20-004323 Metro Treatment Of Florida, L.P. vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, December 9, 2020.

Summary: The tie-breaking procedures utilized by the Department for breaking a tie for the award of a Methadone Medication-Assisted Treatment license for Brevard County, did not constitute an unadopted rule.

S TATEMENT OF T HE I SSUE

Whether the procedure utilized by Respondent , Department of Children

and Families (Department), for breaking a t ie for the award of a Methadone

Medication - Assisted Treatment (MAT) license, pursuant to the “FY

2018/2019 Methadone Medication - Assisted Treatment Needs Assessment

Notice of Intended Award for Brevard County, July 10, 2020,” (Notice) is an

unadopted ru le under section 120 .52(16) and thus cannot form the basis for

the Department’s decision to award a n MAT in Brevard County to Intervenor

CF S ATC 7 d/b/a Central Florida Treatment Centers (Central Florida),

pursuant to section 120.57(1)(e).

P RELIMINARY S TATE MENT

On July 10, 2020, the Department issued the Notice which, inter alia,

stated that the Department “is awarding the opportunity to proceed to licensure to CFSATC dba Central Florida Treatment Centers for one (1)

opioid treatment program based on the fac tors discussed below[]” in Brevard

County, Florida.

Metro, which was one of six MAT providers that submitted letters of

intent/applications for the Brevard County MAT license, timely filed a

Petition for Formal Administrative Hearing Involving Material Di sputed Facts (Petition) on July 31, 2020. The Department referred the Petition to the

Division on September 29, 2020. Central Florida filed its Notice of

Intervention on September 29, 2020.

The undersigned noticed the final hearing in this matter for Nove mber 16

through 17, 2020. The parties, in their Proposed Stipulated Facts, filed

November 10, 2020, requested that this matter proceed upon stipulated facts,

exhibits, and depositions, and agreed that live testimony was not necessary. The undersigned condu cted a telephonic status conference on November 10,

2020, and clarified that the parties submit their exhibits, depositions, and

proposed recommended orders no later than 5:00 p.m., on November 19,

2020, and further clarified that Metro intended to proceed in this matter

pursuant to section 120.57(1)(e). The undersigned, on November 13, 2020,

entered an Order Canceling Hearing, that cancelled the final evidentiary

hearing, and ordered the parties to submit exhibits, depositions, and

proposed recommended ord ers as agreed at the November 10, 2020, telephonic status conference.

The undersigned admitted Joint Exhibits 1 through 3 into evidence:

(J.E. 1) the Notice; (J.E. 2) the Deposition of Ute Gazioch, the Director of

Substance Abuse and Mental Health for th e Department; and (J.E. 3) Florida

Administrative Code Rule 65D - 30.014.

The parties timely filed proposed recommended orders, which the

undersigned has considered in the preparation of this Recommended Order.

All statutory references are to the 2019 codi fication of the Florida

Statutes, unless otherwise indicated.

F INDINGS OF F ACT

The Parties

1. Metro is a provider of specialized quality care for opioid disorder

treatment and operates methadone medication treatment centers nationwide, including the state of Florida, and supports education and understanding of

addiction as a disease, so that more patients and communities can find the

care that is needed to address opioid addiction. Metro’s MAT counseling and

medical services programs are customized to a pa tient’s needs, and services

are delivered in a way that respects their dignity, value, and self - worth.

Metro currently has 18 licensed MAT clinics and one satellite clinic in

Florida.

2. The Department is the agency with regulatory authority over the

provi sion of substance abuse services. See § 397.321(1), Fla. Stat. These

duties include, but are not limited to, the licensing and regulation of the

delivery of substance abuse services, including clinical treatment and clinical

treatment services such as “med ication - assisted treatment for opiate

addiction.” §§ 397.321(1) and (6); 397.311(26)(a)7 . , Fla. Stat. The Department

also promulgates rules governing substance abuse providers. See

§ 397.321(1), Fla. Stat.

3. Central Florida is a Florida corporation licen sed to operate MAT clinics

within Florida. Central Florida currently operates numerous MAT clinics within Florida.

Methadone Medication - Assisted Treatment

4. MAT is the use of medications, in combination with counseling and

behavioral therapies, to provide a whole - patient approach to the treatment of

substance abuse. In Florida, MAT providers for opiate addiction may not be

licensed unless they provide supportive rehabilitation programs such as

counseling, therapy, and vocational rehabilitation. See § 397.4 27(1), Fla. Stat.

5. Generally, methadone treatment requires many patients seeking

treatment to come to the clinic every day. During the initial induction period, the patient sees the clinic’s physician and is monitored so that the clinic’s

medical profess ionals can ensure that the patient’s medication is level and

stable. Thereafter, a patient comes to the clinic every day to receive a

methadone dose until the patient is eligible, through negative urine screens,

for a limited supply of take - home medication .

6. The substance abuse regulatory scheme in Florida is designed to

provide a statewide system of care for the prevention, treatment, and

recovery of children and adults with serious substance abuse disorders.

Substance abuse providers, which include MAT clinics, are subject to a strict

statutory, regulatory, and licensing scheme, which provides direction for a

continuum of community - based services including prevention, treatment, and

detoxification services. See Ch. 394 and 397, Fla. Stat.

7. The Departme nt is responsible for the licensure and oversight of all

substance abuse providers, and administers and maintains a comprehensive

regulatory process for this purpose. Chapter 397 , Florida Statutes, and

Florida Administrative c hapter 65D - 30 govern and regul ate this process.

8. The Department’s duties include the licensing and regulation of the

delivery of substance abuse services pursuant to chapter 397.

9. The licensed services include “medication - assisted treatment for opiate

use disorders.” § 397.311(26)( a)7., Fla. Stat.

10. The Department is tasked with determining the need for establishing

MAT providers for opiate addiction. There is currently an unmet need for

opioid treatment in Florida.

11. Generally, providers of MAT services for opiate addiction may only be

established in response to the Department’s determination and publication

for additional medication treatment services. See § 397.427, Fla. Stat.

12. The primary reason for the Department’s annual determination of

need requirement is to make sure clinics are located where people need them, as timely access to treatment is a recognized public health strategy for addressing substance abuse.

Florida Administrative Code Rule 65D - 30.014

13. Rule 65D - 30.014 (Rule) specifies the “Standards for Medication and

Methadone Maintenance Treatment” in Florida. Rule 65D - 30.014(3) 1 requires

that the following application procedures be followed:

1 The undersigned notes that the Department has amended the Rule since con ducting the

determination of need and evaluations pertinent to this matter; however, the undersigned

will refer to the version of the Rule (amended 6 - 15 - 19) that was promulgated and in effect at

that time.

(3) Determination of Need.

(a) The Department shall annually perform the

assessment detailed in the “Methodology of Dete rmination of Need Methadone Medication -

Assisted Treatment,” CF - MH 4038, May 2019,

incorporated by reference and available at

http://www.flrules.org/Gateway/reference.asp?No=Ref -

10669 . The Department shall publish the results of

the assessment in the Florid a Administrative

Register by June 30. Facilities owned and operated

by the Florida Department of Corrections are exempt from the needs assessment process.

However, these facilities must apply for a license to

deliver this service.

(b) The publication shal l direct interested parties to

submit a letter of intent to apply for licensure to

provide medication - assisted treatment for opioid

use disorders to the Regional Office of Substance Abuse and Mental Health where need has been

demonstrated.

1. The publicat ion shall provide a closing date for

submission of letters of intent.

2. Interested parties must identify the fiscal year of

the needs assessment to which they are responding

and the number of awards they are applying for per county identified in the asse ssment in their letter

of intent.

(c) Within seven (7) business days of the closing

date, the Regional Office shall notify parties who submitted a letter of intent on how to proceed.

1. If the number of letters of intent equals or is less

than the determ ined need, parties shall be awarded

the opportunity to proceed to licensure by completing an “Application for Licensure to Provide Substance Abuse Services” form, C&F - SA Form

4024, May 2019, incorporated by reference and

available at http://www.flrules.org /Gateway/

reference.asp?No=Ref - 10668 .

2. If the number of letters of intent exceeds the

determined need, parties shall be invited to submit a “Methadone Medication - Assisted Treatment

(MAT) Application to Proceed to Licensure Application” form, CF - MH 4041, May 2019,

incorporated by reference and available at

http://www.flrules.org/Gateway/reference.asp?No=Ref -

10671 . Applications may not be rolled over for

consideration in response to a needs assessment

published in a different year and may only be submitted for a current fiscal year needs

assessment.

a. The Department shall utilize an evaluation team

made up of industry experts to conduct a formal rating of applications as stipulated in the “Methadone Medication - Assisted Treatment (MAT)

Application Evaluati on” form, CF - MH 4040, May

2019, incorporated by reference and available at

http://www.flrules.org/Gateway/reference.asp?No=Ref -

10670 . The evaluation team members shall not be

affiliated with the Department, current methadone

medication - assisted treatment p roviders operating

in Florida, or the applicants.

b. The selection of a provider shall be based on the following criteria:

(I) Capability to Serve Selected Area(s) of Need and

Priority Populations. Area(s) of Need are the counties identified as having a need for additional clinics. Priority Populations are pregnant women,

women with young children, and individuals with

financial hardships;

(II) Patient Safety and Quality Assurance/

Improvement;

(III) Scope of Methadone Medication - Assisted

Treatment Serv ices;

(IV) Capability and Experience; and

(V) Revenue Sources.

c. Applicants with the highest - scored applications

in each county shall be awarded the opportunity to

apply for licensure for the number of programs

specified in their letter of intent to m eet the need of

that county. If there is unmet need, the next

highest scored applicant(s) will receive an award(s) based on the remaining need and the number of

programs specified in their letter of intent. This

process will continue until the stated need is met. Regional offices shall inform the highest - scoring

applicant(s) in writing of the award.

d. All awarded applicants must submit a letter of

intent to apply for licensure to the appropriate regional office within 30 calendar days after the award. If an applicant declines an award or fails to submit the letter of intent within the specified

time, the Department shall rescind the award.

After the Department rescinds the original award

for that selected area of need, the applicant with the next highest s core shall receive the award.

(d) Awarded applicants must receive at least a probationary license within two (2) years of the published needs assessment connected to their application. See rule 65D - 30.0036, F.A.C. for

licensure application requirements. A pplicants may

submit a request to the State Authority and Substance Abuse and Mental Health Program Office for an exception if unable to meet timeframes due to a natural disaster that causes physical

damage to the applicant’s building(s). Proof of

natural disaster and impact on physical property

must accompany the request. Upon receipt of the request for exception and accompanying proof,

a one - time extension shall be granted for six (6)

months. Providers who are delayed for a reason

other than a natural di saster may petition the

Department for a rule waiver pursuant to section 120.542, F.S.

14 . Rule 65D - 30.014(3)(c)2.a . through c . are the portions of the Rule that

address the application process of how providers will be selected to apply for

licensure, a nd are applicable to this proceeding.

15. The Rule cites section 397.321(5) as rulemaking authority, and cites

sections 397.311(26), 397.321, 397.410, and 397.427 as the laws implemented.

16. Rule 65D - 30.014(3)(c)2.a., requires that applicants for a partic ular

clinic be evaluated by industry experts who are independent of the

Department, and not Department personnel.

17. Rule 65D - 30.014(3)(c)2.b., further provides that industry experts

would select the best - suited applicant for each county pursuant to the p rocess

set forth in the Rule.

18. The Rule limited the evaluation team to the following five criteria:

(a) Capability to Serve Selected Area(s) of Need and

Prior Populations. Area(s) of Need are the counties

identified as having a need for additional cli nics.

Priority Populations are pregnant women, women

with young children, and individuals with financial hardships;

(b) Patient Safety and Quality

Assurance/Improvement;

(c) Scope of Methadone Medication - Assisted

Treatment Services;

(d) Capability and E xperience; and

(e) Revenue Sources.

19. Pursuant to the Rule, the applicants with the highest - rated score in

each county shall be awarded the opportunity to apply for licensure for the

number of programs specified in the applicant’s letter of intent to meet the

need of that county.

20. Neither chapter 397, nor the Rule, contain a procedure to break a tie

score between applicants.

FY 2018/2019 Needs Assessment

21. The Department conducted a n MAT needs assessment for fiscal year

2018/2019, and determined t hat 42 new MAT clinics were needed in Florida,

including one in Brevard County.

22. Six providers, including Metro and Central Florida, submitted letters

of intent/applications for Brevard County, which is the subject of the Notice.

23. As described in the Rule — specifically, rule 65D - 30.014(3)(c)2.a. — a

team of external evaluators received and scored the applications received for

Brevard County.

24. The evaluators’ scoring of applications for Brevard County resulted in

a tie for the highest score between Met ro and Central Florida.

25. The individual scores from the evaluators varied; however, the

combined scores for both Metro and Central Florida totaled 641 points each.

The individual scoring, as reflected within the Notice, provides as follows:

Brevard Cou nty Team 1 Evaluation Scores

Applicant by County Academic Medical Public Total

Policy

CFSATC dba Central 215 211 215 641

Florida Treatment Centers

Metro Treatment of Florida, 205 218 218 641

LP

CRC Health Treatment 214 187 212 613

Clinics, LLC

Maric H ealthcare, LLC 200 205 198 503

Psychological Addiction 143 177 149 469

Services, LLC

Treatment Centers of 156 120 167 443

America

The Tiebreaker

26. The Notice further provides the following concerning the tie scores

between Metro and Central Florida:

The evaluator scoring of applications for Brevard

County resulted in a tie for the highest score between Metro Treatment of Florida (Metro

Treatment) and Central Florida Treatment Centers

(Central Florida). The individual scores from the evaluators varied ; however, the combined scores

totaled 614 [sic] points each.

[ 2 ]

There is no tie breaking procedure set forth in rule

65D - 30.014, F.A.C., or other rules in the Florida

Administrative Code. To resolve the tie in this circumstance, the Department reviewed a variety

of possible factors in order to recommend an award.

These factors included performance indicators,

corporate status, and Florida operations as follows:

An average score for licensure inspections over the past three years

Data from the Department ’s Central Registry System from 10/1/2019 to 5/1/2020. Methadone medication - assisted treatment providers are

required to register and participate in a Department - approved electronic registry system by

rule 65D - 30.014(4)(f), F.A.C. The data points

considere d were:

o Percentage of a provider’s failure to enter required demographic information

o Percentage of a provider’s failure to enter required photographs

o Percentage of a provider’s failure to enter required

dosing information

Whether the provider operates exclusively in Florida

Involvement of women in senior management positions

2 The parties do not dispute that the total combin ed score should reflect 641, and not 614.

27. The Notice further provided:

Award Recommendation Criteria

(Top Score Highlighted in Bold Italics)

Provider Inspection % Missing % Missing % Missing

Average Demographics Photograph Dosing

Central

Florida 96.6% 1.6% 3.71% 2.33%

Treatment

Centers

Metro 93.6% 11.31% 1.62% 9.75%

Treatment of

Florida

28. Additionally, the Notice stated:

Based on the four performance - based measures,

Central Florida demonstrated a higher l evel of

adherence to licensure requirements and entering

data into the Central Registry System. In addition,

Central Florida operates exclusively in Florida and has a woman as the Chief Executive Officer of the corporation. Based on these factors, the Depa rtment recommends award of the opportunity

for licensure in Brevard County to Central Florida.

29. Metro challenges the agency statements in the Notice — as quoted in

paragraphs 27 and 28 above — that set forth the Department’s tiebreaking

procedure, as const ituting an unadopted rule.

3

30. Ms. Gazioch testified that, after receiving the scoring for Brevard

County from the evaluation team, which was a tie, “the Department made

the final decision of who to award to.” She stated that the Rule did not

address what the Department should do in the event of a tie. After consulting

with officials within the Department, she testified as to the decision the Department ultimately made:

3 The Petition only challenges the tie breaking criteria the Department utilized as an

unadopted rule upon which agency action cannot be based, pursuant to section 120.57(1)(e),

and does not challenge any other asp ect of the Department’s handling of the evaluation of

the letters of intent for the Brevard County license.

[T]he course of action that the Department took

was to award the opportunity to apply f or licensure

in Brevard County to Central Florida Treatment

Centers. And that was based on looking at the

average inspection scores, licensing inspection scores, looking at data entered into the central registry and compliance with certain items, such as m issing demographics, as well as missing

photographs in the central registry system, and also missing dosing in the central registry system.

31. Ms. Gazioch further testified as to the reason the Department

considered these particular tie - breaking factors:

Because they were factors that are equally – that

could be equally measured across, really, any licensed methadone opioid treatment provider. The

inspection average obviously speaks to compliance

with rule and statue in terms of implementing an opioid tr eatment program.

And then, obviously, the documentation that is

entered into the registry is very, very important to

make sure that, you know, as clients move through

the system and they move from one provider to another, or in the event of a hurricane wh ere somebody might have to get a guest dose, it’s

always very important to have the information

accurate and updated in the central registry system. So that’s another quality indicator that we felt was important to look at compliance with the information i n that system.

32. Ms. Gazioch also testified that as a result of the tie, the Department

was concerned that it might not be able to open a clinic in Brevard County,

even though “the need was clear based on the needs assessment. So we felt

that we were in a position that we had to move forward with a tiebreaker to

at least be able to establish one clinic that was needed in that county.”

33. The Department’s decision to award the opportunity to apply for

licensure in Brevard County to Central Florida was b ased on the tiebreaking

factors contained in the Notice and listed in paragraph 26 above. Obviously,

these tiebreaking factors are not found in the Rule.

34. There is no evidence in the record that establishes whether the

Department had time to initiate ru lemaking to adopt a tiebreaking procedure

for the Rule.

35. There is no evidence in the record that establishes whether

rulemaking (to establish a tiebreaking procedure) was feasible or practicable.

36. There is no evidence in the record that establishes w hether the

Department would have utilized a different tiebreaking procedure in another

county, if one had occurred. However, if a tie happened involving an

applicant that did not currently operate in Florida, or only recently began

operating in Florida, ma ny of the tiebreaking criteria utilized by the

Department for Brevard County would be inapplicable.

37, Although the Department developed and utilized the tiebreaking

procedures in arriving at its decision to award the opportunity to apply for

licensure in Brevard County to Central Florida, the external evaluators

scored the applications pursuant to the Rule, and the Department did not

change the scores from the external evaluators in arriving at its decision to

award the opportunity to apply for licensure in Brevard County to Central

Florida.

C ONCLUSIONS OF L AW

38. The Division has jurisdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569 and 120.57(1 ) .

Standing

39. Standing under chapter 120 is guided by t he two - pronged test

established in Agrico Chemical Corporation v. Department of Environmental

Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). Specifically, the court held:

We believe that before one can be considered to

have a substantial interest in the o utcome of the

proceeding, he must show 1) that he will suffer an

injury in fact which is of sufficient immediacy to

entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to prote ct. The first

aspect of the test deals with the degree of the

injury. The second deals with the nature of the

injury.

Id. at 482.

40. Although the parties stipulated that Metro and Central Florida have

standing to participate in this proceeding, the under signed finds that Metro,

as a competing applicant to Central Florida, has standing as the

Department’s decision to award the opportunity to proceed to licensure in

Brevard County will cause Metro to suffer an injury - in - fact. Additionally,

Central Florida h as standing to participate as its substantial interests will be

affected in the event Metro prevails.

Nature of the Proceeding

41. Section 120.57(1)(e) provides, in pertinent part, as follows:

(e)1. An agency or an administrative law judge may

not base ag ency action that determines the

substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. This subparagraph

does not preclude application of valid adopted rules

and applicable provisions of law to the facts.

2. In a matter initiated as a result of agency action proposing to determine the substantial interests of

a party, the party’s timely petition for hearing may

challenge the proposed agency action based on a rule that is an invalid ex ercise of delegated

legislative authority or based on an alleged unadopted rule. For challenges brought under this

subparagraph:

* * *

c. Section 120.56(4)(c) applies to a challenge

alleging an unadopted rule.

* * *

3. Notwithstanding subparagraph 1., if an agency

demonstrates that the statute being implemented

directs it to adopt rules, that the agency has not had time to adopt those rules because the requirement was so recently enacted, and that the agency has initiated rulemaking and is proceeding

ex peditiously and in good faith to adopt the

required rules, then the agency’s action may be

based upon those unadopted rules if the administrative law judge determines that rulemaking is neither feasible nor practicable and

the unadopted rules would not con stitute an invalid

exercise of legislative authority if adopted as rules.

42. Metro has the burden of proof to establish, by a preponderance of the

evidence, that the Department’s tiebreaking procedure contained in the

Notice was an unadopted rule. See § 120.57(1)(e) and (j), Fla. Stat.; Ag. for

Pers. with Disab. v. C.B., 130 So. 3d 713, 717 (Fla. 1st DCA 2013).

43. Section 120.52(16) defines a rule, in pertinent part, as:

[E]ach agency statement of general applicability that implements, interprets, or pr escribes 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.

4 4 . An unadopted rule is “an agency statement that meets the definition

of the term ‘rule,’ but that has not been adopted pursuant to the

requirements of s. 120.54.” § 120.52(20), Fla. Stat.

4 5 . In the instant matter, the is sue is whether the tiebreaking procedures

found in the Notice are an unadopted rule. And, more specifically, whether

the tiebreaking procedures are of “general applicability” to meet the

definition of a rule.

4 6 . In determining whether the tiebreaking proc edures are an unadopted

rule, the undersigned must consider its effect. “An agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.” Dep’ t

of Rev. v. Vanjaria Enterprises, Inc., 675 So. 2d 252, 255 (Fla. 5th DCA 1996)

(citing Dep’t of Transp. v. Blackhawk Quarry Co., 528 So. 2d 447, 450 (Fla.

5th DCA 1988)).

4 7 . In Department of Highway Safety and Motor Vehicles v. Schluter , 705

So. 2d 81 ( Fla. 1st DCA 1997), the First District held that certain policies of

the Florida Highway Patrol that were applied “in certain circumstances” did

not constitute rules, holding “[t]hey cannot be considered statements of

general applicability because the reco rd establishes that each was to apply

only under ‘certain circumstances.’” Id. at 82. The court further held that

these policies were not “‘ intended by their own effect to create rights, or to

require compliance, or otherwise to have the direct and consist ent effect of

law.’” Id. (quoting McDonald v. Dep’t of Banking & Fin. , 346 So. 2d 569, 581

(Fla. 1st DCA 1977) (emphasis added)).

4 8 . In Florida League of Cities, Inc. v. Administration Commission , 586

So. 2d 397 (Fla. 1st DCA 1991), the First District hel d that a policy that

imposes sanctions against municipalities who submitted comprehensive

plans that were late, or not in compliance, was not an unadopted rule. The court held:

With regard to the provisions of section 120.52(16), the policy isn’t one of “ general applicability” as it

applies only to municipalities who are late or not in compliance in submitting their comprehensive

plans. Every municipality in the state subject to

the requirements of the Growth Management Act is potentially subject to the po licy, but only those

which fail to comply with the statutory and rule

requirements will actually be considered for application of the policy. The policy has been applied, for the first time, to the first municipalities to ever come before the Administratio n Commission

for “nonsubmission.” On the record before this

court, the “noncompliance” portion of the policy has never been applied to any one at all. The sanctions policy is also not one of “general applicability” because it is not intended by its own eff ect to create

rights or to require compliance.

Id. at 406.

4 9 . The undersigned concludes that the tiebreaking procedures found in

the Notice do not meet the definition of a “rule,” as they cannot be considered

a statement of “general applicability” that i mplements, interprets, or

prescribes law or policy. The tiebreaking procedures in the Notice contain the

following qualifier: “[t]o resolve the tie in this circumstance . . . . ” The record

in this proceeding reveals that the Department used these tiebreaki ng

procedures in only one of the 42 reviews of applications for MAT licensure in

Florida, and there is no evidence that the Department would, or could, use

these tiebreaking procedures in any other Florida county if a tie were to occur in an application fo r MAT licensure (as the Rule does not require applicants

to be current MAT providers, it is possible that the Department would resort

to different tiebreaking procedures if a tie occurred involving a “new”

applicant). Because the tiebreaking procedures app ly in

this “certain circumstance” and do not otherwise have the “consistent effect”

of law, the undersigned concludes that they are not an unadopted rule. 4

50 . Metro also raises the questions of whether the tiebreaking procedures

are (a) arbitrary or cap ricious, or (b) enlarge, modify, or contravene the

specific provisions of law implemented. These are not legal considerations for

an unadopted rule challenge under section 120.57(1)(e). The only relevant

inquiry for the undersigned in this matter is whethe r the tiebreaking

procedures in the Notice constitute an unadopted rule.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that the Department of Children and

Families enter a final order di smissing the Petition for Formal

Administrative Hearing Involving Material Disputed Facts of Metro

Treatment of Florida, L.P., and awarding the MAT license in Brevard County

to CFSATC d/b/a Central Florida Treatment Centers.

4 The undersigned also finds instructive the administrative law judge’s determination that a

“coin toss” tie - breaking procedure in a competitive pr ocurement that was not supported by

the applicable statute or rule was not an unadopted rule because the procedure was “not a

statement of general applicability because it was, in essence, an ad hoc decision, for obscure

reasons, by which the Department el ected to break the tie purportedly involved in the case at

hand, solely applicable to these two applicants.” T.S. v. Dep’t of Educ., Div. of Blind Servs., Case No. 05 - 1695BID, RO at p. 29 - 30 (DOAH Oct. 7, 2005), rejected in part, Case No. DOE -

2005 - 1076 (Fl a. DOE Nov. 23, 2005). The undersigned notes that the Department of

Education, in its final order, rejected the administrative law judge’s findings and conclusions

as “immaterial, irrelevant, and unnecessary” on this issue because it determined that there

was in fact no tie between the applicants.

D ONE A ND E NTERED this 9th day of December, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

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 Clerk of the

Division of Administrative Hearings

this 9th day of December, 2020 .

C OPIES F URNISHED :

Daniel Ryan Russell, Esquire

Dean Mead

Post Office Box 351

Tallahassee, Florida 32302

(eServed)

John L. Wharto n, Esquire

Dean, Mead & Dunbar

Suite 815

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 3 - 231

1400 Village Square Boulevard

Tallahassee, Florida 32312

(eServed)

Will iam D. Hall, Esquire

Dean Mead

Suite 130

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Mia L. McKown, Esquire

Holland & Knight LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Lacey Kantor, Agency Clerk

Departm ent of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahasee, Florida 32399 - 0700

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahasee, Florida 32 399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1 , Room 202

1317 Winewood Boulevard

Tallahasee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exce ptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.