88-000847RX Florida Education Association United vs. Department Of Education
 Status: Closed
DOAH Final Order on Wednesday, December 14, 1988.

View Dockets  
Summary: Rule mandating retirement age for school bus drivers invalid because not a Bona Fide Occupational Qualification and it contravenes laws against age discrimination. Arbitrary.





13Petitioner, )

15and )




25) CASE NO. 88-0847RX

29Intervenor, )


32vs. )




40Respondent. )



45Pursuant to notice, a formal hearing was held in this case on October 10

59and 11, 1988, in Tallahassee, Florida, before the Division of Administrative

70Hearings, by its designated Hearing Officer, Diane K. Kiesling.


80For Petitioner: Lorene C. Powell

85Assistant General Counsel


89208 West Pensacola Street

93Tallahassee, Florida 32301

96For Respondent: Carl J. Zahner

101Carolyn S. Holifield

104Assistant General Counsels

107Department of Education

110Knott Building

112Tallahassee, Florida 32399

115For Intervenor: Vernon T. Grizzard

120Attorney at Law

123116 South Monroe Street

127Tallahassee, Florida 32301


131The ultimate issue is whether Rule 6A-3.0141(1)(a) Florida Administrative

140Code, is an invalid exercise of delegated legislative authority.


153The Petitioner, Florida Education Association/United (FEA/United), filed a

161Petition seeking a declaration that Rule 6A-3.0141, where a maximum age for

173employment of school bus drivers is established, is an invalid exercise of

185delegated legislative authority in that it constitutes age discrimination in

195violation of the Florida Human Rights Act, Section 760.10, Florida Statutes, and

207Section 112.044, Florida Statutes, and the Age Discrimination in Employment Act

218of 1967, 29 U.S.C. Section 621, et seq., as well as the Fourteenth Amendment of

233the United States Constitution and Article I Section 2 of the Florida

245Constitution. Intervenor, Florida Teaching Profession/National Education

251Association (FTP-NEA), joined in the Petition.

257FEA/United presented the testimony of Sue H. Schler, M.D., Harvey L.

268Sterns, Ph.D., and Marc G. Gertz, Ph.D. Petitioner's Exhibits 1, 2, 3A, 3B, 4-

2828, and 10 (a late filed exhibit) are admitted in evidence.

293FTP-NEA presented the testimony of Mark Ross Trammell and had FTP Exhibit 1

306admitted in evidence.

309Respondent, Department of Education (the Department) presented the

317testimony of Larry McEntire, Patricia F. Waller, Ph.D., and Julian A. Waller,

329M.D. Respondent's Exhibits A-D, G, H, IA, IB, and J are admitted in evidence.

343Post hearing, FTP-NEA filed a Request for Official Recognition which was

354opposed by the Department. The Request for Official Recognition was denied by

366Order dated November 22 1988.

371The transcript of the proceedings was filed on October 26, 1988. The

383parties timely filed their proposed findings of fact and conclusions of law on

396November 16 and 17, 1988. All proposed findings of fact and conclusions of law

410have been considered. Specific ruling on each proposed finding of fact is made

423in the Appendix attached hereto and made a part of this Final Order.


439A. History of Rule 6A-0141

4441. Prior to the promulgation of Rule 6A-3.0141, effective August 1, 1986,

456the Department did not have an established mandatory retirement age for public

468school bus drivers. It is not known how many drivers remained employed after

481reaching age 70.

4842. The mandatory retirement age of 70 originated from the concern

495expressed by transportation personnel in several local school districts about

505the great variance in the quality of physical examinations given to screen

517drivers for safety. The old rule allowed school districts to designate any

529licensed physician to administer the physical, and, in many cases, drivers were

541going to family physicians who were hesitant to fail them. The mandatory

553retirement age of 70 was adopted to address this concern, however, the old rule

567provision allowing local school districts to designate any licensed physician to

578conduct physical exams went unchanged.

5833. Larry McEntire, Administrator of the Department's School Transportation

592Management Section, worked to formulate the new rule with the five or six

605members of the standing rules committee of the Florida Association for Pupil

617Transportation (FAPT), which is comprised of personnel from the local school

628districts. The rule change instituted comprehensive classroom and on-the-road

637driver training requirements. The anew age restriction was not controversial;

647in fact the official published justification for the rule mentioned only the new

660training requirements, not the new mandatory retirement age.

6684. The particular age of 70 was arrived at through information provided by

681other states, ten of which had a mandatory retirement age of 70, consistent with

695the age-70 limitation on coverage under the federal ADEA at the time. No

708Florida school bus accident data, which was then viewed as unreliable, was used

721in choosing 70 as the age for mandatory retirement. No Florida statute

733suggested that age in general, or age 70 in particular, be used as a criterion

748in establishing qualifications for Florida school bus drivers.

7565. With regard to training and increased frequency of physical

766examinations at age 65 and over, the rule is patterned after the safety

779standards of the National Highway Traffic Safety Administration (NHTSA).

788However, the mandatory retirement age of 70 is in direct conflict with the NHTSA

802standards in effect then and now, which recommend no mandatory retirement age.

8146. The Department received a survey of state directors of pupil

825transportation on September 3, 1985, which was issued August 29, 1985, by the

838National School Transportation Association, indicating that at least 30 states

848had no age limit at that time for employment as a school bus driver.

8627. Although Mr. McEntire had previously seen the 1969 study by Promisel in

875his master's program in transportation and safety at Florida State University,

886neither that study nor any other study or data analysis was presented to or

900considered by the FAPT rules committee or others in the Department. Mr.

912McEntire is not aware of any study, data, or analysis considered during

924rulemaking which contained a recommendation that age 70 be adopted as a

936mandatory retirement age for school bus drivers.

9438. Mr. McEntire is unaware of whether the School Health Advisory Committee

955of the Florida Medical Association (FMA), which has a longstanding relationship

966with the Department, has ever recommended adoption of a mandatory retirement age

978of 70 as a means of ensuring that school bus drivers have the necessary

992qualifications to drive safely.

9969. Mr. McEntire and the FAPT rules committee did see a two-page document

1009from Iowa entitled "In re Sievert Van Dyke" which reported, among other things,

1022that "school bus drivers under 30 years and over 65 have a disproportionately

1035large number of accidents," that "30, 40, 50 percent of the variability can be

1049predicted on the basis of age," and that "sudden incapacity due to medical

1062defects becomes significantly more frequent in any group reaching age 60."

107310. In Rule 6A-3.0141 several statutes are cited as specific authority for

1085the rule and certain other statutes are cited as the specific laws implemented.

1098None of the provisions of law mentioned in the rule requires a mandatory 70 year

1113retirement age for public school bus drivers.

112011. The Student Transportation Coordinator for the Florida Highway Patrol,

1130which has regulatory jurisdiction over approximately 4,000 private school bus

1141drivers in Florida, was aware when the Department of Education instituted a

1153mandatory retirement age of 70. The jurisdiction and mission of the Florida

1165Highway Patrol in this regard directly parallels the mission of the Department

1177of Education concerning public school bus drivers.

118412. While the Florida Highway Patrol requires drivers age 65 and over to

1197have a physical examination semiannually rather than annually, as does the

1208Department of Education, there is no age limitation for driver certification,

1219there has never been one, and no change is planned in this policy.

1232B. Age and Accident Risk

123713. Patricia J. Waller, Ph.D., is the Associate Director for Driver

1248Studies at the University of North Carolina, Highway Safety Research Center,

1259Director of the University of North Carolina Injury Prevention Research Center,

1270and research professor at the University of North Carolina Center for Policy and

1283Health. She is an expert in the area of driver licensing and crash safety.

129714. Dr. Patricia Waller has studied the relationship between age and

1308accident rate. The results of Dr. Waller's research as it relates to age and

1322crash risk are that when number of miles driven is considered, there is an

1336increase in crash risk.

134015. Dr. Patricia Waller was commissioned by the National Academy of

1351Sciences to write a paper, "Renewal Licensure of the Elderly Driver," to be

1364included in a comprehensive study that was done on transportation in an aging

1377society. The publication in which Dr. Waller's paper appears officially came

1388out in October 11, 1988.

139316. Dr. Patricia Waller's paper, "Renewal Licensure of the Elderly

1403Driver", was done after a review of all the literature that was available on the

1418topic of licensure and re-licensure of older drivers. The literature available

1429included studies related to age and accident rate.

143717. Studies have shown that drivers over 65 years of age as a group behave

1452very responsibly in driving situations. Older drivers tend to restrict their

1463own driving to the best time and locations. For example, because of marked

1476vision changes that occur with increasing age, older drivers reduce their

1487nighttime driving; also, older drivers also tend to reduce their driving in

1499cases of inclement weather or during heavy traffic times.

150818. Despite the fact that older drivers restrict their own driving so that

1521it is less demanding, there is still an increase in crash risk with increasing


153619. The crash rate increases for people in their middle to late fifties,

1549particularly when the number of miles driven in considered. However, the crash

1561risk increases even more for individuals in their early to late sixties. With

1574respect to drivers in their sixties and seventies, age is associated with an

1587increasingly accelerated risk of crash. There is also an increase in crash risk

1600per mile with increasing age.

160520. It is Dr. P. Waller's opinion that the Department should set a

1618mandatory retirement age for school bus drivers because the crash data on

1630licensed drivers indicates increasing involvement after age 65.

163821. It is also Dr. P. Waller's opinion that it is in everybody's best

1652interest that older people as a group be allowed to meet personal transportation

1665needs by retaining their driver's license for as long as possible. She feels

1678there are tradeoffs that allow us to say we are willing to accept the highway

1693safety risk in order to enable this person to continue to function


170622. Dr. P. Waller does not believe that the state of the art permits

1720adequate testing to determine the ability to safely drive; however, she is not a

1734medical doctor fully versed in medical testing.

174123. For her proposition that older school bus drivers should have the same

1754crash risk as older drivers generally, Dr. P. Waller relied on the Promisel

1767data. The Promisel data, set forth in a 1969 report from Dunlap and Associates

1781on school bus safety and operator age in relation to school bus accidents, shows

1795that the number of crashes increases very dramatically with age, particularly

1806when the number of miles driven is considered.

181424. The Promisel study found no correlation between age and accident

1825severity, recommended against the establishment of school bus driver age limits,

1836specifically disclaimed any causal relationship between age and accidents, and

1846made no analysis of accident risk associated with age 65 or over.

185825. The skewed age population in the Promisel study and the "generational

1870cohort effect" (simply stated, the older a study of drivers, the less validity

1883it may have for current drivers) render any accident risk projections from that

1896study to today's 70-and-over Florida school bus drivers unreliable.

190526. Finally, it is Dr. P. Waller's opinion that age 70 is an arbitrary

1919number and that any set age is arbitrary, however, she is aware of no alterative

1934to using age as the cutoff standard in order to maximize safety.

194627. Dr. Julian Waller is a medical doctor and also has a Master of Public

1961Health Degree in Epidemiology. For the past 20 years, he has been employed at

1975the University of Vermont College of Medicine. Since 1978, Dr. J. Waller has

1988been a professor of medicine in the geriatric unit. Dr. J. Waller is an expert

2003in the areas of human physiology as it relates to driving and medical impairment

2017to driving; also, Dr. J. Waller is an expert in the area of statistics. Dr. J.

2033Waller has not examined a patient since 1961. He is not certified in the sub-

2048specialty of geriatric medicine and he is not familiar with the term

2060heteroschistosity. He has not personally studied bus drivers.

206828. According to Dr. J. Waller, there are four basic driving tasks, all of

2082which involve some type of commercial driving, that put excessive stress on

2094drivers. The specific categories are: driving a bus, driving a large truck,

2106driving an ambulance, and driving a police or fire vehicle.

211629. In order to drive a vehicle of any type, four types of capabilities

2130are needed: (1) the person must be alert; (2) the person must be able to

2145identify things in the environment that potentially represent a threat; (3) the

2157person must be able to make timely and appropriate decisions; and (4) the person

2171must be capable of carrying out the decision in a timely and appropriate manner.

218530. Normal changes occur as an individual ages that may affect his ability

2198to perform the tasks required in a driving situation.

220731. Vision normally deteriorates with increasing age. There may be a

2218narrowing of visual fields, a decrease in ability to adapt to dark situations,

2231and problems associated with glare.

223632. An area of concern that may affect older individuals is contrast

2248sensitivity. An individual with problems in this area may have absolutely

2259normal static visual acuity. That is, he can read a typical Snellan chart very

2273easily, but cannot read signs or other things in the environmental which are not

2287perfect contrast of black and white. A person affected by contrast sensitivity

2299may not be aware of many things in their environment, such as traffic signs and

2314street signs unless they are black and white.

232233. Complex reaction time is an important factor to consider for a person

2335in a driving situation who is required to make decisions. Older people often do

2349not do well in complex situations where reaction time is critical.

236034. A problem among older individuals is the beginning of alteration of

2372consciousness for very brief periods of which they are not totally aware.

238435. A physical examination or a mental examination evaluates the

2394performance of the individual at that particular time only. An individual's

2405performance may vary from day to day or moment to moment.

241636. During the early stages, Alzheimer's disease may be difficult to

2427identify. However, it is during this time that individuals are most likely to

2440be driving. The symptoms which the disease manifests, though not apparent

2451during a physical examination, may affect an individual's driving.

246037. Everyone has a variability in their performance. However, because an

2471older person's spare capacity has been eroded, they have less spare capacity to

2484respond to the demands of driving situations. As a result, what may be even a

2499relatively normal variation may put the older person below the minimum that is

2512required to deal with increased demand required to meet emergencies and more

2524demanding driving situations.

252738. Further, according to Dr. J. Waller, the physiological changes that

2538affect a person's vision, stamina, and ability to deal with time-bound decision

2550making and response time so as to effect crash rate begins at about age 55. By

2566age 65, the increased crash risk of all drivers is significant enough to cause

2580concern about people this age performing a special driving task such as driving

2593a school bus.

259639. Dr. J. Waller believes that health-related criteria used in a physical

2608examination lack the precise, predictable cutoff points to distinguish between

2618those older drivers who should be permitted to drive and those who should not be

2633permitted to drive.

263640. In areas where special licensing procedures are used to license older

2648drivers, there is still the same increased crash risk for older drivers.

266041. It is Dr. J. Waller's opinion that as people grow older they have more

2675crashes per unit of miles driven and turn out to be responsible for those

2689crashes more frequently.

269242. It is Dr. J. Waller's opinion that it is reasonable for the Department

2706to set an age limit for school bus drivers and that such an age should not be

2723much past the age of about 65. He bases this opinion on his experience in

2738working with departments of motor vehicles through the years.

274743. It is also Dr. J. Waller's opinion that the problem of physical

2760impairment and driving and crash risk is too inexact to permit appropriate

2772identifying criteria for those drivers who should not be permitted to drive.

2784Dr. J. Waller served on a committee of the American Medical Association that

2797attempted to put together an appropriate set of identifying criteria and the

2809doctors were unable to agree. According to Dr. Waller, this lack of agreement

2822reflects basically a lack of progress in the predictive capabilities of physical

2834examination that has existed since 1927.

284044. Dr. J. Waller feels that the Folstein mini-mental examination cannot

2851identify early Alzheimer's disease. It is Dr. J. Waller's further opinion that

2863physical examinations do not reveal subtle degradation and reduced capacity in


287545. Dr. J. Waller believes that subtle degradation changes cannot be

2886measured, but have individual components which may be testable under certain

2897circumstances. However, the way they all relate to each other has never been

2910tested. It is his opinion that the way we know that they exist, since they

2925cannot be tested, is because we see what is the end result.

293746. Dr. J. Waller presented a bar graph, marked as Respondent's Exhibit K,

2950which he relied on for his opinion that the relationship between age and

2963accident risk is approaching an exponential relationship. That graph and the

2974opinion based on it are unreliable. The graph is not statistically accurate, is

2987visually deceptive as drawn, and is an unsubstantiated data analysis.

299747. Marc G. Gertz, Ph.D., is a professor at Florida State University and

3010president of Research Network, an independent data analysis, survey, research

3020methodology and political polling firm. As part of his duties at F.S.U., Dr.

3033Gertz teaches many of the graduate courses in research methodology and

3044statistics as well as having been chairman of and serving on the Ph.D. Methods

3058Comprehensive Examination Committee for the previous eleven years.

306648. Dr. Gertz was employed by FEA/United to conduct an analysis of school

3079bus drivers and accident rates in the State of Florida. In collecting data for

3093this project, Dr. Gertz was not able to find any previous study ever done in

3108Florida on school bus drivers and accident rates.

311649. This project entailed the collection of three sets of data. One set

3129of data was obtained from the Department of Highway Safety and Motor Vehicles

3142(DMV). The second set of data was obtained from the Department of Education

3155(DOE) and the third set of data was a complete enumeration (as opposed to a

3170random sample) obtained from individual counties, specifically Dade, Pinellas,

3179Okaloosa and Hendry.

318250. Dr. Gertz performed a number of statistical analyses on the data

3194collected and compiled it into a report. Dr. Gertz pointed out that this is an

3209original collection of data as opposed to a summary of data from the agencies in

3224question that have control of the data. This data is known as primary data

3238which is data you collect yourself as opposed to secondary data, which is

3251someone else's data used to do your analysis. The problem with secondary data,

3264according to Dr. Gertz, is you don't know what went into their choice of

3278variables, their choice of case, how they operationalized, how they defined the

3290terms or how they manipulated the data.

329751. An example of one piece of primary or "raw" data that was collected by

3312Dr. Gertz for this study is the individual accident reports on file with the


332752. The DMV data was compared for years 1984 and 1985 for each of the

3342different variables, for example, the number of injuries or the number of

3354fatalities was compared with age to obtain both simple correlations and age as a

3368curvilinear function.

337053. Based on his research, Dr. Gertz found from the DMV data that age had

3385no statistically significant correlation with accidents of school bus drivers in

3396Florida. Dr. Gertz explained the negative numbers of page 1 of his report as

3410negative correlations which indicate that younger drivers are more likely to

3421have accidents, although he was not comfortable saying that the correlation was

3433statistically significant.

343554. Dr. Gertz pointed out that in his examination of the DMV data, what is

3450called an accident may not be what all of us would call an accident. For

3465example, if you knock over a tree limb or if the bus mirror is damaged, this

3481could result in an accident report being filed with the DMV. In the bottom half

3496of page 1 of his report, age was squared to give more weight to the younger and

3513older people to see if age was a curvilinear function of these variables, but

3527this analysis did not change the statistical results.

353555. Dr. Gertz performed more sophisticated analyses on the data sets he

3547collected such as regression analysis and discrimination function analysis, but

3557could still not explain the variation in accidents with any of the variables

3570tested to correlate age with any of those variables.

357956. The second set of data was obtained from the DOE for the years 1986

3594and 1987. The results of Dr. Gertz's analyses are found on page 2 of his

3609report. This data revealed three significant relationships, although in Dr.

3619Gertz's opinion the significance was at a very, very low level. The statistical

3632significance found by Dr. Gertz is .05 which means that 95 times out of 100

3647times it would not be happening at random. These three significant relationship

3659are (a) in 1986 younger drivers were more likely to have had prior accidents;

3673(b) in 1987 the younger drivers were most statistically likely to have been

3686charged in the accident; and (c) in 1986 bus drivers who did have in-service

3700training were less likely to have had accidents. For (c) the statistical

3712significance is .01.

371557. On page 3 of his report, age was cited as a percentage for the years

37311984-1987 using both the DMV data and the DOE data. Dr. Gertz explained this

3745data in terms of the "n" sizes. The "n" size means the sample size. The rule

3761of thumb, according to Dr. Gertz, is that you don't analyze columns that have

3775less than 25 cases in the sample. In the data provided, however, some sample

3789sizes were smaller than 25 which skews the percentage. The closest comparison

3801in this data is in the 1984 Department of Motor Vehicle Data in which a sample

3817size of 18-24 year olds contained 24 cases. The analysis revealed that for all

3831accidents, the percentage where the driver was not charged is 72 percent for 18-

384524 year olds and 87 percent in the 65 and older group.

385758. Petitioner's Exhibit 1, pages 4 and 5 (Gertz's report) contains the

3869data from the third data set. This data was collected directly from the

3882counties and contains a complete enumeration and includes all school bus

3893drivers, those who did not have accidents as well as those who did have


390859. Based on all the data and his analyses, it was Dr. Gertz's opinion

3922that age did not explain why accidents occurred among school bus drivers in the

3936State of Florida. There is no statistically significant correlation between

3946increased age of public school bus drivers and increased accident risk. In

3958fact, the only slight correlation is between younger drivers and increased

3969accident risk. His conclusion is that, based on the current Florida data, age

3982is no factor in accident risk for public school bus drivers. His opinions are

3996accepted as most creditable because they are based on current Florida data

4008regarding school bus drivers.

4012C. Individual Medical Testing

401660. Dr. Sue H. Schler is a medical doctor and holds a Master's degree in

4031public health and biostatistics and epidemiology.

403761. Dr. Schler is an expert in the field of geriatric medicine.

404962. Dr. Schler passed the first subspeciality certification examination in

4059geriatric medicine ever offered, making geriatric medicine officially a

4068subspeciality of internal medicine as of 1988. Dr. Schler teaches medical

4079students at the University of South Florida College of Medicine.

408963. Dr. Schler believes that the average physician in Florida could easily

4101be trained to conduct a physical examination (including a neurological exam) on

4113a school bus driver that would take about half an hour to perform which would

4128screen out the safe from the unsafe driver of any age.

413964. Dr. Schler explained the principle of heteroschistosity. The

4148principle of heteroschistosity means that there is an increasing variability

4158between individuals of increasing age as for as their physical health and their

4171functional capacity. In light of this principle, medical examinations are

4181increasingly likely to detect medical impairments of both a pathological and a

4193normative nature as individuals increase in age.

420065. In Dr. Schler's opinion, functional assessment is the most appropriate

4211method of testing individuals to determine physical and mental capabilities.

4221Functional assessment is one of the big trends in geriatric medicine and in the

4235past few years has been proven to have predictive value for morbidity and


424966. Dr. Schler examined ESE Form No. 479, which is the application for a

4263license to drive a school bus, and found it to be grossly inadequate to safely

4278screen a driver of any age.

428467. Florida's physical examination for school bus drivers could be

4294substantially improved by assuring the quality and competence of the physician

4305and his familiarity with the particular procedures used, and by adding more

"4317hands-on" procedures. The current examination form requires only that "vital

4327signs" be taken and a basic "20/20" vision test be performed, and then asks the

4342physician to answer 12 questions "yes" or "no" with a "brief explanation" for

4355any "no" answer. The physician's certification was recently amended to include

4366the limiting language "on that date" regarding the school bus driver's


437868. Dr. Schler believes Florida's screening procedure could be made

4388adequate for school bus drivers if certain additional tests and procedures were

4400added to the current form. Dr. Schler specifically mentioned a better medical

4412history, a better physical examination, including a complete neurological exam,

4422and a mental status examination such as the Folstein Mini Mental Status Test,

4435and additional testing of vision and hearing, including measuring static and

4446dynamic visual acuity, night vision, response to glare, color vision, visual

4457fields and depth perception. She also believes that a more extensive history of

4470the use of medications and alcohol should be included.

447969. According to Dr. Schler, the more comprehensive testing would not be

4491difficult and would not require expensive equipment. The additional equipment

4501required for more precise vision testing could be found at most optometrist's

4513offices in addition to the equipment normally found in a doctor's office.

4525Further, these tests can be effectively and inexpensively accomplished through

4535cooperative arrangements with established vision-related companies like Pearle

4543Vision Center.

454570. Dr. Schler makes the clear distinction between the abilities of a

4557healthy individual as opposed to a sick person of any age. An example she gave

4572is that cardiac sudden death is estimated to occur in thirty percent of all

4586people who have heart disease. Forty-year old men or women who have heart

4599attacks have a thirty percent rate of sudden death, the same as with an eighty

4614year old man or woman. Chronic heart disease can be easily diagnosed with a

4628physical examination, according to Dr. Schler.

463471. Dr. Schler believes that vascular disease could be screened to

4645eliminate the risk of strokes. Dr. Schler also states that a lot of vascular

4659disease is asymptomatic for the first twenty to thirty years but can be

4672identified with testing.

467572. In Dr. Schler's opinion the standard confidence rate, with which you

4687predict accuracy in the kinds of physical examinations which she described, is

4699approximately ninety-five percent, i.e., a person's capabilities can be

4708predicted with ninety-five percent accuracy from the examinations given by Dr.

4719Schler and her colleagues.

472373. In Dr. Schler's practice she finds that she screens out a person as

4737unsafe to drive prior to the DMV doing so through their driver license retesting


475274. Dr. Schler stated that the application for a license to drive a school

4766bus, although she feels it is inadequate to test school bus drivers, is still

4780much more comprehensive than the driver licensing and retesting given for a

4792regular drivers license.

479575. In Dr. Schler's opinion, the written statements by Dr. Julian Waller,

4807M.D., stating that physical changes take place in people that are unmeasurable

4819was the state of medicine ten or twenty years ago. Currently, in Dr. Schler's

4833opinion, medical doctors are very good at screening out even subtle changes of

4846illness and aging especially as related to driving ability.

485576. Dr. Schler clearly believes that in healthy older drivers, who have

4867the benefit of experience in driving a school bus, experience has been proven to

4881be a major benefit in terms of safety.

488977. According to Dr. Schler, age should only be used as an added safety

4903factor if there were no other way of safely and effectively testing school bus

4917drivers. In her opinion, however, the State of Florida can today efficiently,

4929cheaply and accurately test these drivers annually to determine which drivers

4940are safe and which drivers are not.

494778. Dr. Schler's testimony and opinions are taken as creditable and are

4959accepted instead of the opinions of Dr. J. Waller. Dr. J. Waller's opinions and

4973information are out of date and out of step with the current state of the art in


4991D. Individual Performance Testing, Training and


499879. Harvey Leonard Sterns, Ph.D., currently holds three titles: 1)

5008research professor of psychology at the University of Akron, Ohio, 2) Director,

5020Institute for Life-Span Development and the Gerontology Fellow at the University

5031of Akron, and 3) research professor of gerontology at Northeastern Ohio

5042University College of Medicine. Dr. Sterns is an expert in the field of

5055industrial gerontology.

505780. Dr. Sterns has conducted research on driving as it relates to aging.

5070The research conducted was keyed to the development of a diagnostic battery of

5083tests to determine areas in which older drivers may have difficulty and to

5096assist them with the training program so that they may perform at higher levels.

5110This research also included an individual training approach which was modified

5121in subsequent years in an attempt to attain maximum efficiency.

513181. As a foundation for his research, Dr. Sterns identified three issues

5143of observable approaches to the driving analysis which are called intrinsic

5154predictors. These are 1) perceptual style, i.e., how people extract relevant

5165and irrelevant information from the visual array; 2) selective attention, i.e.,

5176a measure of central processing ability that is highly predictive of incident

5188involvement; and 3) perceptual motor reaction, i.e., dealing with simple and

5199complex choices in complex reactions.

520482. Dr. Sterns also researched the actual driving of a school bus in

5217Alabama. In this research he examined the job of school bus driver from a task

5232analysis perspective and observed first hand what was actually involved in

5243driving the school bus.

524783. Based on this experience Dr. Sterns believes that driving a school bus

5260on a specified route is different than normal everyday driving because, for

5272example, the school bus driver is clearly aware of problem situations coming up

5285such as demanding intersections or curves or other areas of potential danger.

529784. Dr. Sterns points out that school bus accidents are reported any time

5310anything happens to the bus, including a bus getting stuck in the mud,

5323scratched, or backed into a pole or into another bus. This is described in the

5338literature as an "accident or a crash." The majority of accidents that we know

5352about are property damage as opposed to accidents involving injury or


536485. Dr. Sterns stated that Dr. Julian Waller in his book Injury Events

5377states that school bus safety is not a major safety problem because out of

5391approximately twenty million children who are transported by school busy every

5402year there are twenty fatalities.

540786. School bus transportation may well be the safest form of

5418transportation there is.

542187. Dr. Sterns cites numerous authorities and studies done both in the

5433United States and Europe which support his opinion that experience is a critical

5446factor in the ability to safely drive a school bus.

545688. Competency and skills involved in driving a school bus could be

5468greatly enhanced by additional supervised on-the-road training experience

5476together with training evaluations as opposed to using the age as criterion.

548889. The job of driving a school bus involves much more than just driving.

5502Dr. Sterns cites the Iowa 1986 data which contained eighteen fatalities and of

5515those, three fatalities were actually on the bus. Therefore he believes that a

5528check ride with passengers actually on the bus is an important part of the

5542observation of the performance level of the school bus driver.

555290. According to Dr. Sterns, the addition of the intrinsic performance

5563evaluators which have relative predictive validity, such as selective attention,

5573perceptual style and motor reaction time, together with enhanced training and on

5585board evaluation of school bus drivers, is far superior to determining who a

5598good employee performer might be as opposed to the use of any arbitrary

5611chronological age.

561391. It is Dr. Sterns' opinion that if it were necessary to be very

5627conservative in the setting of standards for school bus drivers, one commonly

5639used technique in industrial psychology is that of using the median of the young

5653group. That is, taking the younger group of employees and determining their

5665median standard of performance and using that median as the cut off score for

5679any older person with the result that any older person performing below that

5692median cutoff score would not be allowed to drive a school bus.

570492. In metro transit authorities (public transportation), a method used to

5715judge performance is to have a "checker" ride the bus as a passenger or follow

5730in a car to see whether or not the bus driver is performing appropriately. This

5745method would be of practical use in training school bus drivers as well.

575893. Past driving record is predictive of future accident risk.

576894. In a study of commercial drivers, performance training was

5778demonstrated, with statistical significance, to reduce accident risk by

5787approximately 16 percent.

579095. Performance evaluation can appropriately exclude young drivers who

5799have functional problems related to drug or alcohol use or neurological


581196. Performance training has been developed and demonstrated to be

5821effective at improving the performance level of both older and younger adult


583497. Performance evaluation through "on board" check rides, a "follow car"

5845procedure, or closely "monitoring" drivers can reduce accident risk, especially

5855when such evaluation is based upon an accurate task analysis.

586598. The 1969 Promisel Study as discussed by Dr. Sterns also relates the

5878benefit of experience even for drivers who began to drive a school bus in their

5893sixties, because even these drivers show an improvement in their driving ability

5905with training and experience. The study also states on page 90 that there is no

5920evidence to show that the severity of an accident is related to driver age and

5935further that more than half or 50-60 percent of the difference that occurs in

5949accident rate can be predicted only by factors other than age.

596099. Performance evaluation over a period of several days, as occurs in

5972Florida's public school bus driver licensing process, is more reliable in

5983determining driver capability than the single-incidence licensing which is

5992typical of the private, noncommercial licensing process.


6002100. The Division of Administrative Hearings has jurisdiction of the

6012parties to and the subject matter of this proceeding. Section 120.56(1),

6023Florida Statutes.

6025101. At issue is the validity of Rule 6A-3.0141(1)(a) and (5)(a), Florida

6037Administrative Code, which states in pertinent part:

6044(1) At the time of initial employment the

6052school board shall assure that the driver of a

6061school bus meets the following requirements:

6067(a) Is under seventy (70) years of

6074age . . . .

6079* * *

6082(5) At the time of reemployment or

6089reappointment, the school district shall

6094assure that the driver of a school bus meets

6103the following requirements:

6106(a) All the requirements of Rule 6A-

61133.0141(1) and (3)(a), FAC.

6117102. The rule cites Sections 112.044(3), 120.55(1)(a), 234.02, 234.091,

6126and 234.101, Florida Statutes, as the laws implemented by it. These sections

6138state in relevant part:



6146(a) Except as provided in paragraph (f)

6153it is unlawful for an employer to:

61601. Fail or refuse to hire, discharge or

6168mandatorily retire, or otherwise discriminate

6173against any individual . . . because of age.

6182* * *

6185(f) It is not unlawful for an

6192employer . . . to:

61971. Take any action otherwise prohibited

6203under paragraphs (a), (b), (c), or (e), based

6211on a bona fide occupational qualification

6217reasonably necessary to the normal operation

6223of the particular business.

6227234.02: Maximum regard for safety and

6233adequate protection of health shall be

6239primary requirements which shall be observed

6245by school boards in routing buses, appointing

6252drivers, and providing and operating

6257equipment, in accordance with all

6262requirements of law and regulations of the

6269state board.

6271* * *

6274234.091: Each school bus driver shall be

6281of good moral character, of good vision and

6289hearing, able-bodied, free from communicable

6294diseases, mentally alert, and sufficiently

6299strong physically to handle the bus with ease

6307and to make emergency repairs, and he shall

6315possess such other qualifications as are

6321prescribed by the state board, and he shall

6329hold a valid chauffeur's license issued by

6336the Department of Highway Safety and Motor


6344234.101: (1) The State Board of

6350Education shall adopt requirements which

6355school bus drivers must meet prior to

6362employment by district school boards.

6367* * *

6370103. This action is brought pursuant to Section 120.56(1):

6379(1) Any person substantially affected by

6385a rule may seek an administrative

6391determination of the invalidity of the rule

6398on the ground that the rule is an invalid

6407exercise of delegated legislative authority.

6412104. The standard to be applied is found in Section 120.52(8):

6423(8) "Invalid exercise of delegated

6428legislative authority" means action which

6433goes beyond the powers, functions, and

6439duties delegated by the legislature. A

6445proposed or existing rule is an invalid

6452exercise of delegated legislative authority

6457if anyone or more of the following apply:

6465* * *

6468(c) The rule enlarges, modifies, or

6474contravenes the specific provisions of law

6480implemented, citation to which is required by

6487s. 120.54(7);

6489(d) The rule is vague, fails to establish

6497adequate standards for agency decisions, or

6503vests unbridled discretion in the agency; or

6510(e) The rule is arbitrary or capricious.

6517Of further note in relation to the issues here are two statutes which codify the

6532state's position on age discrimination. Section 112.044(1) states the

6541legislative purpose behind Section 112.044(3), one of the sections implemented

6551by the challenged rule.

6555Section 112.044(1) LEGISLATIVE INTENT;

6559PURPOSE.--The Legislature finds and

6563declares that in the face of rising

6570productivity and affluence, older workers

6575find themselves disadvantaged, both in

6580their efforts to retain employment and in

6587their efforts to regain employment when

6593displaced from jobs. The setting of

6599arbitrary age limits, irrespective of

6604capability for job performance, has become

6610a common practice, and certain otherwise

6616desirable practices may work to the

6622disadvantage of older persons.

6626In comparison to the incidence of

6632unemployment among younger workers, the

6637incidence of unemployment, especially long-

6642term unemployment with resultant

6646deterioration of skill, morale, and employer

6652acceptability, is high among older workers,

6658whose numbers are great and growing and whose

6666employment problems are grave. In industries

6672affecting commerce, the existence of

6677arbitrary discrimination in employment

6681because of age burdens commerce and the free

6689flow of goods. It is the purpose of this act

6699to promote employment of older persons based

6706on ability rather than age and to prohibit

6714arbitrary age discrimination in employment.

6719[Emphasis Supplied]

6721Finally, Section 760.10(1)(a) and (8)(a) of the Human Rights Act of 1977 outlaws

6734age discrimination with one pertinent exception:

6740(1) It is an unlawful employment practice

6747for an employer:

6750(a) To discharge or to fail or refuse to

6759hire any individual . . . because of such

6768individual's . . . age . .

6775* * *

6778(8) Notwithstanding any other provision

6783of this section, it is not an unlawful

6791employment practice under ss. 760.01-760.10

6796for an employer . . . to:

6803(a) Take or fail to take any action on

6812the basis of . . . age . . . in those

6824certain circumstances in which . . .

6831age . . . is a bona fide occupational

6840qualification reasonably necessary for the

6845performance of the particular employment to

6851which such action or inaction is related.

6858105. The Florida Supreme Court in Morrow v. Duval County School Board,

6870514 So.2d 1086 (Fla. 1987), invalidated the mandatory retirement of a teacher at

6883age 70. In doing so, the Court found that Section 231.031 (the statute which

6897contained the age 70 limitation) "should be read in pari materia with section

6910760.10 and section 112.044, in a manner that gives effect to the purposes of all

6925three statutory provisions." Morrow at 1088. Further, the Court noted the

6936similarity between Section 112.044, Section 760.10, and the federal Age

6946Discrimination in Employment Act (ADEA), 29 U.S.C. Section 621 et seq., and


6959The policy behind Florida's statute is

6965similar to the policy behind the federal

6972legislation, "to promote employment of

6977older persons based on their ability rather

6984than age" and to "prohibit arbitrary age

6991discrimination in employment." [Citations

6995omitted] As remedial legislation, Florida's

7000act should be liberally construed to promote

7007its intended purpose.

7010106. The question here is whether the six words in the rule (a) enlarge,

7024modify, or contravene the laws implemented; or (b) are arbitrary or capricious.

7036107. Clearly none of the statutes implemented mandate or even mention a

7048mandatory retirement age for school bus drivers. In fact, Section 112.044(3)

7059specifically outlaws such a mandatory retirement age unless it is shown that age

7072is a bona fide occupational qualification (BFOQ). If Sections 112.044, 760.10,

7083and the other statutes implemented are read in pari materia, the inescapable

7095conclusion is that the rule enlarges and contravenes the laws implemented unless

7107the BFOQ exception applies.

7111108. The leading case outlining the test for establishing a BFOQ is

7123Western Air Lines Inc. v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d

7137321 (1985). Criswell utilized and crystallized the standard set forth in Usery

7149v. Tamiami Trail Tours Inc., 531 F.2d 224 (5th Cir. 1976). Summarized, the two

7163pronged test requires

71661. The job qualification must be reasonably

7173necessary to the essence of the business.

7180The greater the safety factor, the more

7187stringent may be the job qualifications

7193designed to ensure safe driving.

71982. The age qualification must be something

7205more than convenient or reasonable; it

7211must be reasonably necessary to the

7217particular business. The employer must

7222be compelled to rely on age as a proxy

7231for the safety-related job qualifications

7236validated in the first inquiry.

7241Id. at 105 S.Ct. 2751. The second prong of the test may be satisfied in two


7258a. The employer can establish a factual

7265basis for believing that all or

7271substantially all persons over the age

7277qualification would be unable to perform

7283safely and efficiently the duties of the

7290job involved; or

7293b. The employer can establish that age is a

7302legitimate proxy for the safety-related

7307job qualifications by proving that it is

7314impossible or highly impractical to deal

7320with older employees on an individualized


7327Id. at 105 S.Ct. 2751-52. Finally, the Court in Criswell specified that one way

7341the employer can meet its burden under the second prong of the test is "to

7356establish that some members of the discriminated-against class possess a trait

7367precluding safe and efficient job performance that cannot be ascertained by

7378means other than knowledge of the applicant's membership in the class." Id. at

7391105 S.Ct. 2752. The Court also recognized that the BFOQ exception "was in fact

7405meant to be an extremely narrow exception to the n i a g a " n o i t i b i h o r p l a r e n e g  s t

7440age discrimination.

7442109. It is concluded from the evidence that an essential job qualification

7454which is reasonably necessary is the physical and mental ability to safely drive

7467a school bus. However, the Department did not carry its burden under the second

7481prong of the test. The Department essentially proved only that data exists

7493which shows a higher accident rate among all drivers over age 65.

7505110. In E.E.O.C. v. State of Mississippi, 837 F.2d 1398 (5th Cir. 1988),

7518and in E.E.O.C. v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir. 1987),

7531it is made clear that before an employer can prove that all or substantially all

7546persons over the age qualification would be unable to meet the standards of safe

7560performance, the employer must develop, implement and enforce minimum standards

7570of health and fitness that would justify the BFOQ. This threshold limits an

7583employer's discretion in establishing a BFOQ defense. "Not only would a finding

7595of minimum standards limit an employer's discretion, but also it. . . would

7608ensure both that a good faith decision on required qualifications was made by a

7622competent authority and that the use of age as a proxy was proper." Id. at P.

76381401. In the Mississippi case, as here, the Court found that such minimum

7651standards were not developed and therefore "there is no essential job

7662qualification in this case that age can stand as a proxy for." Id. at 1402.

7677Under such circumstances, the "BFOQ 'escape clause'" is not available. Id. at


7690111. Further, in the Pennsylvania case, the Court held that "before a

7702characteristic can be a reasonably necessary BFOQ, it must be a trait that the

7716employer at least attempts to require of employees of all ages." Here, the

7729Department has not attempted to require of all school bus drivers that they

7742belong to a class with a low accident rate. It is particularly noted that young

7757drivers have similar accident rates to old drivers, yet a licensed driver could

7770conceivably become a school bus driver in Florida at age 19, after five years of

7785licensed driving including the learner's license issuable at age 14. Yet, the

7797data analysis is clear that such young drivers have similar accident rates as

7810drivers over age 65.

7814112. The only justification given by the Department for its use of age as

7828job qualifications was in the form of statistical proof. In rejecting

"7839statistical evidence indicating that there is a correlation between age and

7850accident frequency," the Court in Maki v. Commissioner of Education, 568 F.

7862Supp. 252 (N.D.N.Y. 1983), summarily affirmed, 742 F.2d 1437 (2d Cir. 1984),


7875Regardless of the efficacy of these

7881statistics, these reports, in and of

7887themselves, are an insufficient showing

"7892because an examination may reveal whether

7898a job applicant possesses any of the

7905passenger-endangering physical liabilities

7908that many older people have. In other

7915words, the correlation [between age and

7921accident frequency] is to physical

7926deficiencies, not to age per se." Usery v.

7934Tamiami Trail Tours, Inc., supra, 531 F.

79412d at 237.

7944Similarly, here the Department has failed to carry its burden of establishing

7956that age per se may be used as a proxy based only on statistical evidence of age

7973and accident rate. This is particularly so where the testimony of all the

7986Department's witnesses specified a rise in age/accident rate at age 65, not 70.

7999Hence no age was shown to be an appropriate proxy for the job qualification.

8013113. The Department also produced testimony by Dr. Julian Waller to

8024support its position that it is impossible or highly impractical to deal with

8037older employees on an individualized basis because there are not adequate

8048physical and mental examinations which could effectively screen for traits that

8059would preclude safe and efficient job performance. However, Dr. Waller's

8069testimony was found to be less credible than the testimony of Dr. Schler wherein

8083Dr. Schler identified the type and scope of examinations which could be

8095practically, easily, and efficiently done to achieve the end of safe job

8107performance by older school bus drivers.

8113114. Taken in its best light, the evidence adduced by the Department

8125failed to meet the BFOQ standards and the BFOQ defense is rejected. The

8138mandatory retirement age of 70 directly contravenes the law implemented, Section

8149112.044, and is an invalid exercise of delegated legislative authority pursuant

8160to section 120.52(8)(c).

8163115. It is also concluded that the mandatory retirement age in the rule is

8177arbitrary and is therefore an invalid exercise of delegated legislative

8187authority under Section 120.52(8)(e). The rule is not reasonably related to the

8199purpose of the enabling legislation and it is not appropriate to the ends

8212specified in the legislative act. Agrico Chemical Co. v. Department of

8223Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). The clearly

8234expressed legislative purpose of Section 112.044 is to prohibit arbitrary age

8245discrimination and the use of arbitrary age limits. "An arbitrary decision is

8257one not supported by facts or logic, or despotic." Id. at 763. The facts set

8272forth in the competent substantial evidence in this case is that the age limit

8286in the rule is arbitrary. In fact, the Department's own witness testified that

8299the use of age 70 was arbitrary because the use of age 65 is better supported by

8316the statistical accident rate data. There is simply no factual evidence to show

8329that age 70, as opposed to 65 or 68 or 71 or 75 is appropriate and is reasonably

8347related to the legislative purpose.


8353Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is

8366ORDERED that Rule 6A-3.0141(1)(a) , Florida Administrative Code, which

8374states "Is under seventy (70) years of age," constitutes an invalid exercise of

8387delegated legislative authority.

8390DONE and ORDERED this 14th day of December, 1988, in Tallahassee, Florida.



8406Hearing Officer

8408Division of Administrative Hearings

8412The Oakland Building

84152009 Apalachee Parkway

8418Tallahassee, Florida 32399-1550

8421(904) 488-9675

8423Filed with the Clerk of the

8429Division of Administrative Hearings

8433this 14th day of December, 1988.


8446The following constitutes my specific rulings pursuant to Section

8455120.59(2), Florida Statutes, on the proposed findings of fact submitted by the

8467parties in this case.

8471Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida

8482Education Association/United

84841. Each of the following proposed findings of fact are adopted

8495in substance as modified in the Final Order. The number in

8506parentheses is the Finding of Fact which so adopts the

8516proposed finding of fact: 1-7(60-66); 8-17(68-77); 18(68);

852319-26(79-86); 27-31(88-92); 38(98); 41-52(47-58); 54(59);

852875(10); 83(13); 88(20); 89(21); 91(22); 95(23); 96-98(27-

853529); 102-106(41-45); and 110 & 111(27)

85412. Proposed findings of fact 32 and 33 are irrelevant.

85513. Proposed findings of fact 34-37, 39, 40, 53, 55, 56, 90,

8563112, and 113 are unnecessary.

85684. Proposed findings of fact 57-74, 76-82, 84-87, 92-94, 99-

8578101, and 107-109 are subordinate to the facts actually found

8588in this Final Order.

85925. Proposed findings of fact 114-116 are rejected as being

8602unsupported by the competent, substantial evidence.

8608Specifically, the exhibits cited were not admitted in


8617Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Florida

8628Teaching Profession/National Education Association

86321. Each of the following proposed findings of fact are adopted

8643in substance as modified in the Final Order. The number in

8654parentheses is the Finding of Fact which so adopts the

8664proposed finding of fact: 1-9(1-9); 10(11); 11(12); 13(64);

867214(72); 15(67); 16 & 17(68); 18(70); 19-23(93-97); 26(99);

868027(86); and 36 & 37(46)

86852. Proposed findings of fact 12, 24, 25, 28-33, and 35 are

8697subordinate to the facts actually found in this Final Order. 3. Proposed

8709finding of fact 34 is unnecessary.

87154. Proposed finding of fact 38 is unsupported by the competent,

8726substantial evidence. Specifically it makes reference to an

8734exhibit not admitted in evidence.

8739Specific Rulings on Proposed Findings of Fact Submitted by Respondent,

8749Department of Education

87521. Each of the following proposed findings of fact are adopted

8763in substance as modified in the Final Order. The number in

8774parentheses is the Finding of Fact which so adopts the

8784proposed finding of fact: 8(3); 11-16(13-18); 18-20(19);

879121(23); 25-32(27-34); 34-39(35-40); 51(60); 53(79); and


87982. Proposed findings of fact 1, 3-7, 10, 22, 23, 33, 43-43 and

881148 are subordinate to the facts actually found in this Final


88233. Proposed findings of fact 2 and 9 are unnecessary.

88334. Proposed findings of fact 17, 44-46, and 56 are irrelevant.

88445. Proposed findings of fact 40, 47, 49, 50, 52, 55, and 57-60

8857are unsupported by the competent, substantial evidence.


8866Lorene C. Powell

8869Assistant General Counsel


8873208 West Pensacola Street

8877Tallahassee, Florida 32301

8880Carl J. Zahner

8883Carolyn S. Holifield

8886Assistant General Counsels

8889Department of Education

8892Knott Building

8894Tallahassee, Florida 32399

8897Vernon T. Grizzard

8900Attorney at Law

8903116 South Monroe Street

8907Tallahassee, Florida 32301

8910Liz Cloud, Chief

8913Bureau of Administrative Code

89171802 The Capitol

8920Tallahassee, Florida 32301

8923Carroll Webb, Executive Director

8927Administrative Procedure Committee

8930120 Holland Building

8933Tallahassee, Florida 32301

8936Honorable Betty Castor

8939Commissioner of Education

8942The Capitol

8944Tallahassee, Florida 32399-0400











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Date: 12/14/1988
Proceedings: DOAH Final Order
Date: 12/14/1988
Proceedings: Final Order (hearing held , 2013). CASE CLOSED.

Case Information

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

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):