19-002947RU Alfredo Roebuck vs. Department Of Children And Families
 Status: Closed
DOAH Final Order on Thursday, June 27, 2019.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FRANK JAMES,

10Petitioner,

11vs. Case No. 19 - 2946RU

17DEPARTMENT OF CHILDREN AND

21FAMILIES,

22Respondent.

23_______________________________/

24ALFREDO ROEBUCK,

26Petitioner,

27vs. Case No. 19 - 2947RU

33DEPARTMENT OF CHILDREN AND

37FAMILIES,

38Respondent.

39_______________________________/

40SAMMY DOUSE,

42Petitioner,

43vs. Case No. 19 - 2948RU

49DEPARTMENT OF CHILDREN AND

53FAMILIES,

54Respondent.

55_______________________________/

56SU MMARY FINAL ORDER OF DISMISSAL

62This matter cam e on for consideration on June 11 , 2019,

73without hearing, on the DepartmentÓs Amended Response to Petition

82for Administrative Determination, Motion to Dismiss with

89Prejudice, and Motion for Summary Final Order as to the Petition

100for Administrative Determination. On June 24, 2019, Petitioners

108filed a reply to the DepartmentÓs motion. The undersigned has

118considered RespondentÓs motion, Petitioner s Ó reply thereto, and

127all matters of record.

131FINDINGS OF FACT

1341. There are no issues of material fact in dispute.

1442. Respondent, Department of Children and Families

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

158(2018), 1 / has contracted with a private entity, Wellpath, LLC

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

178Commitment Center (FCCC), to comply with the requirements of

187chapter 394, part V (entitled ÐInvoluntary Civil Commitment of

196Sexually Violent PredatorsÑ).

1993. Each Petitioner is a sexually violent predator, and

208collectively a re pers on s subject to chapter 394, part V .

221Petitioners are confined in the FCCC.

2274. Petitioner s allege that the FCCC Resident Handbook is an

238unpromulgated rule which is imposed on FCCC residents, and that

248the same is an improper exercise of delegated legislativ e

258authority as a de facto agency rule that has not been adopted

270pursuant to the rulemaking procedures of section 120.54(1)(a),

278Florida Statutes.

2805. Petitioner s also claim that because ÐBaker Act

289residentsÑ are housed at FCCC, then Ðall rules governing eve ry

300aspect of the facility must be implementedÑ in accordance with

310section 394.457. Petitioner s do not allege that t he y are housed

323at FCCC pursuant to the Baker Act. 2/

331CONCLUSIONS OF LAW

3346. Chapter 394, part I (sections 394.451 through

342394.47892), is know n interchangeably as both ÐThe Florida Mental

352Health ActÑ and ÐThe Baker Act.Ñ Section 394.457(5) provides, in

362part, as follows:

365(a) The department shall adopt rules

371establishing forms and procedures relating to

377the rights and privileges of patients seek ing

385mental health treatment from facilities under

391this part.

393(b) The department shall adopt rules

399necessary for the implementation and

404administration of the provisions of this

410part, and a program subject to the provisions

418of this part shall not be permit ted to

427operate unless rules designed to ensure the

434protection of the health, safety, and welfare

441of the patients treated through such program

448have been adopted. Rules adopted under this

455subsection must include provisions governing

460the use of restraint and seclusion which are

468consistent with recognized best practices and

474professional judgment; prohibit inherently

478dangerous restraint or seclusion procedures;

483establish limitations on the use and duration

490of restraint and seclusion; establish

495measures to ensur e the safety of program

503participants and staff during an incident of

510restraint or seclusion; establish procedures

515for staff to follow before, during, and after

523incidents of restraint or seclusion;

528establish professional qualifications of and

533training for s taff who may order or be

542engaged in the use of restraint or seclusion;

550and establish mandatory reporting, data

555collection, and data dissemination procedures

560and requirements. Rules adopted under this

566subsection must require that each instance of

573the use o f restraint or seclusion be

581documented in the record of the patient.

588Florida Administrative Code Chapter 65E sets forth the rules

597promulgated pursuant to the requirements of The Baker Act.

6067. Sections 394.910 through 394.932, as previously

613referenced, de al with the involuntary civil commitment of

622sexually violent predators. Section 394.910 provides as follows:

630The Legislature finds that a small but

637extremely dangerous number of sexually

642violent predators exist who do not have a

650mental disease or defect t hat renders them

658appropriate for involuntary treatment under

663the Baker Act, part I of this chapter, which

672is intended to provide short - term treatment

680to individuals with serious mental disorders

686and then return them to the community. In

694contrast to person s appropriate for civil

701commitment under the Baker Act, sexually

707violent predators generally have antisocial

712personality features which are unamenable to

718existing mental illness treatment modalities,

723and those features render them likely to

730engage in crimi nal, sexually violent

736behavior. The Legislature further finds that

742the likelihood of sexually violent predators

748engaging in repeat acts of predatory sexual

755violence is high. The existing involuntary

761commitment procedures under the Baker Act for

768the treat ment and care of mentally ill

776persons are inadequate to address the risk

783these sexually violent predators pose to

789society. The Legislature further finds that

795the prognosis for rehabilitating sexually

800violent predators in a prison setting is

807poor, the trea tment needs of this population

815are very long term, and the treatment

822modalities for this population are very

828different from the traditional treatment

833modalities for people appropriate for

838commitment under the Baker Act. It is

845therefore the intent of the L egislature to

853create a civil commitment procedure for the

860long - term care and treatment of sexually

868violent predators.

8708. Section 394.911 provides as follows:

876The Legislature intends that persons who are

883subject to the civil commitment procedure for

890sexua lly violent predators under this part be

898subject to the procedures established in this

905part and not to the provisions of part I of

915this chapter. Less restrictive alternatives

920are not applicable to cases initiated under

927this part.

9299. As previously noted, Petitioner s contend that because

938FCCC houses Baker Act residents, then Ðall rules (i.e. the FCCC

949Resident Handbook) governing every aspect of the facility must be

959implementedÑ pursuant to rulemaking requirements set forth in The

968Baker Act. Petitioners Ó c ontention s are not supported by the

980law. Section 394.911 makes it clear that the procedures set

990forth in The Baker Act do not apply to persons, like Petitioner s ,

1003who are subject to the civil commitment procedures governing

1012sexually violent predators. Acc ordingly, the only remaining

1020issue is whether the FCCC Resident Handbook is an unadopted rule.

103110. Section 120.52(1) defines ÐAgencyÑ as:

1037(a) The Governor; each state officer and

1044state department, and each departmental unit

1050described in s. 20.04; the Boa rd of Governors

1059of the State University System; the

1065Commission on Ethics; the Fish and Wildlife

1072Conservation Commission; a regional water

1077supply authority; a regional planning agency;

1083a multicounty special district, but only if a

1091majority of its governing board is comprised

1098of nonelected persons; educational units; and

1104each entity described in chapters 163, 373,

1111380, and 582 and s. 186.504.

1117(b) Each officer and governmental entity in

1124the state having statewide jurisdiction or

1130jurisdiction in more than one county.

1136(c) Each officer and governmental entity in

1143the state having jurisdiction in one county

1150or less than one county, to the extent they

1159are expressly made subject to this chapter by

1167general or special law or existing judicial

1174decisions.

1175This defini tion does not include a

1182municipality or legal entity created solely

1188by a municipality; a legal entity or agency

1196created in whole or in part pursuant to

1204part II of chapter 361; a metropolitan

1211planning organization created pursuant to

1216s. 339.175; a separate legal or

1222administrative entity created pursuant to

1227s. 339.175 of which a metropolitan planning

1234organization is a member; an expressway

1240authority pursuant to chapter 348 or any

1247transportation authority or commission under

1252chapter 343 or chapter 349; or a le gal or

1262administrative entity created by an

1267interlocal agreement pursuant to

1271s. 163.01(7), unless any party to such

1278agreement is otherwise an agency as defined

1285in this subsection.

128811. Section 120.52(16), in part, defines a ÐRuleÑ as:

1297ÐRuleÑ means each age ncy statement of general

1305applicability that implements, interprets, or

1310prescribes law or policy or describes the

1317procedure or practice requirements of an

1323agency and includes any form which imposes

1330any requirement or solicits any information

1336not specificall y required by statute or by an

1345existing rule. The term also includes the

1352amendment or repeal of a rule. The term does

1361not include:

1363(a) Internal management memoranda which do

1369not affect either the private interests of

1376any person or any plan or procedure important

1384to the public and which have no application

1392outside the agency issuing the memorandum.

1398(b) Legal memoranda or opinions issued to an

1406agency by the Attorney General or agency

1413legal opinions prior to their use in

1420connection with an agency action.

1425(c) The preparation or modification of:

14311. Agency budgets.

14342. Statements, memoranda, or instructions to

1440state agencies issued by the Chief Financial

1447Officer or Comptroller as chief fiscal

1453officer of the state and relating or

1460pertaining to claims for payment submitted by

1467state agencies to the Chief Financial Officer

1474or Comptroller.

14763. Contractual provisions reached as a

1482result of collective bargaining.

14864. Memoranda issued by the Executive Office

1493of the Governor relating to information

1499resources ma nagement.

150212. Section 120.56(4)(a) provides as follows:

1508Any person substantially affected by an

1514agency statement that is an unadopted rule

1521may seek an administrative determination that

1527the statement violates s. 120.54(1)(a). The

1533petition shall include t he text of the

1541statement or a description of the statement

1548and shall state facts sufficient to show that

1556the statement constitutes an unadopted rule.

156213. Section 394.930 provides as follows:

1568The Department of Children and Families shall

1575adopt rules for:

1578(1) Procedures that must be followed by

1585members of the multidisciplinary teams when

1591assessing and evaluating persons subject to

1597this part;

1599(2) Education and training requirements for

1605members of the multidisciplinary teams and

1611professionals who assess a nd evaluate persons

1618under this part;

1621(3) The criteria that must exist in order

1629for a multidisciplinary team to recommend to

1636a state attorney that a petition should be

1644filed to involuntarily commit a person under

1651this part. The criteria shall include, bu t

1659are not limited to, whether:

1664(a) The person has a propensity to engage in

1673future acts of sexual violence;

1678(b) The person should be placed in a secure,

1687residential facility; and

1690(c) The person needs long - term treatment and

1699care.

1700(4) The designatio n of secure facilities for

1708sexually violent predators who are subject to

1715involuntary commitment under this part;

1720(5) The components of the basic treatment

1727plan for all committed persons under this

1734part;

1735(6) The protocol to inform a person that he

1744or sh e is being examined to determine whether

1753he or she is a sexually violent predator

1761under this part.

176414. Wellpath is not an ÐagencyÑ as defined in section

1774120.52(1). See generally Fla. DepÓt of Ins. v. Fla. AssÓn of

1785Ins. Agents , 813 So. 2d 981 (Fla. 1st D CA 2002); DepÓt of Corr.

1799v. Adams , 458 So. 2d 354 (Fla. 1st DCA 1984).

180915. Wellpath is an independent contractor. The Department

1817contracted with Wellpath in accordance with its statutory

1825authority under section 394.9151. That the Department enlisted a

1834p rivate entity, by contract, to operate the FCCC, does not make

1846the services the private entity employs to implement the

1855provisions of that contract equivalent to agency action. See

1864Fla. AssÓn of Ins. Agents , 813 So. 2d at 984. Because Wellpath

1876is not an ÐagencyÑ under section 120.52(1), the FCCC Resident

1886Handbook that it utilizes for the internal operation of the FCCC

1897is therefore not an Ðagency statementÑ within the meaning of

1907section 120.52(16).

190916. Since the FCCC Resident Handbook is not an agency

1919sta tement, and therefore not a rule within the meaning of section

1931120.52(16), then the same cannot be subject to challenge under

1941section 120.56(4) unless adopted, endorsed, or approved by the

1950Department. Petitioner s do not allege that the Department has

1960take n any such action with respect to WellpathÓs FCCC Resident

1971Handbook.

197217. The rulemaking authority extended to the Department in

1981section 394.930 does not extend to the policies of a private

1992contractor as authorized by section 394.9151.

1998ORDER

1999Based on the foregoing Findings of Fact and Conclusions of

2009Law, it is ORDERED that each Petition for Administrative

2018Determination challenging the FCCC Resident Handbook as an

2026unadopted rule of the Department of Children and Families is

2036DISMISSED WITH PREJUDICE, as the defects in Petitioners Ó claim(s)

2046cannot be cured by amendment. All pending motions are DENIED as

2057moot. The hearing scheduled for July 3, 2019, is cancelled.

2067DONE AND ORDERED this 27th day of June, 2019, in

2077Tallahassee, Leon County, Florida.

2081S

2082LINZIE F. BOGAN

2085Administrative Law Judge

2088Division of Administrative Hearings

2092The DeSoto Building

20951230 Apalachee Parkway

2098Tallahassee, Florida 32399 - 3060

2103(850) 488 - 9675

2107Fax Filing (850) 921 - 6847

2113www.doah.state.fl.us

2114Filed with the C lerk of the

2121Division of Administrative Hearings

2125this 27th day of June , 2019 .

2132ENDNOTE S

21341 / All statutory references are to Florida Statutes (2018),

2144unless otherwise noted.

21472/ Petitioner Alfredo Roebuck filed an affidavit, and avers

2156therein that Ð[w]hil e civilly committed under the [ Involuntary

2166Civil Commitment of Sexually Violent Predators ] Act, [he] was

2176placed under the Baker Act, and [he] remained housed at the

2187Florida Civil Commitment Cen ter under the [ Involuntary Civil

2197Commitment of Sexually Violent Predators ] Act and Baker Act.Ñ

2207Accepting PetitionerÓs RoebuckÓs allegation as true, it is noted

2216that resolution of the dispute herein is not altered by

2226Petitioner RoebuckÓs alleged Ðdual status.Ñ

2231COPIES FURNISHED:

2233Javier Enriquez, Esquire

2236Department of Children and Families

2241Building 2, Room 204F

22451317 Winewood Boulevard

2248Tallahassee, Florida 32399 - 0700

2253Ivory Avant, Esquire

2256Department of Children and Families

2261Building 2, Room 204Q

22651317 Winewood Boulevard

2268Tallahassee, Florida 32399

2271(eServed)

2272Sammy Dou se, 990797

2276Florida Civil Commitment Center

228013619 Southeast Highway 70

2284Arcadia, Florida 34266

2287Frank James, 991534

2290Florida Civil Commitment Center

229413619 Southeast Highway 70

2298Arcadia, Florida 34266

2301Alfredo Roebuck, 990286

2304Florida Civil Commitment Center

23081 3619 Southeast Highway 70

2313Arcadia, Florida 34266

2316Ernest Reddick, Program Administrator

2320Anya Grosenbaugh

2322Florida Administrative Code and Register

2327Department of State

2330R. A. Gray Building

2334500 South Bronough Street

2338Tallahassee, Florida 32399 - 0250

2343(eServed)

2344Ken Plante, Coordinator

2347Joint Administrative Procedures Committee

2351Room 680, Pepper Building

2355111 West Madison Street

2359Tallahassee, Florida 32399 - 1400

2364(eServed)

2365Lacey Kantor, Agency Clerk

2369Department of Children and Families

2374Building 2, Room 204Z

23781317 W inewood Boulevard

2382Tallahassee, Florida 32399 - 0700

2387(eServed)

2388Chad Poppell, Secretary

2391Department of Children and Families

2396Building 1, Room 202

24001317 Winewood Boulevard

2403Tallahassee, Florida 32399 - 0700

2408(eServed)

2409Javier Enriquez, General Counsel

2413Departm ent of Children and Families

2419Building 2, Room 204F

24231317 Winewood Boulevard

2426Tallahassee, Florida 32399 - 0700

2431(eServed)

2432NOTICE OF RIGHT TO JUDICIAL REVIEW

2438A party who is adversely affected by this Final Order is entitled

2450to judicial review pursuant to section 120.68, Florida Statutes.

2459Review proceedings are governed by the Florida Rules of Appellate

2469Procedure. Such proceedings are commenced by filing the original

2478notice of administrative appeal with the agency clerk of the

2488Division of Administrative Hearings within 30 days of rendition

2497of the order to be reviewed, and a copy of the notice,

2509accompanied by any filing fees prescribed by law, with the clerk

2520of the District Court of Appeal in the appellate district where

2531the agency maintains its headquarte rs or where a party resides or

2543as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/02/2019
Proceedings: Pre-Hearing Stipulations filed.
Date: 07/02/2019
Proceedings: Notice of Filing (Respondent's Proposed Exhibits) filed (exhibits not available for viewing).
PDF:
Date: 06/27/2019
Proceedings: DOAH Final Order
PDF:
Date: 06/27/2019
Proceedings: Summary Final Order of Dismissal. CASE CLOSED.
PDF:
Date: 06/26/2019
Proceedings: Notice of Filing filed.
PDF:
Date: 06/26/2019
Proceedings: Unopposed Motion for Continuance filed.
PDF:
Date: 06/24/2019
Proceedings: Motion for Change of Venue filed.
PDF:
Date: 06/24/2019
Proceedings: Application for Counsel and Order filed.
PDF:
Date: 06/24/2019
Proceedings: Admissions filed.
PDF:
Date: 06/24/2019
Proceedings: Interrogatories filed.
PDF:
Date: 06/24/2019
Proceedings: Motion for Qualified Representation filed.
PDF:
Date: 06/24/2019
Proceedings: Reply to Department's Response to Petition for Administrative Determination, Motion to Dismiss with Prejudice, and Motion for Summary Final Judgement filed.
PDF:
Date: 06/11/2019
Proceedings: Department's Motion to Quash or Limit Petitioner's Subpoena Request filed.
PDF:
Date: 06/11/2019
Proceedings: Department's Amended Response to Petition for Administrative Determination Motion to Dismiss with Prejudice and Motion for Summary Final Order filed.
PDF:
Date: 06/11/2019
Proceedings: Amended Notice of Telephonic Final Hearing (hearing set for July 3, 2019; 9:30 a.m.; amended as to date).
PDF:
Date: 06/11/2019
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/11/2019
Proceedings: Order of Consolidation and Denial of Motion for Continuance as Moot (DOAH Case Nos. 19-2556RU, 19-2946RU, 19-2947RU, and 19-2948RU).
PDF:
Date: 06/10/2019
Proceedings: Motion to Consolidate filed.
PDF:
Date: 06/05/2019
Proceedings: Notice of Appearance (Ivory Avant) filed.
PDF:
Date: 06/04/2019
Proceedings: Order of Assignment.
PDF:
Date: 06/03/2019
Proceedings: Rule Challenge transmittal letter to Ernest Reddick from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 05/30/2019
Proceedings: Petition for Administrative Determination filed.

Case Information

Judge:
LINZIE F. BOGAN
Date Filed:
05/30/2019
Date Assignment:
06/04/2019
Last Docket Entry:
07/02/2019
Location:
Arcadia, Florida
District:
Middle
Agency:
Department of Children and Families
Suffix:
RU
 

Counsels

Related Florida Statute(s) (15):