IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PINELLAS COUNTY, A NOT FINAL UNTIL TIME EXPIRES TO
POLITICAL SUBDIVISION OF FILE MOTION FOR REHEARING AND
THE STATE OF FLORIDA, DISPOSITION THEREOF IF FILED
Appellant,
v. CASE NO. 1D14-4187
FLORIDA DEPARTMENT OF
JUVENILE JUSTICE,
Appellee.
_____________________________/
Opinion filed December 4, 2015
An appeal from an order from the Department of Juvenile Justice.
Christina K. Daly, Interim Secretary.
Nancy Meyer, and Carl E. Brody, Clearwater, for Appellant.
John Milla, Tallahassee, for Appellee.
MARSTILLER, J.
Pinellas County appeals a Department of Juvenile Justice (“Department”)
final order entered on remand from this court after we reversed an earlier order in
Okaloosa County v. Department of Juvenile Justice,
131 So. 3d 818 (Fla. 1st DCA
2014). The county asserts the post-mandate order does not fully comply with our
mandate. Concluding otherwise, we affirm.
This controversy dates back to December 2009, when the Department issued
its annual county-by-county reconciliation of juvenile detention facility utilization
for fiscal year (“FY”) 2008/09 pursuant to section 985.686, Florida Statutes (2008),
which sets out the state-county cost sharing and allocation framework for secure
detention facilities in Florida. As to Pinellas County, the Department asserted a
credit due of $465,463.89. On January 26, 2010, the Department issued a letter to
the counties setting out the following procedures for challenging the assessments in
the annual reconciliation:
• Counties had until February 15, 2010, to file their challenges to the
reconciliation with the Department.
• The Department would review the challenges and determine if any
adjustments need to be made and which counties will be affected by those
potential changes. All affected counties would be notified of the potential
adjustments even if those counties did not submit a challenge.
• If challenges to the reconciliation could not be resolved with the concurrence
of all affected counties, the Department would file a request for a hearing with
the Division of Administrative Hearings (“DOAH”).
• Affected counties would be able to present their case regarding the
adjustments at the hearing.
Pinellas County filed a challenge according to the outlined procedure. But before
the Department completed its review of the challenges, the county petitioned for an
evidentiary hearing at DOAH.
2
On March 23, 2010, the Department wrote to the counties announcing it had
completed its analysis of all challenges to the FY 2008/09 reconciliation. As to
Pinellas County, the Department’s proposed adjusted reconciliation amount was a
$918,522.41 credit. The letter advised the counties that if they wanted to challenge
the proposed adjustments, they must file a petition for hearing with the Department;
the letter also recognized that certain counties, like Pinellas County, had already filed
such petitions. On March 25, 2010, Pinellas County wrote to the Department
acknowledging the adjusted amount as an additional credit, and asserting a total
credit due for FY 2008/09 of $1,383,986.36.
The DOAH proceedings concluded with an August 22, 2012, recommended
order concluding that the Department had deviated from the requirements of section
985.686(5) by failing to calculate “actual costs” for detention cost-sharing for FY
2008/09. Only 12 counties had challenged the December 7, 2009, figures; thus, as
to the remaining counties, the incorrectly calculated amounts were final. Of the 12
challenging counties, only seven took their challenges to DOAH and were parties to
the administrative proceedings. Of those seven, the ALJ determined that four—
Pinellas County, Brevard County, Hillsborough County and Santa Rosa County—
had accepted the Department’s adjusted amounts set forth in its March 23, 2010,
letter. The remaining three counties—Hernando County, Miami-Dade County and
Broward County—had not accepted the 2010 adjustments and were entitled “to an
3
accounting of [their] actual costs for providing predisposition juvenile detention for
fiscal year 2008-2009.” Accordingly, the recommended order stated:
RECOMMENDATION
Based on the foregoing Findings of Fact and
Conclusions of Law, it is
RECOMMENDED that the Department of Juvenile
Justice enter a final order that:
A. Reinstates the amounts set forth in the
Department’s December 7, 2009, annual reconciliation
letter for the following Counties: Alachua, Orange,
Escambia, City of Jacksonville, Bay, Seminole, and
Okaloosa;
B. Reinstates the amounts set forth in the
Department’s March 23, 2010, adjustment letter for the
following Counties: Pinellas, Brevard, Hillsborough, and
Santa Rosa; and
C. Provides that the Department will, without
undue delay, provide a revised assessment that states the
actual costs of providing predisposition secure juvenile
detention care for fiscal year 2008-2009 for the following
Counties: Hernando, Miami-Dade, and Broward.
Disagreeing with the ALJ’s conclusions that it had incorrectly interpreted
section 985.686(5) and deviated from the statute’s calculation requirements, the
Department entered a final order on January 11, 2013, rejecting recommendations B
and C in the recommended order, and ordering that “The annual reconciliation
announced on December 7, 2009, is reinstated for all counties.”
On the counties’ appeal of the 2013 final order, the Department conceded
4
error—acknowledging it had misinterpreted portions of the detention cost-sharing
statute1—and agreed to adopt the ALJ’s recommendation to reinstate the amount
due to Pinellas County consistent with the Department’s March 23, 2010, adjustment
letter. See Okaloosa
County, 131 So. 3d at 819. This court, accepting the
Department’s concession, reversed the final order and remanded with instructions to
the Department to adopt the recommended order “in its entirety.”
Id. at 821. Our
mandate issued on February 25, 2014.
On August 14, 2014, the Department entered a “Final Order on Remand From
First District Court of Appeal,” setting aside the previous final order and adopting
each of the three recommendations set out in the DOAH recommended order. With
respect to Pinellas County, the final order on remand reinstated the amount set out
in the March 23, 2010, adjustment letter as the amount Pinellas County should have
been assessed for its share of detention costs during FY 2008/09. The Department
concluded the order with a footnote informing the counties that:
No moneys were appropriated for Fiscal Year 2014/2015
to credit counties. Some counties continue to pursue
credits or refunds for past fiscal years. Only the
Legislature has the power to cure such complaint.
It is this footnote Pinellas County takes issue with in the current appeal,
1
Our decision in Department of Juvenile Justice v. Okaloosa County,
113 So. 3d
1074 (Fla. 1st DCA 2013), which issued after the Department’s 2013 final order,
had affirmed a different ALJ’s ruling that the Department incorrectly interpreted
section 985.686 in calculating cost-share.
5
arguing the Department failed to fully adopt the recommended order, as directed by
this court, because it has failed to apply a $1.38 million FY 2008/09 overpayment
credit toward the county’s future cost-sharing obligation. The Department counters
that its final order fully complies with this court’s mandate because the issue of
crediting or reimbursing counties for overpayments is a separate matter requiring
legislative spending authorization.
At oral argument in this appeal, the parties discussed at great length the
method by which the Department can credit Pinellas County and the other counties
for their overpayments, and whether legislative authority is needed. While this issue
is, in our view, a critical matter needing resolution sooner rather than later, whether
by declaratory action, or by the Department’s agreement to seek necessary
appropriations, or by some other vehicle—indeed, according to counsel for the
Department during oral argument, total creditable or reimbursable overpayments
from FY 2008/09 forward, when calculations are complete, will be “truly staggering
numbers,” reaching “at least” $40 million—it is not one for us to resolve in this
appeal. The DOAH recommended order we affirmed and directed the Department
to adopt was limited to correcting the juvenile detention cost-sharing calculations
for FY 2008/09; it made no recommendation concerning credits for or
reimbursements of overpayments. The only recommendations the ALJ made are
those
quoted supra, and the Department’s final order on remand adopted them all.
6
Any action or inaction by the Department beyond that is simply not ripe for our
consideration in this appeal. Pinellas County thus has failed to demonstrate the
Department’s noncompliance with this court’s mandate, and we accordingly affirm
the final order on appeal.
AFFIRMED.
THOMAS, J., CONCURS; KELSEY, J., DISSENTS WITH OPINION.
7
KELSEY, J., dissents with opinion.
I respectfully dissent to the extent the majority decision stops short of
affording the counties any remedy for the Department’s failure to comply with
section 985.686(5) of the Florida Statutes and the credit requirement of Rule 63G-
1.008 of the Florida Administrative Code (now rule 63G-1.017(6)). We have
jurisdiction over the question of a remedy in two ways: because remedy was an
inherent part of the prior appeal and encompassed in our previous decision, and
because remedy is properly addressed in this appeal after the Department stated its
holding on remedy in its new final order on remand.
We previously held that the counties’ respective shares of costs must be based
on actual costs and cannot encompass the “tethering” that the Administrative Law
Judge invalidated. Okaloosa County v. Dep’t of Juvenile Justice,
131 So. 3d 818,
820-21 (Fla. 1st DCA 2014). Throughout the proceedings before the ALJ and in the
prior appeals here, it has been undisputed that the counties have a statutory right to
receive credits under section 985.686(5) and Rule 63G-1.008 of the Florida
Administrative Code. The rule clearly provides that credits function as a reduction
of future billings, just as debits are added to future billings:
(2) If a county’s actual usage is found to have exceeded the
amount paid during the fiscal year, the county will be invoiced for the
excess usage. The invoice will accompany the reconciliation statement,
and shall be payable on or before January 31.
(3) If a county’s actual usage was less than the estimated amounts
8
paid during the fiscal year, the county will be credited for its excess
payments. Credit will be reflected in the November billing, and will
carry forward as necessary.
Fla. Admin. Code R. 63G-1.008 (2006). The function of debits and credits in the
“reconciliation” process remained the same under the new rule adopted in 2010:
(6) If the total amount paid by a county falls short of the amount owed
based on actual utilization, the county will be invoiced for that
additional amount. The amount due will be applied to the county’s
account. An invoice will accompany the reconciliation statement, and
shall be payable on or before March 1. If the amount paid by a county
exceeds the amount owed based on actual utilization, the county will
receive a credit. The credit will be applied to the county’s account and
be included on the invoice sent in November.
Fla. Admin. Code R. 63G-1.017(6).
The ALJ concluded that the requirements of the rule were clear and that the
counties’ accounts were to be credited or debited to reflect the Department’s revised
calculations. The provision of credits and debits was an inherent part of the analysis
of how actual costs were to be calculated. In our opinion in Okaloosa we also stated
that the counties would be “debited or credited for the difference” between estimated
payments and actual costs.
Okaloosa, 131 So. 3d at 820 (“If the county’s actual cost
is more or less than the estimated payments made, then the county will be debited or
credited for the difference.”) (emphasis added). See also Department of Juvenile
Justice v. Okaloosa County,
113 So. 3d 1074 (Fla. 1st DCA 2013) (affirming ALJ’s
rejection of the Department’s erroneous interpretation of statutory factors used to
calculate counties’ shares of costs). Our previous holding, by requiring calculation
9
of the counties’ shares of costs based on actual costs, necessarily required that credits
be extended to the counties deemed to have made overpayments under the plain
language of Rule 63G-1.008. Thus, the Department was required to do so pursuant
to our earlier opinion.
In addition, remedy is a legal issue of statutory and rule interpretation that is
squarely at issue in this appeal from the Department’s final order, and was briefed
and argued, and therefore we can and should resolve it now. On remand from our
2014 decision, the Department added to its new final order the assertion that “[o]nly
the Legislature has the power to cure” the counties’ ongoing attempts to receive
actual credits for past fiscal years. Presented as it was in a final order of the
Department, this constitutes a ruling on the counties’ entitlement to the remedy of
receiving credits to reflect actual costs, and the counties properly challenge it in this
new appeal. Indeed, had the counties failed to challenge it, they risked waiving any
objection to it.
The Department’s failure to make the counties’ credits function as real credits
applied to future years’ funding obligations violates our holding and mandate
in Okaloosa County and violates the plain meaning of section 985.686 and Rule
63G-1.008. To remedy a violation of constitutional or statutory rights, the judicial
branch has the authority to order an executive branch agency to comply with statutes
that require the expenditure of funds. See, e.g., Florida Dept. of Agr. and Consumer
10
Svcs. v. Cox,
947 So. 2d 561 (Fla. 4th DCA 2006) (rejecting agency’s separation of
powers argument and upholding court’s authority to order agency to fund notice to
class members in citrus canker litigation as required by procedural rule); see
also Florida Dept. of Children & Families v. J.B.,
154 So. 3d 479, 481 (Fla. 3d DCA
2015) (illustrating that although the judicial branch may not order the state to
exercise its discretionary spending authority in a specified manner, the issue is
different when the question is the enforcement of a statutory obligation).
The credit requirement is a legal obligation of the state acting through the
Department under section 985.686. The burden is therefore on the Department, not
the counties, to secure the means to comply with the Department’s legal
obligations. See § 216.181, Fla. Stat. (2014) (requiring agencies to advise the
Governor and Legislature if budget amendments are necessary to fund agency
obligations); § 216.301, Fla. Stat. (2014) (requiring state agencies to avoid reversion
of appropriated funds when valid incurred obligations exist). The counties’
obligations must be adjusted to reflect credits due from prior years, and if application
of these credits results in a deficit of funding, it is not the counties’ obligation to
remedy that deficit. See Art. VII, § 18, Fla. Const. (relieving counties and
municipalities of the obligation to comply with unfunded mandates).
11
