08-001309RU The Renaissance Charter School, Inc., And The Lee Charter Foundation, Inc. vs. Department Of Education Status: Closed DOAH Final Order on Wednesday, December 17, 2008.

Summary: Petitioners met their burden of proving that Respondent`s policy is a rule that has not been promulgated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE RENAISSANCE CHARTER SCHOOL, )

INC., AND THE LEE CHARTER )

FOUNDATION, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-1309RU

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

FINAL ORDER

This case came on for final hearing on October 13, 2008, in

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward J. Pozzuoli, Esquire

Stephanie Alexander, Esquire

Tripp Scott, P.A.

110 Southeast 6th Street, 15th Floor

Ft. Lauderdale, Florida 33301

Patrick K. Wiggins, Esquire

Patrick K. Wiggins, P.A.

Post Office Drawer 1657

Tallahassee, Florida 32302

For Respondent: Margaret O'Sullivan Parker, Esquire

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

The issue is whether Respondent's policy relative to the

applicability of the maximum class-size statute to charter

schools is a rule as defined in Section 120.52(16), Florida

Statutes, which has not been adopted as required by Section

120.54, Florida Statutes. 1 /

PRELIMINARY STATEMENT

On March 14, 2008, Petitioners The Renaissance Charter

School, Inc. and The Lee Charter Foundation, Inc. (Petitioners)

filed a Petition Seeking an Administrative Determination of the

Invalidity of an Agency Statement Defined as a Rule. The

petition challenges certain agency statements as un-promulgated

rules that apply Section 1003.03, Florida Statutes, the maximum

class-size statute, to charter schools.

Specifically, Petitioners challenge Respondent Department

of Education's (Respondent) policy that supports the following

two documents:

a. Technical Assistance Paper No:FU2005-04

(TAP 2005-04) entitled "Implementation of

the Class Size Reduction Amendment in

Charter Schools," which was issued in

December 2005.

b. Technical Assistance Paper No: FY2006-01

(TAP 2006-01) entitled "Class Size Reduction

Data Collection," which was updated in July

2006.

On March 19, 2008, the undersigned issued a Notice of

Hearing. The notice scheduled the hearing for April 9, 2008,

and set forth the following issue: whether TAP Nos: FY2005-04

and FY2006-01 are rules as defined in Section 120.52(15),

Florida Statutes, that have not been adopted as required by

Section 120.54, Florida Statutes. 2 /

On April 4, 2008, Respondent filed an unopposed Motion to

Stay Proceedings and to Continue Final Hearing. The motion

asserted that Respondent had transmitted a Notice of Development

of Rulemaking to the Florida Administrative Weekly . The motion

also stated that the Notice of Development of Rulemaking

addressed the challenged statements in this case. The

undersigned granted the motion on April 7, 2008.

On April 18, 2008, Respondent published a Notice of

Development of Rulemaking in the Florida Administrative Weekly ,

Volume 34, page 16. The notice states that the purpose of the

rule development was to "amend the Data Base Manuals to reflect

the collection and calculation of class-size data, and, if

necessary, promulgate a new rule to implement the requirements

of law related to class size." Among other provisions of law,

the notice cited Sections 1002.33(16) and 1002.33(24), Florida

Statutes, related to charter schools and Section 1003.03,

Florida Statutes, related to maximum class size.

On May 7, 2008, Respondent filed a Status Report and

Request for Extension of Abeyance. The Status Report provided

the following information: (a) Respondent published the Notice

of Development of Rulemaking in the April 18, 2008, issue of the

Florida Administrative Weekly ; (b) Respondent had monitored

several bills during the 2008 Florida Legislature that might

have impacted this case; (c) Respondent was ready to schedule a

rulemaking workshop in the last week of June; (d) Respondent had

agreed to withdraw or rescind TAP Nos: FY2005-04 and FY2006-01;

and (e) Respondent needed a 60-day continuance to conduct

rulemaking proceedings. Petitioners did not object to the

request for a continuance, provided that Respondent actually

withdrew or rescinded the TAPs.

On May 8, 2008, the undersigned issued an Order Continuing

Case in Abeyance. The order required the parties to file a

status report no later than July 8, 2008.

On May 28, 2008, Petitioners filed a Motion to Confirm

Rescission of Technical Assistance Papers. The motion requested

the undersigned to issue an order finding that the voluntarily

withdrawn TAPs had no force and effect and that Respondent could

not rely on them to take action affecting charter schools.

On June 3, 2008, Respondent filed a Response to Motion to

Confirm Rescission of Technical Assistance Papers. The response

indicated that Respondent had agreed to engage in rulemaking but

had not agreed that its challenged policy was incorrect. On

June 5, 2008, the undersigned issued an Order Denying Motion to

Confirm Rescission of Technical Assistance Papers.

On June 13, 2008, Respondent published a second Notice of

Development of Rulemaking in the Florida Administrative Weekly ,

Volume 43, page 24. The notice stated that the purpose of the

rule development workshop was to "provide an opportunity for the

public to provide input on the amendment of Data Base Manuals to

reflect the collection and calculation of class-size data, and

address the need, if any, to promulgate a new rule to address

class size. Among other provisions of law, the notice cited

Sections 1002.33(16) and 1002.33(24), Florida Statutes, related

to charter schools and Section 1003.03, Florida Statutes,

related to maximum class size.

On July 8, 2008, Respondent filed a Status Report. The

report indicated that Respondent held a rule workshop on

June 30, 2008, and intended to file a Notice of Proposed

Rulemaking in the next few days, with the matter to be included

on the agenda of the State Board of Education at its August 19,

2008, meeting. Respondent requested another 60-day continuance

to continue the rulemaking proceedings.

On July 9, 2008, Petitioners filed a Motion to Sever Issue,

Partially Terminate Abatement and to Set Matter for Hearing.

The motion alleged that the sole purpose of Respondent's rule

development was to amend Florida Administrative Code Rule 6A-

1.0014 to include the computational algorithm for class-size

determinations without reference to charter schools. According

to the motion, Respondent was not acting in good faith because

it did not intend to adopt a rule addressing the applicability

of the maximum class-size statute to charter schools.

On July 16, 2008, Respondent filed a Response to Motion to

Sever Issue, Partially Terminate Abatement and to Set Matter for

Hearing. The response asserted that: (a) the motion exceeds

the scope of a rule challenge proceeding; and (b) Petitioner had

raised the same legal issue in a pending petition for

declaratory statement.

On July 23, 2008, the undersigned issued an order denying

Petitioner's Motion to Sever. The order granted Respondent's

request for continued abatement.

On August 20, 2008, Petitioners filed a Renewed Motion to

Terminate Abatement and to Set Matter for Hearing. The motion

alleged that Respondent had not continued with rule development

in good faith. Specifically, the motion stated that Respondent

had not put its proposed rule on the State Board of Education's

August 19, 2008, agenda for adoption and had not filed a Notice

of Proposed Rulemaking.

On August 27, 2008, Respondent filed a unilateral Interim

Status Report. Without addressing Petitioners' allegations of

bad faith or providing any other explanations, the report

confirmed that Respondent had not filed a Notice of Proposed

Rule. The report also stated that, due to internal deadlines,

Respondent had failed to add the proposed rule to the State

Board of Education's August 19, 2008, agenda. The report

indicated that the proposed rule would be placed on the State

Board of Education's October 21, 2008, agenda and noticed in the

Florida Administrative Weekly at some unspecified date.

On September 5, 2008, the undersigned conducted a telephone

conference with the parties. During the conference,

Respondent's counsel admitted that Respondent was not

developing, and did not intend to develop, a rule relating to

the implementation of the maximum class-size statute to charter

schools.

After the September 5, 2008, telephone conference, the

undersigned issued a Notice of Hearing dated September 8, 2008.

The notice scheduled a final hearing on October 13, 2008, to

address the issue set forth above in the Statement of the Issue.

On September 12, 2008, Respondent published a Notice of

Proposed Rule in the Florida Administrative Weekly , Volume 34,

page 37. The notice states that the purpose of the amendment is

to "revise existing requirements of the statewide comprehensive

management information system which are necessary in order to

implement changes recommended by school districts and to make

changes in state reporting and local recordkeeping procedures

for state and/or federal programs. The effect is to maintain

compatibility among state and local information system

components."

Neither the notice nor the text of the proposed rule on its

face refers to charter schools or maximum class size. The

proposed rule does not cite to Sections 1002.33(16) and

1002.33(24), Florida Statutes, related to charter schools or

Section 1003.03, Florida Statutes, related to maximum class

size.

The proposed amendment to the rule incorporates by

reference and changes the date of Respondent's publication

entitled DOE Information Data Base Requirements: Volume I--

Automated Student Information System from 2007 to 2008.

During the hearing on October 13, 2008, Petitioners did not

present the testimony of live witnesses. Petitioners offered

15 exhibits. However, upon review of the record, a copy of

Petitioners' Exhibit No. 10 was not included in Petitioners'

composite of exhibits.

According to the index to Petitioners' composite of

exhibits, Petitioners’ Exhibit No. 10 is Respondent's 2009

Agency Proposal to the Legislature, suggesting revision to

Section 1002.33(16) and related documents. Respondent's counsel

admitted during the hearing that Respondent requested the 2008

Legislature to clarify whether class-size requirements apply to

charter schools and intended to do so again in 2009. Upon

consideration, the past and future actions taken by either party

to secure legislative clarification of question at issue here is

not relevant. Accordingly, only Petitioners' Exhibits Nos. 1-9

and 11-15 are accepted as evidence.

Petitioners’ Exhibit No. 14 is the deposition in lieu of

live testimony by Linda Champion. Petitioners’ Exhibit No. 15

is the deposition in lieu of live testimony by Lavan Dukes, Jr.

The latter deposition was filed on October 17, 2008, and again

on November 3, 2008.

Respondent did not present the testimony of any live

witnesses. Respondent offered 11 exhibits that were accepted as

evidence. Petitioners' objection to the relevance of

Respondent's Exhibit No. 5, a collection of e-mails and other

documents showing the appeals process involving a particular

charter school, is hereby overruled.

The hearing Transcript was filed on October 27, 2008.

Respondent filed a Proposed Final Order on November 6, 2008.

Petitioners filed a Proposed Final Order on November 7, 2008.

On November 6, 2008, Respondent published the final adopted

version of Florida Administrative Code Rule 6A-1.0014,

Comprehensive Management Information System, as amended. The

rule had an effective date of November 26, 2008. As of the date

that this Final Order was issued, Florida Administrative Code

Rule 6A-1.0014 has not been challenged.

On November 12, 2008, Petitioners filed Notice of Filing

Supplemental Exhibit/Motion for Tribunal to Take Official

Notice. Respondent has not filed a response in opposition to

the notice/motion, which is hereby granted.

Respondent's publication entitled DOE Information Data Base

Requirements: Volume I--Automated Student Information System,

2008 includes "Appendix AA, Class Size Average Algorithm."

Appendix AA does not contain a reference to charter schools.

Petitioners' July 9, 2008, Motion to Sever Issue, Partially

Terminate Abatement and to Set Matter for Hearing August 20,

2008, Renewed Motion to Terminate Abatement and to Set Matter

for Hearing are moot for reasons set forth below in the

Conclusions of Law.

FINDINGS OF FACT

1. Petitioners own and/or operate eight charter schools in

Florida. They have been "substantially affected" by

Respondent's maximum class-size policies at every level of

implementation.

2. Respondent's regulatory scheme requires charter schools

to submit information and to comply with statutory class-size

levels. Respondent's determination of non-compliance triggers

penalties and adverse consequences for charter schools.

3. Respondent has a comprehensive data management system

for public school reporting and accountability. The system

includes detailed definitions and reporting requirements on many

facets of public education, including information on students,

teachers, and public school facilities. This information has

been incorporated by reference into Florida Administrative Code

Rule 6A-1.0014, as database manuals.

4. For example, the manuals contain a detailed student

element using the Florida Inventory of School Houses (FISH) and

a Classroom Identification Number, which creates an identifier

for every classroom in every building and facility in the school

district. Charter schools that do not have a "FISH" number may

have one generated.

5. Respondent uses a computational algorithm to calculate

class size. The algorithm uses data elements and correlations

to create classroom ratios. Many of the data elements are

required by statute and/or existing rules for all public

schools, including charter schools.

6. For each school that does not meet class-size

compliance requirements, a portion of funds attributed to that

school will be transferred from operational funding to capital

outlay funds. The amount transferred is equal to the full-time

equivalent funds for the number of students over the cap.

Respondent makes the initial transfer calculation, which is then

replicated and approved by the State Board of Education, the

Florida Education Finance Allocation Committee, and the

Legislative Budget Committee.

7. In November of 2007, Respondent calculated class size

on the individual classroom level for all public schools,

including charter schools. Respondent utilized data from the

October student membership survey, which consists of data

collected by the Respondent from public schools.

8. The algorithm used by Respondent to calculate class

size, including the data collected in November 2007, was not

adopted as a rule until after the commencement of this

proceeding.

9. Class-size compliance forms, mandated by Respondent for

use by charter schools that are determined by Respondent not to

be in compliance with the maximum class-size act, have also not

been adopted by any formal rulemaking process.

10. Respondent's policies include an informal process for

"appealing" adverse determinations. The informal appeal process

has not been adopted as a rule.

11. Respondent has published several Technical Assistance

Papers, including TAP Nos: FY2005-04 and FY2006-01, applying the

maximum class-size act and a computational class-size algorithm

to charter schools. These papers were not adopted through the

formal rulemaking process.

12. Respondent withdrew TAP Nos: FY2005-04 and FY2006-01

by memorandum dated May 22, 2008. However, Respondent still

maintains its policy that the maximum class-size act applies to

Florida charter schools.

13. In 2007, charter schools reported data and received

data from Respondent regarding initial class-size figures. Some

charter schools appealed the class-size calculations and the

resulting transfer of operational funds to the State Board of

Education.

14. Cape Coral Charter School submitted information to

Respondent, leading to a downward adjustment in the funds to be

transferred to capital outlay. However, Cape Coral Charter

School lost funds in part because of Respondent's initial

determination that Cape Coral Charter School had failed to

comply with the maximum class-size act.

15. Respondent also formally determined in February 2008,

that Cape Coral Charter School was ineligible to offer a

voluntary pre-kindergarten program because of its 2007

determination that Cape Coral Charter School was not in

compliance with the class-size strictures.

16. The Florida Education Finance Program Appropriation

Allocation Conference verified the transfer of capital outlay

categorical funds as recommended by the Commissioner of

Education on January 17, 2008.

17. The Commissioner of Education recommended transfers in

funds based upon class-size compliance to the State Board of

Education, which approved the transfers on February 4, 2008.

18. On February 21, 2008, the Legislative Budget Committee

approved the transfer calculations.

19. Florida Administrative Code Rule 6A-1.0014

incorporates by reference the database manual that Respondent

uses to collect data from public schools on teachers, students

and classroom space. The amendment to the rule, which became

effective November 26, 2008, consists of an additional page in

the database manual (Appendix AA).

20. Appendix AA sets forth Respondent's class-size

algorithm, which has been in use for several years. Appendix AA

does not address the applicability of the maximum class-size act

to Florida charter schools.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Section 120.56(4), Florida Statutes.

22. Petitioners have the burden of proving by a

preponderance of the evidence that the challenged agency

statement meets the definition of a rule that has not been

adopted as required by Section 120.54(1)(a), Florida Statutes.

See Agrico Chemical Co. v. Department of Environmental

Regulation , 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

23. Respondent is an "agency” within the meaning of

120.52(1), Florida Statutes. Thus, Respondent is subject to the

rulemaking requirements of Section 120.54, Florida Statutes,

which provides as follows in pertinent part:

(1) General Provision Applicable to

All Rules Other than Emergency Rules.--

(a) Rulemaking is not a matter of

agency discretion. Each agency statement

defined as a rule by s. 120.52 shall be

adopted by the rulemaking procedure provided

by this section as soon as feasible and

practicable.

24. A rule is defined in Section 120.52(16), Florida

Statutes, in relevant part as follows:

(16) "Rule" means each agency

statement of general applicability that

implements, interprets, or prescribes law or

policy or describes the procedure or

practice requirements of an agency and

includes any form which imposes any

requirement or solicits any information not

specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule.

25. Rulemaking is necessary for "those statements which

are intended by their own effect to create rights, or to require

compliance, or otherwise to have the direct and consistent

effect of law." See McDonald v. Department of Banking and

Finance , 346 So. 2d 569, 581 (Fla. 1st DCA 1977).

26. This proceeding concerns the Education Article of the

Florida Constitution and several provisions of Florida law and

administrative rules as they relate to the collection and

calculation of public school data, the implementation of class-

size requirements and charter schools.

27. Pursuant to Section 1008.385, Florida Statutes,

Respondent has developed a comprehensive and integrated data

management and accountability system for all public schools.

According to Section 1008.385(2), Florida Statutes, "[t]he

system must be designed to collect . . . student and performance

data required to ascertain the degree to which schools and

school districts are meeting state performance standards . . .

."

28. Section 1, Article IX of Florida's Constitution was

amended in 2002 to include what is known as the Class Size

Amendment, which imposes a mandatory ratio of students assigned

to teachers in public school classrooms. The full test of

Section 1 Article IX, Florida Constitution, reads as follows:

SECTION 1. Public education.--

(a) The education of children is a

fundamental value of the people of the State

of Florida. It is therefore, a paramount

duty of the state to make adequate provision

for the education of all children residing

within its borders. Adequate provision

shall be made by law for a uniform,

efficient, safe, secure, and high quality

system of free public schools that allows

students to obtain a high quality education

and for the establishment, maintenance, and

operation of institutions of higher learning

and other public education programs that the

needs of the people may require. To assure

that children attending public school obtain

a high quality education, the legislature

shall make adequate provision to ensure

that, by the beginning of the 2010 school

year, there are a sufficient number of

classrooms so that:

(1) The maximum number of students who

are assigned to each teacher who is teaching

in public school classrooms for pre-

kindergarten through grade 3 does not exceed

18 students;

(2) The maximum number of students who

are assigned to each teacher who is teaching

in public school classrooms for grades 4

through 8 does not exceed 22 students; and

(3) The maximum number of students who

are assigned to each teacher who is teaching

in public school classrooms for grades 9

through 12 does not exceed 25 students.

The class size requirements of this

subsection do not apply to extracurricular

classes. Payment of the costs associated

with reducing class size to meet these

requirements is the responsibility of the

state and not of local school districts.

Beginning with the 2003-2004 fiscal year,

the legislature shall provide sufficient

funds to reduce the average number of

students in each classroom by at least two

students per year until the maximum number

of students per classroom does not exceed

the requirements of this subsection.

29. The Legislature's implementation of the Class Size

Amendment is found in Section 1003.03, Florida Statutes, which

provides as follows in relevant part:

(1) Constitutional Class Size

Maximums.--Pursuant to s. 1, Art. IX of the

State Constitution, beginning in the 2010-

2011 school year:

(a) The maximum number of students

assigned to each teacher who is teaching

core-curricula courses in public school

classrooms for pre-kindergarten through

grade 3 may not exceed 18 students.

(b) The maximum number of students

assigned to each teacher who is teaching

core-curricula courses in public school

classrooms for grades 4 through 8 may not

exceed 22 students.

(c) The maximum number of students

assigned to each teacher who is teaching

core-curricula courses in public school

classrooms for grades 9 through 12 may not

exceed 25 students.

Subsequent sections of the statute outline the implementation,

implementation options, accountability, and team teaching

strategies for carrying out the class-size mandate.

30. Charter schools are public schools and are part of the

state's program of public education. See §§ 1001.04(1) and

1002.33(1), Fla. Stat. They are operated by individuals or

other legal entities, who apply to and contract with local

school districts to establish and run charter schools in those

districts. See § 1002.33, Fla. Stat.

31. The charter school statute exempts charter schools

from all provisions of the Florida Education Code with certain

exceptions set forth in Section 1002.33(16), Florida Statutes,

which states as follows:

1002.33(16) EXEMPTION FROM STATUTES.--

(a) A charter school shall operate in

accordance with its charter and shall be

exempt from all statutes in chapters 1000-

1013. However, a charter school shall be in

compliance with the following statutes in

chapters 1000-1013:

1. Those statutes specifically

applying to charter schools, including this

section.

2. Those statutes pertaining to the

student assessment program and school

grading system.

3. Those statutes pertaining to the

provision of services to students with

disabilities.

4. Those statutes pertaining to civil

rights, including s. 1000.05, relating to

discrimination.

5. Those statutes pertaining to

student health, safety, and welfare.

(b) Additionally, a charter school

shall be in compliance with the following

statutes:

1. Section 286.011, relating to public

meetings and records, public inspection, and

criminal and civil penalties.

2. Chapter 119, relating to public

records.

The exceptions to the statutory exemption in Section

1002.33(16), Florida Statutes, do not require charter schools to

comply with Section 1003.03, Florida Statutes.

32. Respondent has statutory authority to carry out the

collection of data and the oversight of accountability for

public schools. Charter schools are specifically directed to

submit certain information required for the educational

accountability system governed by Sections 1008.31 and 1008.345,

Florida Statutes. Under Section 1002.33(9)(l)1., Florida

Statutes, "[c]harter schools are subject to the same

accountability requirements as other public schools, including

reports of student achievement information that links baseline

student data to the schools performance projections identified

in the charter."

33. Additionally, charter schools must report student

enrollment for funding in compliance with Respondent's

guidelines for electronic data formats for such data. See

Statutes, concludes with the following statement:

Total funding for each charter school shall

be recalculated during the year to reflect

the revised calculations under the Florida

Education Finance Program by state and the

actual weighted full-time equivalent

students reported by the charter school

during the full-time equivalent student

survey periods designated by the

Commissioner of Education.

34. Respondent argues that adoption of its policy is not

necessary in this case because facial application of the maximum

class statute, read in pari materia with other statutes, simply

carries out the directive of law and administers the

requirements of already-promulgated rules. This argument is

without merit because Section 1002.33(16), Florida Statutes,

exempts charter schools from most of the Education Code, except

as specifically required by statute.

35. There is no specific statutory requirement for charter

schools to comply with the maximum class-size statute.

Likewise, Florida Administrative Code Rule 6A-1.0014, as

amended, which contains the algorithm used to calculate class

size, does not even refer to charter schools.

36. Respondent's regulatory framework begins with the

initial and fundamental statutory interpretation that the

maximum class-size statute applies to charter schools

notwithstanding the exemption set forth in Section 1002.33(16),

Florida Statutes. Respondent's statutory interpretation,

amounting to an "exception to the exemption," means the

challenged statement is a rule as defined by Section 120.52(16),

Florida Statutes, that has not been adopted as required by

120.54(1)(a), Florida Statutes.

37. Moreover, Respondent's comprehensive regulatory

framework implements a policy that is generally applicable to

all charter schools. By its own terms, Respondent's un-adopted

rule creates rights and duties that have become the substantive

requirements of law.

38. Petitioner's have met their burden of proving that

Respondent's policy is an un-adopted rule. Respondent presented

no evidence that adoption of the policy as a rule was not

feasible and practicable. See § 120.56(4)(b), Fla. Stat.

39. Instead, Respondent argues that it does not have

statutory authority to adopt a rule exempting or requiring

compliance by charter schools with the maximum class-size

statute. This argument only reinforces the proposition that

Respondent does not have authority to implement a regulatory

framework requiring charter schools to comply with the class-

size statute.

40. Until the legislature determines otherwise or a rule

has been adopted, Respondent cannot apply the maximum class-size

statute to charter schools. It follows that Respondent cannot

use the class-size algorithm (Appendix AA), which is now an

adopted rule, to determine whether charter schools have met the

class-size requirements. Therefore, Petitioners' Renewed Motion

to Terminate Abatement and to Set Matter for Hearing is moot.

41. The undersigned retains jurisdiction to determine

attorney's fees. See § 120.596(4)(a), Fla. Stat.

DONE AND ORDERED this 17th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 2008.

1 / All references to Florida Statutes are to the 2008 version

unless otherwise indicated.

2 / Subsection 120.52(15) was renumbered as Subsection 120.52(16)

as a result of s.2, Chapter 2008-104, Laws of Florida, but the

text of the subsection did not change. The 2008 amendments were

not yet effective at the time the original Notice of Hearing was

issued.

COPIES FURNISHED :

Edward J. Pozzuoli, Esquire

Stephanie Alexander, Esquire

Tripp Scott, P.A.

110 Southeast 6th Street, 15th Floor

Ft. Lauderdale, Florida 33301

Patrick K. Wiggins, Esquire

Patrick K. Wiggins, P.A.

Post Office Drawer 1657

Tallahassee, Florida 32302

Margaret O'Sullivan Parker, Esquire

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

F. Scott Boyd, Executive Director

And General Counsel

Joint Administrative Procedural Committee

120 Holland Building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

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

Appeal in the appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.