set for March 1, 2019; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 02/04/2019
Proceedings: Notice of Appearance (Ivory Avant) filed.
PDF:
Date: 02/01/2019
Proceedings: Order of Assignment.
PDF:
Date: 02/01/2019
Proceedings: Rule Challenge transmittal letter to Ernest Reddick from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 01/30/2019
Proceedings: Petition for Administrative Determination filed.

Case Information

Judge:
LINZIE F. BOGAN
Date Filed:
01/30/2019
Date Assignment:
02/01/2019
Last Docket Entry:
06/28/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Children and Families
Suffix:
RU
 

Counsels

Related Florida Statute(s) (10):