Findings Of Fact There are no issues of material fact in dispute. 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 “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
The Issue The issue in this case is whether Comprehensive Plan Amendment 2002-02, adopted by the Town of Jupiter (Town) as Ordinance 62-02, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties Petitioner, Anna Current, resides at property on the Jupiter River in the Town of Jupiter at 711 Ryan Road, Jupiter, Florida 33477. The Town of Jupiter (Town) is a municipality of the State of Florida whose address is 210 Military Trail, Jupiter, Florida. The Department of Community Affairs (DCA) is the state land planning agency with the duty to review comprehensive plan amendments pursuant to Sections 163.3164(20) and 163.3184. The Amendment Amendment 2002-02 (Amendment), which was adopted by the Town's Ordinance 62-02, consists of four text amendments, one amendment to the Transportation Map Series, and one amendment to the future land use map (FLUM) element. The first text amendment amends the Transportation Element by adding Policy 2.2.6. Policy 2.2.6 requires updates to the Town's Bicycle Transportation Master Plan. The second text amendment amends the text of the Conservation Element. Specifically, it amends Policy 1.2.5 to reference the June 2000 as opposed to the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan." The third text amendment adds two new policies to the Intergovernmental Coordination Element of the Town’s Comprehensive Plan. These policies reference and adopt certain parameters for the Western Corridor Interlocal Agreement, an interlocal agreement between the Town, Palm Beach County and Martin County. The fourth text amendment amends certain tables related to Level of Service and Capacity Standards in the Public School Facilities Element. The fifth change adds Figures 10 and 10a and amends Figures 5, 6 and 7 of the Transportation Map Series. The sixth and final section of the Amendment changes the Future Land Use Map for the Town of Jupiter. Specifically, it redesignates 12.3 acres in Jupiter Community Park from the recreation land use category to the conservation land use category. The Adoption Process On August 13, 2002, the Town's Planning and Zoning Commission, acting as the local planning agency (LPA), held a public hearing and recommended that the Jupiter Town Council approve seven separate comprehensive plan amendments. These amendments consisted of five text amendments, an amendment to the Transportation Map Series (with modifications), and a Future Land Use Map (FLUM) amendment. Petitioner testified that this LPA public hearing was not advertised in advance. The Town's witness, David Kemp, who is the Town's Principal Long Range Planner, did not dispute Petitioner's testimony; instead, he testified that he did not recall whether this LPA public hearing was advertised. There was documentary evidence that, on July 7, 2003, the Town Planner sent an e-mail message to the Town's Clerk informing her that, with regard to Petitioner's request for "proof of publication" of the advertisement for the LPA meeting on August 13, 2002, the Town Planner's staff had reviewed all relevant files and was unable to locate the requested public records. There also was documentary evidence that the Town's Records and Archives Manager notified the Town's Clerk by e- mail on April 29, 2003, that Petitioner had requested a copy of the "proof of publication" of the advertisement for the LPA public hearing on August 13, 2002, and had been informed that no advertisement was necessary since it was a regular meeting of the LPA. The minutes of the LPA's meeting on August 13, 2002, show that the six component parts being considered as part of the proposed Amendment 2002-02 were on the LPA's regular meeting consent agenda. The minutes indicate that two of the components were "pulled" from the consent agenda. The minutes also indicate that no one in attendance at the meeting spoke on the proposed amendments. The minutes do not reflect that the LPA or any of its members invited public participation before a vote was taken on the six components of the proposed amendments. Neither the Town nor DCA introduced evidence of an advertisement for the LPA's meeting on August 13, 2002, notwithstanding their listing of proof of publication of the advertisement as a joint exhibit of the DCA and the Town in their Joint Prehearing Statement, and Petitioner's stipulation to its admissibility. The minutes of the LPA meeting on August 13, 2002, reflect that Petitioner was not present during the consent agenda portion of the meeting. They indicate that she appeared later for the regular agenda portion of the meeting and spoke in favor of a site plan/special exception/PUD application being considered during that portion of the meeting. On Tuesday, September 3, and Tuesday, September 17, 2002, the Jupiter Town Council held public hearings and approved the transmittal of Ordinance 62-02, consisting of all seven of the proposed plan amendments recommended by the LPA, to DCA. The transmittal public hearing was held on a weekday at least seven days after the advertisement for the public hearing, which appeared in the Palm Beach Post, a newspaper of general circulation in the Town, on August 25, 2002. The advertisement included the title of the proposed Ordinance 62- 02, in bold: AN ORDINANCE OF THE TOWN . . . AMENDING ORDINANCE NO. 57-89, THE COMPREHENSIVE PLAN OF THE TOWN . . . ; AMENDING THE TEXT OF THE CONSERVATION, FUTURE LAND USE, INTERGOVERNMENTAL COORDINATION, AND PUBLIC SCHOOL FACILITIES ELEMENTS; AMENDING THE TEXT AND MAP SERIES OF THE TRANSPORTATION ELEMENT; PROVIDING FOR AN AMENDMENT TO THE FUTURE LAND USE ELEMENT TO CHANGE THE LAND USE DESIGNATION OF A 12.3 ACRE PROPERTY LOCATED IN THE NORTHERN PART OF THE TOWN'S COMMUNITY PARK AT 3377 CHURCH STREET FROM A RECREATION DESIGNATION TO A CONSERVATION DESIGNATION; . . . . The advertisement also included a map showing the location of the 12.3-acre property. At the transmittal hearing, the public was invited to comment, and three individuals offered public comments. On September 26, 2002, DCA received the proposed amendments. Although the Town requested that DCA not review the Amendment or issue an Objections, Recommendations, and Comments Report (ORC report), Petitioner requested a review and ORC report, and DCA determined that a review and ORC report were necessary, even if not requested by Petitioner. DCA conducted a review of the proposed amendments for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Florida Administrative Code Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan), and issued an ORC report to the Town of Jupiter on November 27, 2002. The ORC report raised only one objection, specifically to a text amendment that would allow for increased densities in the Coastal High Hazard Area. The Town Council held a public hearing on December 17, 2002, at which six of the seven proposed changes contemplated by the transmitted proposed amendments were adopted. (The Town did not adopt the amendment to which DCA has objected in the ORC report.) This adoption hearing was held on a weekday at least five days after the advertisement for the public hearing appeared in the Palm Beach Post, a newspaper of general circulation in the Town. The advertising appeared on December 10, 2002. The advertisement included, in bold, the same title of the proposed Ordinance 62-02 as the transmittal hearing advertisement, except that reference to the text change to the Future Land Use Element was omitted. The advertisement also included a map showing the location of the 12.3-acre property (as well as other properties affected by other ordinances being advertised at the same time). At the adoption hearing, Petitioner offered written comments. There were no other comments or objections. Petitioner attempted to prove that the Town failed to meet a statutory requirement to provide sign-forms for comprehensive plan amendment hearings. She proved that no sign-in forms were provided for the LPA hearing on August 13, 2002. She did not prove that no sign-in forms were provided for the transmittal hearings in September 2002 or for the adoption hearing in December 2002. On December 23, 2002, DCA received the Town’s adopted Amendment 2002-02 for review. DCA conducted a review of adopted Amendment 2002-02 for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan). Amendment 2002-02 was found to be "in compliance." DCA's witness, Senior Planner, Dr. Joseph Addae- Mensa, testified that DCA's review of an adopted plan amendment includes verification that the local government held the required advertised transmittal and adoption hearings. According to his testimony, this ordinarily is accomplished by a simple review to ascertain that the local government included the usual statement in its submission to DCA to the effect that the required advertised public hearings had been held. In this case, the Town's submission included such a statement, and DCA's review went no further. Town's Public Participation and Advertising Requirements Petitioner asserts that the Town's adoption of Resolution No. 58-87 on December 1, 1987, specified additional or more stringent public participation and notice procedures for the consideration and recommendation of comprehensive plans and amendments by the Town's LPA and for the adoption of such plans by the Town's governing body. However, Section 1 of the Resolution stated: The Town of Jupiter hereby adopts the following procedures [for the LPA and Town Council] to implement . . . [minimum] criteria as established by [DCA] . . . pending the enactment of permanent provisions by Ordinance, provided, however, that any failure by the Town to fully comply with the technical requirements hereof shall not be cause to invalidate the adoption of any Amendments to the Jupiter Comprehensive Plan which otherwise meet the requirements of law . . . . In addition, on March 3, 1998, the Town's new home-rule charter became effective. It provided in Article VI that "procedures for the adoption of ordinances and resolutions for the Town of Jupiter shall be as made and provided by the Florida Statutes, as may be hereafter amended and revised" and that the Town Council "may provide, by appropriate action, requirements for the adoption of ordinances and resolutions which are more stringent than those set forth in the Florida Statutes." There was no evidence of any subsequent "appropriate action" to establish procedures that are "more stringent . . . than those set forth in the Florida Statutes." Resolution 58-87 was neither repealed nor re-enacted after the effective date of the home-rule charter. However, it appears that the home-rule charter should be viewed as repealing or superseding Resolution 58-87. In any event, for purposes of this proceeding, as indicated, Resolution 58-87 did not add any compliance review criteria to the "requirements of law." Data and Analysis for the Conservation Element Petitioner attempted to challenge the text amendment to the Conservation Element of the Town’s Comprehensive Plan. The Amended Petition states: "The restrictions placed on the Loxahatchee River Buffer were hastily prepared, flawed, and dubious in value. It was submitted without valid data and analysis." It was determined at the hearing that Petitioner actually mistakenly was seeking to challenge either a subsequent FLUM amendment considered by the Town Council in July, 2003, or land development regulations that were considered by the Town Council in February, 2003. These are not the changes to the Conservation Element of the Town’s Comprehensive Plan adopted in Amendment 2002-02. The amendment at issue here merely changed a reference from the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan" to the June 2000 plan. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Conservation Element, staff analysis, and a narrative explanation of why this essentially housekeeping item was needed. Petitioner presented no evidence at hearing that this minor change to the Conservation Element was submitted without adequate valid data and analysis. Data and Analysis for the Transportation Element Petitioner challenged the modification of Transportation Map Series figures 5, 6 and 7, and on the basis that they were supported by old data from 1999. DCA did not raise this as an objection in their ORC report. The Florida Department of Transportation ("FDOT") did raise the issue of old data as an objection in its comment letter to DCA dated October 21, 2002. After receipt of the comment letter, however, Town Staff contacted FDOT regarding the objection. Town Staff explained that the Town was completing a transportation study related to the Indiantown Road Corridor and indicated the Town's commitment to incorporating the data and analysis contained in the final transportation study into the Transportation Element in a subsequent round of comprehensive plan amendments. At the final hearing, David Kemp, Principle Long Range Planner for the Town, testified that the Transportation Map Series amendments were to reflect only the possible alignment of a future roadway, that the Town had utilized the most current data based on the interlocal agreement and the alignments shown in the interlocal agreement, and that the Town had resolved the FDOT's concerns regarding the data. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Transportation Element and Map Series, staff analysis which responded to FDOT's objections, and a narrative explanation describing the changes and why they were needed. Petitioner did not prove beyond fair debate that the Transportation Map Series amendment was not supported by data and analysis. Other Substantive Issues Other issues Petitioner may have raised in her challenge to the compliance determination in this case either were dropped or were unfounded, some having been mistakenly directed to Town action other than the Amendment at issue in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the Town's Amendment 2002-02 to be "in compliance." DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002.
The Issue Whether statements issued by the GEO Group, Inc. (GEO), a private company under contract with the Respondent, Department of Children and Family Services (Respondent or Department) to operate the FCCC constitute unpromulgated "rules" within the definition of Section 120.52, Florida Statutes (2007).
Findings Of Fact According to Part V of Chapter 394, Florida Statutes (2007), the Legislature determined that sexually violent predators generally have antisocial personality features that are not amenable to mental illness treatment. In response to a finding that such persons are likely to engage in repeated acts of criminal behavior, the Legislature created a civil commitment procedure for the long-term care and treatment of sexually violent predators. The FCCC was created as the appropriate facility to house and treat these individuals. See §§ 394.910 et seq., Fla. Stat. (2007). When a "sexually violent predator" is to be released from the incarceration portion of a criminal sentence, the person is committed to the custody of the Department for "control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." See § 394.917, Fla. Stat. (2007). The GEO Group, Inc. (GEO) is a private company that operates the FCCC under a contract with the Respondent. The contract ends on June 30, 2009. The contract dictates that GEO will: . . . fully implement all programs for FCCC residents which shall include a comprehensive sexual offender treatment program and all services necessary, including internal security, to support the full-time residential care of persons living in a secure facility, as described in the Program Description (attached as Exhibit H). The contract also directs GEO to: . . . be responsible for implementing a resident behavior management system that encourages good conduct, corrects misconduct, and generally promotes safety and security (as described in Exhibit H, Program Description). The contract specifies that resident behavior management would allow residents to earn or lose privileges in accordance with their conduct at FCCC; would list specific acts and types of misconduct, with a specific range of consequences associated with each act or type of misconduct; would secure confinement for residents whose conduct endangers the safe and secure operation of the facility; and would have an adequate due process mechanism for residents impacted by a behavior decision. The Respondent did not and does not dictate the specifics of how FCCC internal policies and guidelines are to be worded or developed. Timothy J. Budz, MSW, LCSW, is the FCCC facility administrator. Mr. Budz is responsible for the day-to-day operations at the FCCC and supervises employees and activities at the facility. He is also responsible for the development and implementation of internal policies and guidelines that GEO uses to comply with its contractual obligations with the Department. The Petitioner, Larry Phillips, is involuntarily committed to the FCCC. The record is not clear as to how long Mr. Phillips has resided at the FCCC. The Petitioner has challenged internal operating policies employed at the FCCC. Generally speaking, the operating procedures that are the subject of this proceeding are policies that held over from when the FCCC was operated by another company, Liberty Behavioral Health Corporation (Liberty). GEO took over this facility from Liberty in July 2006 and although it has attempted to revisit some of the policies (to include consideration of input from residents at FCCC, staff at FCCC, and the Respondent), the policies have not been completely reviewed or revised. Implicit in the testimony of Mr. Budz was a recognition that this Petitioner has been at the facility since (at least) July of 2006. The policies left by Liberty are not all enforced by GEO. The Petitioner challenges FCCC policy D-4. The policy (Respondent's Exhibit 9) states: It is the policy of the Florida Civil Commitment Center (FCCC) to ensure that residents will be able to send and receive mail and authorized packages. The "purpose" for policy D-4 states: To ensure that FCCC residents can receive and send mail and receive authorized packages in a timely manner while protecting against the introduction of contraband and other prohibited materials into the facility. FCCC policy D-4 was effective July 29, 2005. Attached to the three page policy were forms to be used in connection with mail that is received and sent. The Petitioner did not testify. There is no evidence that the Petitioner has been denied the ability to receive or send mail through the United States Postal Services (all mail and packages must be sent to residents via this method per the policy procedure). The Petitioner also challenged FCCC policy D-13. This policy provides: The Florida Civil Commitment Center will utilize restrictions on, or suspensions of, resident privileges in response to behavior that poses a danger to self, others, or property, or which is disruptive or otherwise interferes with the treatment milieu. The stated purpose of FCCC policy D-13 was: To limit or suspend privileges for residents who exhibit inappropriate or threatening behavior, until it is determined that the resident is able to exercise the privileges in a safe and proper manner. FCCC policy D-13 was effective March 3, 2003. Listed among its procedures are the restrictions and suspensions that are individualized to the resident and circumstance of the behavior reported. The Petitioner did not establish that any restrictions or suspensions of privileges had been enforced against him for any reason. At all times during the hearing of this cause the Petitioner and his qualified representative exhibited appropriate behavior and did not appear to be limited by any of the restrictions noted in policy D-13. The Petitioner challenged FCCC policy D-14. This policy states: The Florida Civil Commitment Center will impose restrictions on a resident's movement in response to inappropriate behavior, which is disruptive to the normal, efficient operation of the facility. The purpose of FCCC policy D-14 is: To limit exposure to external stimulation for residents who are disruptive and/or demonstrate a need to reduce their level of agitation. FCCC policy D-14 was effective March 3, 2003. Among the procedures noted for this policy is a provision of daily visits by a clinical therapist for a resident with movement restrictions. The Petitioner did not establish that he was ever subjected to movement restrictions. The Petitioner did not establish that he was ever denied a visit by a clinical therapist. The Petitioner did establish, however, that certain rooms used for residents whose movements are limited are the equivalent of a locked "cell" as that term is generally understood. The Petitioner challenged FCCC policy D-15. This policy was effective October 27, 2003, and has been identified as "under revision" by GEO. This policy, entitled "Behavior Intervention and Management," is one of the policies GEO is redrafting. In this regard GEO has sought input from the Respondent but is not governed by or dictated to follow any suggestions offered by the Department. Nevertheless, as adopted at the time of hearing, the policy provided: The Florida Civil Commitment Center will intervene when residents behave in a manner that jeopardizes their own safety or the safety of the facility, its staff, and/or residents; disrupts the orderly operation of the facility; and/or is inconsistent with the treatment goals established for the resident. Interventions will be based on the therapeutic and clinical needs of the resident, with due consideration given to the rights, consistent fair treatment, and well being of all residents and facility staff. The purpose of FCCC policy D-15 is: To establish a set of procedures whereby inappropriate behavior can be corrected or controlled in a reasonable and timely fashion, and the resident has a meaningful opportunity to participate in the behavior management process and seek review of the final disposition. The procedure for FCCC policy D-15 recognizes "minor misbehavior" that does not pose a significant threat and denotes its differences from resident behavior that does jeopardize security or safety. The Petitioner did not establish that he committed or was subject to either designation (minor misbehavior or otherwise). It is unknown if the policy has ever been enforced against this Petitioner. At hearing the Petitioner and his qualified representative conducted themselves in an appropriate, respectful manner and did nothing by word or act to suggest either has exhibited conduct within the governance of this policy. FCCC policy D-16 provides: The Florida Civil Commitment Center will utilize Secure Management in response to aggravated misbehavior, which jeopardizes the safety and security of the facility, its staff, and/or residents or seriously and maliciously disrupts the normal operations of the facility. The purpose for FCCC policy D-16 is: To restrict the mobility of a resident whose aggravated misbehavior demonstrates the need for a more secure environment until such time as the resident's mental status has returned to a manageable level and the resident no longer poses a risk to the safety or efficient operation of the facility. Under the procedures of this policy, the resident's liberty (mobility) and privileges may be limited. Again, as previously stated, the rooms wherein a resident who is subject to this policy may be confined are similar to "cells." Additionally, a resident subject to this confinement may be placed in hand and leg restraints. There is no evidence that the Petitioner has ever been subjected to this policy or is likely to be subjected to the terms of this policy. Further, there is no evidence that the policy would be applied to any resident not governed by the specific terms of the policy, ie. someone who must be placed in a locked room to prevent injury to others, damage to property, or threats to the security or normal operation of the facility. FCCC policy D-16 is currently under revision, but the version applicable to this case became effective March 3, 2003. The Petitioner challenged FCCC policy D-21 but it was not received in evidence. Petitioner's Exhibit H (not in evidence) purported to be this policy but is, on its face, outdated and has been superseded by another policy: FCCC policy D-4. As previously discussed, the receipt of packages by residents is governed by the "Packages and Mail" provision found in FCCC policy D-4. FCCC policy G-10 was also not admitted into evidence. It is entitled "Pornography, Prohibited and Inappropriate Materials." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit L. The Petitioner did not present any evidence regarding this policy. FCCC policy G-24 was also not admitted into evidence. It is entitled "Resident Computer Lab." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit N. The Petitioner did not present any evidence regarding how he has been adversely or positively affected by this policy. The Petitioner may have sought to challenge FCCC policy D-5. This policy (admitted into evidence as Respondent's Ex. 12) is entitled "Resident Communications, Complaints and Grievances." FCCC policy D-5 was effective June 23, 2003. The reason it is unclear whether this is the policy Petitioner sought to challenge is due to the numbering of policies. The FCCC policy included with Petitioner's pre-filed exhibits, Petitioner's Exhibit P, was numbered "G-5" however that provision purportedly dealt with "Supervision of Resident Movement." As to either policy, the Petitioner did not present any evidence to establish he had been adversely affected or would likely be affected by the policies. As previously indicated, the Petitioner abandoned his challenge to FCCC policy E-6, Use of Medical Seclusion and Restraints (Petitioner's Pre-filed but not offered Exhibit I). The Petitioner's pre-filed Exhibit K [FCCC policy G-6 entitled "Facility Searches"] was not admitted into evidence. The Petitioner offered no evidence to support a challenge to this provision. The Petitioner also challenged the FCCC Resident Handbook. The handbook was revised August 1, 2005, and portions of it are being revisited by GEO. A copy of the Handbook is provided to the FCCC resident upon arrival. It is also available to FCCC residents within the dormitories. The handbook gives an overview of the various FCCC operational policies and affords the resident a concise, quick reference for topics also addressed during the resident's orientation. One of the problems in this case stems from a general confusion as to what policy will govern a particular situation. In this regard GEO has not provided current editions of policies to the Petitioner or his qualified representative. In some instances it may be that the policy is still under consideration. The Respondent does not have control over the terms of the policies that have been or will become effective. The FCCC internal operating policies are ultimately determined by GEO and its staff. Presumably, GEO will provide updated versions of all policies to the Petitioner (and others at FCCC) when the handbook and policies are completed. The ability of a resident to review internal policies would undoubtedly prove instructive as to the types of behaviors and consequences likely to result from them. Additionally, as a grievance procedure will be provided it should afford residents with an outlet to vent their disagreements with any policy.
