19-002948RU Sammy Douse vs. Department Of Children And Families Status: Closed DOAH Final Order on Thursday, June 27, 2019.

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).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK JAMES,

Petitioner,

vs. Case No. 19 - 2946RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

ALFREDO ROEBUCK,

Petitioner,

vs. Case No. 19 - 2947RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

SAMMY DOUSE,

Petitioner,

vs. Case No. 19 - 2948RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

SU MMARY FINAL ORDER OF DISMISSAL

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

without hearing, on the DepartmentÓs Amended Response to Petition

for Administrative Determination, Motion to Dismiss with

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

for Administrative Determination. On June 24, 2019, Petitioners

filed a reply to the DepartmentÓs motion. The undersigned has

considered RespondentÓs motion, Petitioner s Ó reply thereto, and

all matters of record.

FINDINGS OF FACT

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

2. Respondent, Department of Children 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

chapter 394, part V (entitled ÐInvoluntary Civil Commitment of

Sexually Violent PredatorsÑ).

3. Each Petitioner is a sexually violent predator, and

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

Petitioners are confined in the FCCC.

4. Petitioner s allege 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 legislativ e

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

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

Florida Statutes.

5. Petitioner s also claim that because ÐBaker Act

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

aspect of the facility must be implementedÑ in accordance with

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

at FCCC pursuant to the Baker Act. 2/

CONCLUSIONS OF LAW

6. Chapter 394, part I (sections 394.451 through

394.47892), is know n interchangeably as both ÐThe Florida Mental

Health ActÑ and ÐThe 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 seek ing

mental health treatment from facilities 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 permit ted to

operate unless rules designed to 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 recognized 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 ensur e the safety of program

participants and 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 s taff who may order or be

engaged in the 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 o f 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, de al with the involuntary civil commitment 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 t hat renders them

appropriate for involuntary 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 person s appropriate for civil

commitment under 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 crimi nal, sexually violent

behavior. The Legislature 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 treat ment 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 trea tment needs of this population

are very 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 L egislature to

create a civil commitment 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

sexua lly 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 s contend that because

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

Resident Handbook) governing every aspect of the facility must be

implementedÑ pursuant to rulemaking requirements set forth in The

Baker Act. Petitioners Ó c ontention s are 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 s ,

who are subject to the civil commitment procedures governing

sexually violent predators. Acc ordingly, the only remaining

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

10. Section 120.52(1) defines ÐAgencyÑ as:

(a) The Governor; each state officer and

state department, and each departmental unit

described in s. 20.04; the Boa rd 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 governmental 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 defini tion 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 pursuant 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 le gal 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 ÐRuleÑ as:

ÐRuleÑ means each age ncy statement of general

applicability that 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 specificall y 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 of:

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 ma nagement.

12. Section 120.56(4)(a) provides 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 t he text of the

statement or a description 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 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 a nd 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, bu t

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 designatio n of secure facilities for

sexually violent 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 sh e is being examined to determine whether

he or she is a sexually violent predator

under this part.

14. Wellpath is not an ÐagencyÑ as defined in section

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

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

v. Adams , 458 So. 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

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

the services the private entity employs to implement the

provisions of that contract equivalent to agency action. See

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

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

Handbook that it utilizes for the internal operation of the FCCC

is therefore not an Ðagency statementÑ within the meaning of

section 120.52(16).

16. Since the FCCC Resident Handbook is not an agency

sta tement, 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 s do not allege that the Department has

take n any such action with respect to WellpathÓs 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 Conclusions of

Law, it is ORDERED that each 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 Petitioners Ó claim(s)

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

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

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

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 27th day of June , 2019 .

ENDNOTE S

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

unless otherwise noted.

2/ Petitioner Alfredo Roebuck filed an affidavit, and avers

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

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

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

Florida Civil Commitment Cen ter under the [ Involuntary Civil

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

Accepting PetitionerÓs RoebuckÓs allegation as true, it is noted

that resolution of the dispute herein is not altered by

Petitioner RoebuckÓs alleged Ðdual status.Ñ

COPIES FURNISHED:

Javier Enriquez, Esquire

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Ivory Avant, Esquire

Department of Children and Families

Building 2, Room 204Q

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Sammy Dou se, 990797

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Frank James, 991534

Florida Civil Commitment Center

13619 Southeast Highway 70

Arcadia, Florida 34266

Alfredo Roebuck, 990286

Florida Civil Commitment Center

1 3619 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 W inewood 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

(eServed)

Javier Enriquez, General Counsel

Departm ent 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 is 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

notice 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 headquarte rs or where a party resides or

as otherwise provided by law.