01-000293RU Michael B. Harrison On Behalf Of Nolan Walter Harrison, A Minor vs. Charlie Crist, As Commissioner Of Education
 Status: Closed
DOAH Final Order on Friday, May 18, 2001.

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Summary: Petitioner alleged that a portion of a Department of Education pamphlet was an unpromulgated rule. Petitioner failed to meet his burden of proof.





20MINOR, )


23Petitioner, )


26vs. ) Case No. 01-0293RU





41Respondent, )


44and )





58Intervenor. )



63Pursuant to notice, this cause was heard by William R.

73Pfeiffer, the assigned Administrative Law Judge of the Division

82of Administrative Hearings, on February 16, 2001, in

90Tallahassee, Florida.


93For Petitioner : Michael B. Harrison, pro se

101870 Gerona Road

104St. Augustine, Florida 32086

108For Respondent : Ronald G. Stowers, Esquire

115Department of Education

118The Capitol, Suite 1701

122Tallahassee, Florida 32399-0400

125For Intervenor : Charles L. Weatherly, Esquire

132The Weatherly Law Firm

1363414 Peachtree Road, North

140Monarch Plaza, Suite 450

144Atlanta, Georgia 30326-1162

147Sidney F. Ansbacher, Esquire

151Upchurch, Bailey and Upchurch, P.A.

156Post Office Drawer 3007

160St. Augustine, Florida 32085-3007


168This is a rule challenge proceeding pursuant to Section

177120.56(4), Florida Statutes, in which Petitioner claims to be

186substantially affected by an agency statement that allegedly

194violates Section 120.54(1)(a), Florida Statutes. The subject

201matter at issue here concerns two sentences at page 11 of a

213pamphlet generated by Respondent, which is entitled "Florida's

221Educational Opportunities for Students with Sensory Impairments

228(2000)(the DOE Pamphlet)." The two sentences state that the

237Florida School for the Deaf and the Blind (FSDB) is an available

249educational option for sensory-impaired children in Florida.


258By Petition dated January 21, 2001, Michael B. Harrison, on

268behalf of Nolan Walter Harrison, a minor child (Harrison),

277challenged the validity of two sentences in the DOE Pamphlet as

288an allegedly unpromulgated rule of the Department of Education


298By Order dated January 30, 2001, the Division of

307Administrative Hearings (DOAH) assigned the matter to

314Administrative Law Judge William R. Pfeiffer. By Notice of

323Hearing dated February 1, 2001, the final hearing was scheduled

333for February 16, 2001.

337On February 5, 2001, FSDB filed a Motion to Intervene,

347principally alleging that the pamphlet at issue offered a

356meaningful explanation of FSDB as one of the educational

365opportunities available to sensory-impaired children in Florida.

372The Motion to Intervene was granted.

378On February 14, 2001, Respondent, FSDB, and Respondent

386filed Prehearing Statements.

389At final hearing February 16, 2001, Petitioner offered two

398exhibits, of which one was received in evidence. Petitioner

407also presented testimony of two witnesses : Ms. Shan Goff, Chief

418of Respondent's Bureau of Instructional Support and Community

426Services, and Dr. Margot Palazesi, also of that Bureau. Neither

436Petitioner nor his father testified. Respondent and FSDB

444offered five exhibits, all of which were received in evidence.

454Respondent also presented the testimony of Ms. Goff.

462The parties waived the time period for filing their

471Proposed Final Order and the entrance of the Final Order. There

482was no transcript filed. Petitioner and Respondent each filed a

492Proposed Final Order, which was duly considered in the

501preparation of this Final Order.



5101. Congress enacted the Individuals with Disabilities

517Education Act (IDEA) "to ensure that all children with

526disabilities have available to them a free appropriate public

535education that emphasizes special education and related services

543designed to meet their unique needs and prepare them for

553employment and independent living." 20 U.S.C. Section 1400

561(d)(1)(A). As a condition to IDEA funding, each state must have

572a policy in effect that executes the principal goal of the Act,

584which is to assure "all children with disabilities [have] the

594right to a free appropriate public education." 20 U.S.C.

603Section 1412(1). In 1997, Congress substantially amended IDEA.

611On March 12, 1999, regulations were published at Part B of Part

62334 of the Code of Federal Regulations (CFR), implementing the

6331997 IDEA amendments. The IDEA, as amended, is implemented in

643Florida at Section 230.23(4)(m), Florida Statutes, and Chapter

6516A-6, Florida Administrative Code .

6562. IDEA’s centerpiece is the "individualized education

663program" (IEP), which is a detailed statement "summarizing the

672child’s abilities, outlining the goals for the child’s education

681and specifying the services the child will receive." Polk v.

691Central Susquehanna Intermediate Unit , 853 F.2d 171, 173 (3d

700Cir. 1988). The IEP provides special education and related

709services tailored to the child’s unique needs and designed to

719provide the child with a "free appropriate public education."

72820 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13,

737300.15, 300.344-300.347; Section 230.23(4)(m )5, Florida

743Statutes; Rule 6A-6.03028, Florida Administrative Code. A team

751including the child’s teachers, local education agency

758representatives and the child’s parents creates the IEP;

76620 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule

7756A-6.03028, Florida Administrative Code.

7793. Both IDEA and the parallel Florida Statute state that

789special education students should be educated with non-disabled

797peers "to the maximum extent appropriate," and that separate

806classes or schooling should be used if "the nature or severity

817of the disability is such that education in regular classes with

828the use of supplementary aids and services cannot be achieved

838satisfactorily." See 34 CFR Section 300.550 and Section

846230.23(4)(m )6, Florida Statutes. Placement must be determined

854on a child-by-child basis.

8584. Section 230.23(4)(m), Florida Statutes, generally

864identifies the educational options available for sensory-

871impaired children in Florida, including FSDB. That statute is

880implemented in pertinent part by Respondent at Rules 6A-6.03014,

889and 6A-6.03022, Florida Administrative Code, which set school

897district admissions criteria for visually impaired and dual-

905sensory impaired children, respectively. One of the options

913listed in the statute is FSDB. Section 230.23(4)(m )3, Florida


9245. Section 242.3305, Florida Statutes, states the

"931responsibilities and mission" for FSDB. In pertinent part, it

940provides that FSDB educates "hearing-impaired and visually

947impaired students in the state who meet enrollment criteria."

956Rule 6D-3.002, Florida Administrative Code, implements that

963statute by setting forth the "Admission and Enrollment

971Requirements" for FSDB.

9746. The DOE Pamphlet was generated in 1997, and amended in

9852000, to explain the special education options available to

994parents of sensory-impaired school-age children in Florida.

1001The Parties

10037. Petitioner is a nine-year-old student who is legally

1012blind and otherwise developmentally impaired. He resides in St.

1021Johns County, Florida, and attends classes for the sensory-

1030impaired offered by the St. Johns County School District. His

1040parents moved from Belize in September, 1999, for the express

1050purpose of enrolling Petitioner at FSDB.

10568. Respondent is the head of the state agency that

1066published the DOE Pamphlet.

10709. FSDB is a state school that, pursuant to Section

1080242.3305, Florida Statutes, maintains a residential program for

1088educating sensory-impaired children in Florida.

1093The Factual Background

109610. The Petition asserts that Petitioner’s parents moved

1104to St. Johns County in 1999, where they "chose to enroll the

1116Petitioner in the . . . FSDB . . . as described in the DOE

1131Pamphlet." The Petition notes that FSDB declined to accept

1140Petitioner. The Petition further states Petitioner then filed

1148multiple due process petitions pursuant to Section 232.23(4)(m),

1156Florida Statutes, which "yielded an offer by FSDB that the

1166Petitioner be evaluated over an extended period in a temporary

1176assignment at FSDB." Thereafter, "As the parents’ choice of

1185enrollment was denied by FSDB, Petitioner’s parents enrolled the

1194Petitioner in the local St. Johns County School District." The

1204Petitioner further states that he later sought County support

1213for placement at FSDB, which was rejected because the County

1223believed it could adequately educate Petitioner.

122911. The records of DOAH adequately set forth the factual

1239background. Petitioner was denied admission to FSDB when he

1248applied in 1999. Thereafter, his parents filed a due process

1258petition to contest the FSDB denial (DOAH Case No. 99-493OE).

1268Petitioner and FSDB entered into a Settlement Agreement, which

1277allowed Petitioner to enroll at FSDB on a "temporary assignment

1287basis for extended evaluation [in] accordance with Rule 6D-

12963.002(4) . . ., for a period of 90 school days within which time

1310[Petitioner] will participate in the educational program as

1318established by the IEP team." The Petitioner dismissed his

1327case, however, for reasons not apparent in this record, the

1337child’s parents opted not to enroll their son in the school.

134812. On January 19, 2000, Petitioner’s parents again filed

1357a request for a due process hearing, alleging that they made a

"1369unilateral mistake" in entering into the first Settlement

1377Agreement. (DOAH Case No. 00-0348E). On March 1, 2000,

1386Petitioner and FSDB entered into another Settlement Agreement

1394(the Second Settlement Agreement). The Second Settlement

1401Agreement provided for the same 90-day temporary assignment,

1409which would commence on the first day of the 2000-2001 school

1420year. That agreement also provided that Petitioner could

1428contest any decision made by FSDB after the temporary

1437assignment. The Petitioner then dismissed his petition.

144413. On Ju ly 9, 2000, Petitioner filed a third request for

1456due process hearing against FSDB (DOAH Case No. 00-2871E). It

1466alleged that both settlement agreements denied rights under the

1475IDEA, violated FSDB’s admissions rules, and the Second

1483Settlement Agreement was an attempt by FSDB to "circumvent the

1493requirements of law." Petitioner requested a hearing to

1501determine "their conformity to both IDEA and FSDB Rule 6D."

151114. On August 8, 2000, DOAH dismissed the case on two

1522grounds. First, Petitioner failed to allege a dispute subject

1531to DOAH review, because Petitioner "clearly stated his intent to

1541continue his enrollment in the public schools of St. Johns

1551County . . .," and further stated his satisfaction with that

1562school system. Final Order in N.H. v. F.S.D.B. , Case No. 00-

15732871E at p. 3. Second, it was dismissed because the Second

1584Settlement Agreement barred the action. Id. at p.3, et seq .

1595That order was not appealed, and became final.

160315. Petitioner filed a fourth due process petition on

1612August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP

1622meeting set for August 8, 2000, which was set by FSDB to

1634implement the Second Settlement Agreement. Petitioner later

1641withdrew that request.

164416. FSDB has repeatedly stated, and continues to maintain,

1653that it will excuse the terms of the Second Settlement Agreement

1664to allow Petitioner to remain in the St. Johns County School

1675District. Alternatively, FSDB continues to state Petitioner may

1683temporarily enroll at FSDB pursuant to the Second Settlement


1693The Current Case

169617. Petitioner filed the instant rule challenge on

1704January 21, 2001. His father received a copy of the predecessor

17151997 version of the DOE Pamphlet in August 2000, from a

1726representative of the Dade County School District. He asserts

1735the following two sentences constitute an unpromulgated rule in

1744violation of Section 120.56(4), Florida Statutes:

1750Parents in Florida have the right to choose

1758the educational setting they consider most

1764appropriate for their child who has a

1771hearing or visual impairment. FSDB is an

1778option in the continuum of placement for the

1786education of students with sensory


179218. The Petition claims Petitioner is adversely affected

1800by the two sentences due to the following three injuries:

1810(1) his "parents were denied the right to choose the educational

1821setting they feel most appropriate for their child"; (2) his

1831sensory-impaired peers attend FSDB; and (3) the St. Johns County

1841School District loses funding for special education of sensory-

1850impaired children because most local parents of sensory-impaired

1858children choose FSDB over the District.

186419. At the hearing, Petitioner presented the testimony of

1873two employees of the Respondent, Shan Goff and Margot Palazesi.

1883Both testified that the Respondent promulgated the DOE Pamphlet

1892as an informational document for parents and others dealing with

1902sensory-impaired children in Florida.

190620. Ms. Goff testified that DOE generates a multitude of

1916similar brochures and pamphlets. She further stated that there

1925is no relation between funding of FSDB and funding of local

1936school districts’ special education programs.

194121. The DOE Pamphlet is clear. At page 3, the DOE

1952Pamphlet distinguishes between mandatory education of sensory-

1959impaired children in school districts and discretionary

1966admissions at FSDB:

1969School districts must provide educational

1974programs to each eligible student who has a

1982sensory impairment, beginning on the

1987student’s third birthday and continuing

1992until the student’s 22nd birthday or until

1999the student graduates with a standard

2005diploma, whichever comes first.

2009* * *

2012For students between the ages of 5 and 22

2021who have sensory impairments and who meet

2028enrollment requirements, the FSDB provides

2033educational and co-curricular programs,

2037support services, day school and residential


204422. Immediately following the two challenged sentences,

2051the DOE Pamphlet advises:

2055Interested parents may contact the School’s

2061Parent Information Office for information

2066regarding admission . . .

207123. There is no evidence that the DOE Pamphle t, read in

2083pari materia , is inconsistent with the laws, regulations, or

2092policies of the federal government.



210124. The Division of Administrative Hearings has

2108jurisdiction over the parties to and the subject matter of this

2119proceeding. Section 120.56, Florida Statutes.


212525. Pursuant to Section 120.56(4), Florida Statutes, any

2133substantially affected person may challenge an agency statement

2141as an allegedly unpromulgated rule that violates Section

2149120.54(1)(a), Florida Statutes. In order to meet the

2157substantially affected test, the Petitioner must establish that,

2165as a consequence of the agency statement, the Petitioner will

2175suffer injury in fact and that the injury is within the zone of

2188interest that is regulated or protected. See generally F.A.C.S.

2197v. Dept. of Health , 2000 W.L. 1763541 (Fla. DOAH

2206Nov. 16, 2000). The Petitioner bears the burden of proof to

2217establish standing by a preponderance of the evidence. The

2226Continental Ins. Co. v. Dept. of Insurance , 1998 W.L. 866219

2236(Fla. DOAH May 12, 1998).

224126. Petitioner has demonstrated sufficient proof to

2248establish standing in this case. While Respondent argues that

2257the Second Settlement Agreement between Petitioner and FSDB bars

2266this action, Petitioner's rule challenge addresses Respondent's

2273alleged unpromulgated rule providing for FSDB as a guaranteed

2282educational option.

228427. Specifically, in the Second Settlement Agreement, FSDB

2292in fact agreed to temporarily admit Petitioner. Petitioner,

2300however, has challenged the Respondent's pamphlet as agency

2308policy which allegedly constitute a rule which provides

2316unconditional admission to FSDB. Notwithstanding his agreement

2323with FSDB, Petitioner has standing to challenge the alleged


233328. While Petitioner asserts that he also has standing

2342because local students enrolled at FSDB result in a loss of

2353legislative funding from the St. Johns School District, there

2362was no reliable evidence presented to support his claim and it

2373is rejected.

2375Alleged Rule

237729. For the purposes of C hapter 120, Florida Statutes, the

2388term "rule" is defined, in pertinent part, as follows at Section

2399120.52(15), Florida Statutes:

2402(15) "Rule" means each agency statement of

2409general applicability that implements,

2413interprets or prescribes law or policy or

2420describes the procedure or practice

2425requirements of an agency and includes any

2432form which imposes any requirement or

2438solicits any information not specifically

2443required by statute or by an existing

2450rule . . .

245430. Section 120.56(4), Florida Statutes, in pert inent

2462part, states:



2474(a) Any person substantially affected by an

2481agency statement may seek an administrative

2487determination that the statement violates

2492Section 120.54(1)(a). The petition shall

2497include the text of the statement or a

2505description of the statement and shall state

2512with particularity facts sufficient to show

2518that the statement constitutes a rule under

2525Section 120.52 and that the agency has not

2533adopted the statement by the rulemaking

2539procedure provided by Section 120.54.

254431. Section 230.23(4)(m), Florida Statutes, in pertinent

2551part, states:

2553(m ) Exceptional students - [The School

2560District shall p]rovide for an appropriate

2566program of special instruction, facilities,

2571and services for exceptional students as

2577prescribed by the state board as acceptable,

2584including provisions that:

2587* * *

25903. The school board annually provide

2596information describing the Florida School

2601for the Deaf and Blind and all other

2609programs and methods of instruction

2614available to the parent or guardian of a

2622sensory impaired student.

262532. Section 242.3305, Florida Statutes, in pertinent part,


2634242.3305. Florida School for the Deaf and

2641the Blind; responsibilities and mission.

2646(1) The Florida Sch ool for the Deaf and the

2656Blind is a state supported residential

2662school for hearing-impaired and visually

2667impaired students in preschool through 12th

2673grade. The school is part of the state

2681system and shall be funded through the

2688Division of Public Schools and Community

2694Education of the Department of Education.

2700The school shall provide educational

2705programs and support services appropriate to

2711meet the education and related evaluation

2717and counseling needs of hearing-impaired and

2723visually impaired students in the state who

2730meet enrollment criteria . . . .

2737(2) The mission of the Florida School for

2745the Deaf and the Blind is to utilize all

2754available talent, energy, and resources to

2760provide free appropriate public education

2765for all eligible sensory-impaired students

2770of Florida . . . .

277633. Rule 6D-3.002, Florida Administrative Code, contains

2783several "Admission and Enrollment Requirements" for FSDB. The

2791Rule requires applicants to be "deaf," "visually impaired" or

"2800deaf-blind," and meet specific admissions standards. See ,

2807e.g. , Rule 6D-3.002(1)( i) ,(j) and (2), Florida Administrative


281734. The DOE Pamphlet at page 3 clearly states that

2827applicants to FSDB must "meet enrollment requirements." It is

2836consistent with Sections 230.23(4)(m )3, and 242.3305, Florida

2844Statutes, and Rule 6D-3.002, Florida Administrative Code, which

2852provide that a student must meet certain criteria to be admitted

2863to FSDB. The DOE Pamphlet does not reasonably limit or alter

2874the statutorily authorized admissions criteria, as set forth by

2883Rule 6D-3.002, Florida Administrative Code.

288835. Furthermore, it is unreasonable to read the two

2897sentences at issue out of context. It is a fundamental tenet of

2909statutory and contractual construction that one must read all

2918parts of a document in pari materia . See , e.g. , The Continental

2930Insurance Co. v. Dept. of Insurance , 1998 WL 866219 (Fla. DOAH

2941May 12, 1998)(stating "[s ]tatutes governing the [regulated

2949parties] must be read in pari materia, not in isolation," in

2960dismissing a rule challenge to an agency statement). Upon

2969reading the DOE Pamphlet as a whole, the two sentences cannot be

2981reasonably interpreted to unconditionally offer admissions to

2988FSDB. They merely identify an option available to parents of

2998sensory-impaired children in Florida.

300236. The DOE Pamphlet, including the challenged sentences

3010is not a "rule" as defined by Section 120.52(15), Florida



3022Based on the foregoing Findings of Fact and Conclusions of

3032Law, it is ORDERED that Petitioner’s challenge be dismissed.

3041DONE AND ORDERED this 18th day of May, 2001, in

3051Tallahassee, Leon County, Florida.



3059Administrative Law Judge

3062Division of Administrative Hearings

3066The DeSoto Building

30691230 Apalachee Parkway

3072Tallahassee, Florida 32399-3060

3075(850) 488- 9675 SUNCOM 278-9675

3080Fax Filing (850) 921-6847


3085Filed with the Clerk of the

3091Division of Administrative Hearings

3095this 18th day of May, 2001.


3104Michael B. Harrison

3107870 Gerona Road

3110St. Augustine, Florida 32086

3114Ronald G. Stowers, Esquire

3118Department of Education

3121The Capitol, Suite 1701

3125Tallahassee, Florida 32399-0400

3128Charles L. Weatherly, Esquire

3132The Weatherly Law Firm

31363414 Peachtree Road, North

3140Monarch Plaza, Suite 450

3144Atlanta, Georgia 30326-1162

3147Sidney F. Ansbacher, Esquire

3151Upchurch, Bailey and Upchurch, P.A.

3156Post Office Drawer 3007

3160St. Augustine, Florida 32085-3007

3164James A. Robinson, General Counsel

3169Department of Education

3172The Capitol, Suite 1701

3176Tallahassee, Florida 32399-0400


3185A party who is adversely affected by this Final Order is

3196entitled to judicial review pursuant to Section 120.68, Florida

3205Statutes. Review proceedings are governed by the Florida Rules

3214of Appellate Procedure. Such proceedings are commenced by

3222filing one copy of a notice of appeal with the Clerk of the

3235Division of Administrative Hearings and a second copy,

3243accompanied by filing fees prescribed by law, with the District

3253Court of Appeal, First District, or with the District Court of

3264Appeal in the Appellate District where the party resides. The

3274notice of appeal must be filed within 30 days of rendition of

3286the order to be reviewed.

Select the PDF icon to view the document.
Date: 05/18/2001
Proceedings: DOAH Final Order
Date: 05/18/2001
Proceedings: Final Order issued (hearing held February 16, 2001). CASE CLOSED.
Date: 03/19/2001
Proceedings: Proposed Final Order filed by R. Stowers.
Date: 03/05/2001
Proceedings: Petitioner`s Proposed Final Order (filed via facsimile).
Date: 02/16/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
Date: 02/15/2001
Proceedings: Petitioner`s Prehearing Statement (filed via facsimile).
Date: 02/14/2001
Proceedings: Respondent and Intervenor`s Prehearing Statement (filed via facsimile).
Date: 02/14/2001
Proceedings: Notice of Appearance and Substitution of Counsel (filed by R. Stowers via facsimile).
Date: 02/12/2001
Proceedings: Respondent`s Answers to Petitioner`s First Interrogatories (filed via facsimile).
Date: 02/09/2001
Proceedings: Order Accepting Qualified Representative issued.
Date: 02/09/2001
Proceedings: Order Granting Petition for Leave to Intervene issued (Florida School for the Deaf and the Blind)
Date: 02/09/2001
Proceedings: Petitioner`s Exhibit List (filed via facsimile).
Date: 02/08/2001
Proceedings: Objection to Petitioner`s Second Interrogatories (filed via facsimile).
Date: 02/08/2001
Proceedings: Respondent`s Objections to Petitioner`s Notice to Produce (filed via facsimile).
Date: 02/08/2001
Proceedings: Motion for Admission of Qualified Representatives (filed via facsimile).
Date: 02/08/2001
Proceedings: Amendments to Petitioner`s Witness List (filed via facsimile).
Date: 02/08/2001
Proceedings: Petitioner`s Motion for Judicial Notice (filed via facsimile).
Date: 02/08/2001
Proceedings: Notice of Taking Deposition Duces Tecum (4 filed via facsimile).
Date: 02/08/2001
Proceedings: Response to Petition to Intervene by the Florida School for the Deaf and the Blind (filed via facsimile).
Date: 02/07/2001
Proceedings: Notice to Produce (filed via facsimile).
Date: 02/07/2001
Proceedings: Petitioner`s Second Interrogatories to Respondent (filed via facsimile).
Date: 02/07/2001
Proceedings: Motion in Limine and in the Alternative Motion for Protective Order Regarding Depositions Proposed by Petitioner (filed via facsimile).
Date: 02/06/2001
Proceedings: Petition to Intervene by the Florida School for the Deaf and Blind (filed via facsimile).
Date: 02/05/2001
Proceedings: Petitioner`s Witness List (filed via facsimile).
Date: 02/05/2001
Proceedings: Notice to Produce (filed via facsimile).
Date: 02/05/2001
Proceedings: Petitioner`s Second Interrogatories to Respondent (filed via facsimile).
Date: 02/01/2001
Proceedings: Order of Pre-hearing Instructions issued.
Date: 02/01/2001
Proceedings: Notice of Hearing issued (hearing set for February 16, 2001; 9:30 a.m.; Tallahassee, FL).
Date: 01/30/2001
Proceedings: Petitioner`s First Interrogatories to Respondent (filed via facsimile).
Date: 01/30/2001
Proceedings: Order of Assignment issued.
Date: 01/25/2001
Proceedings: Letter to Liz Cloud from A. Cole w/cc: Carroll Webb and Agency General Counsel sent out.
Date: 01/23/2001
Proceedings: Non-Rule Statement by the Florida Department of Education is an Invalid Exercise of Delegated legislative Authority filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Tallahassee, Florida
Department of Education


Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):

Related Florida Rule(s) (4):