19-002556RU Juan Francisco Vega vs. Department Of Children And Families Status: Closed DOAH Final Order on Thursday, June 13, 2019.

Summary: The resident handbook of the private company operating the FCCC are not "rules" of the Department subject to challenge under 120.56(4).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN FRANCISCO VEGA,

Petitioner,

vs. Case No. 19 - 2556RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This matter came on for consideration on May 29, 2019,

without hearing, on the Department Ó s Response to Petition for

Administrative Determination , Motion to Dismiss with Prejudice ,

and Motion for Summary Final Order as to the Petition for

Administrative Determi na tion . 1/ The Department has not filed a

similar motion with respect to the cases previously consolidated

herewith. The undersigned has considered Respondent Ó s motion,

Petitioner Ó s response thereto, and all matters of record.

FINDINGS OF FACT

1. There a re no issues of material fact in dispute.

2. Respondent, Department of Children and Families

(Department), pursuant to section 394.9151, Florida Statutes

(2018), 2/ has contracted with a private entity, Wellpath, LLC

(Wellpath), to use and operate a facili ty, Florida Civil

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

chapter 394, part V (entitled Ð Involuntary Civil Commitment of

Sexually Violent Predators Ñ ).

3. Petitioner, who is a sexually violent predator, is a

person subject to chapter 3 94, part V, and is confined in the

FCCC.

4. Petitioner alleges that the FCCC Resident Handbook is

an unpromulgated rule which is imposed on FCCC residents, and

that the same is an improper exercise of delegated legislative

authority as a de facto agency r ule that has not been adopted

pursuant to the rulemaking procedures of section 120.54(1)(a),

Florida Statutes.

5. Petitioner also claims that because Ð Baker Act

residents Ñ are housed at FCCC, then Ð all rules governing every

aspect of the facility must be implemented Ñ in accordance with

section 394.457. Petitioner does not allege that he is housed

at FCCC pursuant to the Baker Act.

CONCLUSIONS OF LAW

6. Chapter 394, part I ( sections 394.451 through

394.47892) , is known interchangeably as both Ð The Florida Mental

Health Act Ñ and Ð The Baker Act. Ñ Section 394.457(5) provides,

in part, as follows:

(a) The department shall adopt rules

establishing forms and procedures relating

to the rights and privileges of patients

seeking mental health treatment from

facil ities under this part.

(b) The department shall adopt rules

necessary for the implementation and

administration of the provisions of this

part, and a program subject to the

provisions of this part shall not be

permitted to operate unless rules designed

t o ensure the protection of the health,

safety, and welfare of the patients treated

through such program have been adopted.

Rules adopted under this subsection must

include provisions governing the use of

restraint and seclusion which are consistent

with r ecognized best practices and

professional judgment; prohibit inherently

dangerous restraint or seclusion procedures;

establish limitations on the use and

duration of restraint and seclusion;

establish measures to ensure the safety of

program participants a nd staff during an

incident of restraint or seclusion;

establish procedures for staff to follow

before, during, and after incidents of

restraint or seclusion; establish

professional qualifications of and training

for staff who may order or be engaged in th e

use of restraint or seclusion; and establish

mandatory reporting, data collection, and

data dissemination procedures and

requirements. Rules adopted under this

subsection must require that each instance

of the use of restraint or seclusion be

documented in the record of the patient.

Florida Administrative Code Chapter 65E sets forth the rules

promulgated pursuant to the requirements of The Baker Act.

7. Sections 394.910 through 394.932, as previously

referenced, deal with the involuntary civil commitme nt of

sexually violent predators. Section 394.910 provides as

follows:

The Legislature finds that a small but

extremely dangerous number of sexually

violent predators exist who do not have a

mental disease or defect that renders them

appropriate for invol untary treatment under

the Baker Act, part I of this chapter, which

is intended to provide short - term treatment

to individuals with serious mental disorders

and then return them to the community. In

contrast to persons appropriate for civil

commitment und er the Baker Act, sexually

violent predators generally have antisocial

personality features which are unamenable to

existing mental illness treatment

modalities, and those features render them

likely to engage in criminal, sexually

violent behavior. The L egislature further

finds that the likelihood of sexually

violent predators engaging in repeat acts of

predatory sexual violence is high. The

existing involuntary commitment procedures

under the Baker Act for the treatment and

care of mentally ill persons are inadequate

to address the risk these sexually violent

predators pose to society. The Legislature

further finds that the prognosis for

rehabilitating sexually violent predators in

a prison setting is poor, the treatment

needs of this population are ver y long term,

and the treatment modalities for this

population are very different from the

traditional treatment modalities for people

appropriate for commitment under the Baker

Act. It is therefore the intent of the

Legislature to create a civil commitmen t

procedure for the long - term care and

treatment of sexually violent predators.

8. Section 394.911 provides as follows:

The Legislature intends that persons who are

subject to the civil commitment procedure

for sexually violent predators under this

part be subject to the procedures

established in this part and not to the

provisions of part I of this chapter. Less

restrictive alternatives are not applicable

to cases initiated under this part.

9. As previously noted, Petitioner contends that because

FCC C houses Baker Act residents, then Ð all rules (i.e. the FCCC

Resident Handbook) governing every aspect of the facility must

be implemented Ñ pursuant to rulemaking requirements set forth in

The Baker Act. Petitioner Ó s contention is not supported by the

law . Section 394.911 makes it clear that the procedures set

forth in The Baker Act do not apply to persons, like Petitioner,

who are subject to the civil commitment procedures governing

sexually violent predators. Accordingly, the only remaining

issue is wh ether the FCCC Resident Handbook is an unadopted

rule.

10. Section 120.52(1) defines Ð Agency Ñ as:

(a) The 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) Each officer and governmental entity in

the state having statewide jurisdiction or

jurisdiction in more than one county.

(c) Each officer and governme ntal entity in

the state having jurisdiction in one county

or less than one county, to the extent they

are 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 pursuant to

part II of chapter 361; a metropolitan

planning organization created pursuant to

s. 339.175; a separate legal or

administrative entity created p ursuant to

s. 339.175 of which a metropolitan planning

organization is a member; an expressway

authority 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.

11. Section 120.52(16), in part, defines a Ð Rule Ñ as:

Ð Rule Ñ means each agency statement of

general applicability t hat implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements 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) Internal 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 o f:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

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 collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

12. Section 120.56(4)(a) pro vides as follows:

Any person substantially affected by an

agency statement that is an unadopted rule

may seek an administrative determination

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

The petition shall include the text of the

statement or a descriptio n of the statement

and shall state facts sufficient to show

that the statement constitutes an unadopted

rule.

13. Section 394.930 provides as follows:

The Department of Children and Families

shall adopt rules for:

(1) Procedures that must be followed b y

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 that 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 viol ent predators who are

subject to involuntary commitment under this

part;

(5) The components of the basic 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.

14. Wellpath is not an Ð agency Ñ as defined in section

120.52(1). See generally Fla. Dep Ó t of Ins. v. Fla. Ass Ó n of

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

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

15. Wellpath is an independent contractor. The Department

contracted with Wellpath in accordance with its statutory

authority under section 394.9151. That the Department enlisted

a private entity, by contract, to operate t he FCCC, does not

make the services the private entity employs to implement the

provisions of that contract equivalent to agency action. See

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

is not an Ð agency Ñ under section 120.52(1), the FC CC Resident

Handbook that it utilizes for the internal operation of the FCCC

is therefore not an Ð agency statement Ñ within the meaning of

section 120.52(16).

16. Since the FCCC Resident Handbook is not an agency

statement, and therefore not a rule within the meaning of

section 120.52(16), then the same cannot be subject to challenge

under section 120.56(4) unless adopted, endorsed, or approved by

the Department. Petitioner does not allege that the Department

has taken any such action with respect to Wellp ath Ó s FCCC

Resident Handbook.

17. The rulemaking authority extended to the Department in

section 394.930 does not extend to the policies of a private

contractor as authorized by section 394.9151.

ORDER

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is ORDERED that the Petition for Administrative

Determination challenging the FCCC Resident Handbook as an

unadopted rule of the Department of Children and Families is

DISMISSED WITH PREJUDICE, as the defects in Petitioner Ó s

claim(s) cannot b e cured by amendment. All pending motions are

DENIED as moot.

DONE AND ORDERED this 13th day of June , 201 9 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 13th day of June, 2019 .

ENDNOTE S

1/ On June 10, 2019, Petitioner filed hi s reply to the

DepartmentÓs motion to dismiss and motion for summary final

order. On June 11, 2019, the Department filed what is styled as

an Amended Response to Petition for Administrative

Determination, Motion to Dismiss with Prejudice, and Motion for

S ummary Final Order. In reviewing the DepartmentÓs ÐAmended

Response,Ñ it appears as though the Department added argument in

response to PetitionerÓs ÐBaker ActÑ assertions, but in all

other respects, the ÐAmended ResponseÑ simply restates what was

previou sly filed by Respondent.

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

unless otherwise noted.

COPIES FURNISHED:

Juan Francisco Vega

Florida Civil Commitment Center

SVP 99135

13619 Southeast Highway 70

Arcadia, Florida 34266

Ivory Ava nt, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

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 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tal lahassee, Florida 32399 - 0700

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who i s adversely 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 notic e of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

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

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

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

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.