92-000550RX Richard Barsallo, Maria Barsallo, Susan Beatty, Karen C. Blizzard, Et Al. vs. Palm Beach County School Board
 Status: Closed
DOAH Final Order on Thursday, May 7, 1992.

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Summary: Rule which sets criteria for student busing and school board's application neither invalid nor arbitrary/capricious and consistent with enabling statute





14Petitioner, )


17vs. ) CASE NO. 92-0550RX





34Respondent. )



39A hearing was held in this case in Boca Raton, Florida, on February 28,

531992, before Arnold H. Pollock, a Hearing Officer with the Division of

65Administrative Hearings.


68For the Petitioner: Mark L. Bregar, Esquire

75Sachs & Sax, P.A.

79Post Office Box 810037

83Boca Raton, Florida 33431

87For the Respondent: Bob Rosillo, Esquire

93Palm Beach County School Board

983970 RCA Boulevard, Suite 7010

103Palm Beach Gardens, Florida 33410


112The issue for consideration in this hearing is whether Respondent's Rule

1236A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a

135properly promulgated rule.


140By undated Petition, the Petitioners, parents of children attending public

150school provided by the Respondent, Palm Beach County School Board, challenge the

162Respondent's Rule 6A-3.001 as an invalid rule. Petitioners' claim that the

173Respondent's interpretation of that rule to deny their children bus

183transportation to and from the school to which they have been assigned has

196invalidly deprived them of a service to which they are entitled under Florida

209law and endangers their health, safety, and well-being in violation of the

221mandate of Section 234.02, Florida Statutes. It is also, Petitioners' claim,

232without statutory or other legal basis and is, therefore, invalid.

242The Petition was filed with the Division of Administrative Hearings on

253January 29, 1992. Thereafter, by Notice of Hearing dated February 3, 1992, the

266undersigned set the matter for hearing in Boca Raton on February 28, 1992, at

280which time it was held as scheduled.

287At the hearing, Petitioners presented the testimony of Jacob Wattenberg, a

298traffic engineer and expert in traffic analysis and route determination; Diane

309Gutermuth, one of the Petitioners; and Tandy M. Stoltz, vice president of Stoltz

322Management, the organization which developed and manages the apartment complex

332in question where the Petitioners reside. Petitioners also introduced

341Petitioners' Exhibits 1 through 3. Respondent presented the testimony of

351Sergeant Susan J. Szczepanski, the officer in charge of the school crossing

363division of the Palm Beach County Sheriff's Office; Yevola Falana, Safety

374Coordinator for Employee and Student Programs at the Palm Beach County School

386Board; George E. Baker, Director of Transportation for the Board; and Larry H.

399McEntire, Chief, Bureau of School Bus Services for the State of Florida's

411Department of Education. Respondent also introduced Respondent's Exhibits A

420through D. The parties agreed to the admission of Joint Exhibits 1 through 3.

434A transcript was provided and both parties submitted Proposed Findings of

445Fact which have been ruled upon in the Appendix to this Order.


4601. At all times pertinent to the issues herein, the Respondent, School

472Board of Palm Beach County, (Board), was the agency responsible for providing

484public school bus transportation to eligible students in the public schools of

496Palm Beach County, Florida. The Petitioners were the parents of children

507enrolled in and attending Hammock Pointe Elementary School, a public school in

519Palm Beach County operated by the Respondent.

5262. Prior to January 17, 1992, the Petitioners' children were enrolled in

538and attending Whispering Pines Elementary School, operated by the Board, and,

549because that school was located sufficiently far from the students' homes, were

561receiving public school bus transportation furnished by the Respondent.

5703. After the beginning of the 1991-1992 school year, the Respondent

581advised the Petitioners that in January, 1992, their children would be

592reassigned from Whispering Pines to Hammock Pointe Elementary School located

602somewhat closer to their residences at the Boca Palms apartment complex

613located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the

626new school was to begin on January 21, 1992. The Petitioners were also advised

640that because Boca Palms was located within two miles of Hammock Pointe School,

653based upon the Board's interpretation of the pertinent rules regulating school

664bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided

675with public bus transportation to that school. This interpretation was made by

687the Board's Director of school bus transportation.

6944. Rule 6A-3.001, which implements the provisions of Sections 230.23 and

705234.01, Florida Statutes, requires school boards to provide bus transportation

715to those students whose homes are beyond a reasonable walking distance from the

728assigned public school. The term, "reasonable walking distance", for a student

739who is not handicapped, is defined by the rule as:

749[A]ny distance not more than two (2) miles

757between the home and school or one and one-

766half (1 1/2) miles between the home and the

775assigned bus stop. Such distance shall be

782measured from the closest pedestrian entry

788point of the property where the student

795resides to the closest pedestrian entry point

802of the assigned school building or to the

810assigned bus stop. The District shall

816determine the shortest pedestrian route

821whether or not it is accessible to motor

829vehicle traffic.

8315. Though the rule does not specifically define it, the Board's Director

843of bus transportation interpreted the phrase, "closest pedestrian entry point of

854the property where the student resides" as meaning that point where the public

867right of way ends whether or not that point constitutes a pedestrian entry

880point. Measuring the shortest pedestrian route from the school building to the

892junction of the public street adjacent to the apartment complex and the complex

905entry drive, the Board indicates a distance of 1.9 miles, within the rule

918definition of reasonable walking distance. Mr. Wattenberg, the Petitioners'

927expert, who personally walked the route with a walking wheel, determined the

939distance from the gate to the school to be 10,692 feet. The distance from the

955aforementioned junction, down the complex entry drive to the actual gatehouse,

966is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance

977leaves a balance from the school to the junction of 10,415 feet. This is barely

993under 2 miles, (10,560 feet).

9996. From the gate to the closest residence within the complex is an

1012additional 255 feet, and from the gate to the southwest corner of the complex is

1027an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant

1040on the basis of his interpretation of the term "entry point of the property"

1054which, he feels, is the individual students' homes. All of those would lie well

1068outside the 2 mile cut-off point. His position has some merit in light of the

1083fact that the complex is surrounded by either a man made or vegetative fence

1097which restrict pedestrian entry and exit to through the gate. Were the children

1110to be able to walk directly from their homes to the school, they would have less

1126distance to travel because all homes are currently located in an area to the

1140south of the gate, and the walking route, for the most part, is to the south and

1157east of the complex. However, under the circumstances here, the children have

1169to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and

1186then from 255 to 1,000 feet more from the gate to their homes. Together, this

1202is all in excess of 2 miles, but the Department's interpretation makes the

1215controlling distance less than 2 miles.

12217. Even if the distance is less than 2 miles, however, the Board will

1235provide transportation if it is determined that hazards exist along the route

1247that would endanger the student. Here, the Board has also taken the position

1260that the route to be followed by the students does not present any hazardous

1274conditions within the meaning of Section 234.021, Florida Statutes. This

1284position is supported by the opinion of Sergeant Szczepanski, the Sheriff

1295Department's head of the school crossing division. She is familiar with the

1307route proposed from Boca Palms to the school and drove it at the request of the

1323Board's head of risk management. Her viewing convinced her that there was a

1336hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with

1350that individual was satisfied that the danger has been abated. If she felt it

1364were unsafe she would say so and when she has done so in the past, the Board has

1382uniformly acceded to her determination and provided bus transport. Whenever

1392hazardous conditions are identified, the bussing is provided only so long as

1404those conditions persist, and when the hazard is removed, the bussing is


14178. Ms. Falana, the Board's risk management expert reviewed the route

1428several times while the school was being considered and built and found nothing

1441which, to her, met the statutory criteria. As she saw it, going by the

1455statutory criteria, there was no need even for crossing guards, but there is at

1469least one guard along the projected route and a total of three for the entire

1484school area. Ms. Falana walked the route herself and did not merely drive it.

1498She was specifically looking for hazards to children and found none. She

1510coordinated with Sgt. Szczepanski and determined that there were no complaints

1521registered by any of the parents with the bussing division, with her office, or

1535with Sgt. Szczepanski's office.

15399. Ms. Falana recognizes that along the projected route there is a dogleg

1552with a rise in the side of the street, (without a walkway), where a child might

1568slip down into the roadway. She feels this is not a problem, however, because

1582there are other similar areas in the county and there has never been an accident

1597at one of those sites. Only where children have to cross a major highway or an

1613unusual traffic situation is a crossing guard required.

162110. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's

1631assessments of the hazard situation and contends there are several. One is at

1644the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the

1656view of drivers. The intersection at 8th Street and 57th Avenue is also

1669dangerous but there will be a crossing guard there. From 57th Avenue east the

1683route is on a service road which runs along a canal that has no sidewalk or


170011. Mr. Wattenberg, an adult, required 45 minutes to traverse the route

1712which has 10 cross streets intersecting with it. There will be between 40 and

172645 children who will have to make this walk at least twice a day, five days a

1743week, in all kinds of weather. The evidence is not clearly dispositive of the


175812. According to Mr. Baker, the Board's director of transportation, the

1769decision on whether to provide bus transport is made on the basis of both

1783distance and hazardous conditions. He measured the distance electronically with

1793a measuring device calibrated for accuracy both before and after each use.

1805There is no dispute as to the actual distances involved, only at what point the

1820distance is to be measured. School Board policy requires that the distance be

1833measured according to the terms of the Department of Education rule, (6A-

18453.001(3)), which refers to "... the closest entry point of the property where

1858the student resides." He measured the shortest route from the school to that

1871point where the public sidewalk meet the private property on the abutting

1883thoroughfare and found the distance to be 178 feet short of two miles. On that

1898basis, the transportation was denied.

190313. Mr. Baker also looked at the issue of hazardous conditions and relied

1916on the determination of Ms. Falana who has the authority to determine if there

1930is such a condition. Here, she determined there was no hazard requiring

1942transport within the criteria in the statute.

194914. To be certain of his position, Mr. Baker wrote to the State Department

1963of Education which rendered an opinion that the starting point for measurement

1975is the point of demarcation between the public street and the private property.

1988According to Mr. McBride, the Department of Education's school bus chief, there

2000is no statutory definition of "pedestrian entry point." However, the

2010Department, and the state auditors, always use the property line between

2021private and public property as the line of demarcation. In this case,

2033then, even though the entry gate is 277 feet further in from the property line,

2048the entry to the property, for bussing purposes, is at the property line at the

2063street. To the best of his knowledge, there has been no official determination

2076on this point by court, rule, or statute.

208415. Ms. Gudermuth, one of the Petitioners, indicates that at the present

2096time, since the school change, the management at Boca Palms has been providing

2109bus transport for the 35 or so children who are involved. If the complex did not

2125do so, she would not allow her seven year old child to walk to the school. She

2142could take her daughter to school in the morning, but because she works outside

2156the home, could not come to get her after school without switching to part time

2171work. Many other parents are in the same situation. Car pooling is not a viable

2186option because she, and each other parent who participated, would still need to

2199take time off from work when it was her or his turn to drive.

221316. Boca Palms has indicated that though it is currently providing

2224transportation to its tenants by leased bus, it cannot

2233continue to do so. Because of the cost of $1.00 per mile per student, plus

2248insurance and driver salary, the cost cannot reasonably be passed on to tenants

2261through rent increases because of existing economic conditions. When the issue

2272was raised with several of the parents, they were uniformly opposed to it.


228817. The Division of Administrative Hearings has jurisdiction over the

2298parties and the subject matter of these proceedings. Section 120.57(1), Florida


231018. The School Board of Palm Beach County has made an administrative

2322determination denying school bus transportation to children living in the Boca

2333Palms Racquet Club who attend Hammock Pointe Elementary School on the basis that

2346the distance between the school and the residence is less than the two mile

2360criteria set out in the Board's policy, based on a Department of Education rule,

2374for the provision of bus transportation, and that no hazardous condition

2385has been shown sufficient to create an exception to the rule's and policy's

2398application. The burden is on the Petitioners to demonstrate, by a

2409preponderance of the evidence, that the Board's interpretation and application

2419of it's policy is incorrect.

242419. The law is clear in this state that ordinarily, administrative or

2436legislative determinations or findings of fact are given great weight and should

2448not be lightly tampered with or voided absent a clear showing that such

2461determinations or findings are arbitrary, capricious, oppressive, erroneous, an

2470abuse of agency discretion or an invalid exercise of delegated legislative

2481authority. Charlotte County vs. Fiske, 350 So.2d 578 (Fla. 2 DCA 1977).

2493However, this deference is not absolute, and when an agency's construction or

2505interpretation clearly contradicts the unambiguous language of a rule, that

2515construction or interpretation cannot stand. Woodley v. Department of Health and

2526Rehabilitative Services, 505 So.2d 676 Fla. 1 DCA 1987).

253520. Generally, in Florida, when an agency acts in good faith, its

2547decisions will not be overturned by the courts even though those decisions may

2560be based on facts upon which reasonable men may differ and which may appear to

2575some to be erroneous. Volume Service Div., etc. v. Canteen Corp., 369 So.2d

2588391 (Fla. 2DCA 1979). Further, when rules and the meaning assigned to them by

2602officials charged with their administration have been in effect over an extended

2614period of time, they will usually be given great weight unless shown to be

2628clearly erroneous, State Department of Commerce v. Matthews Corp., 358 So.2d 256

2640(Fla. 1DCA 1978), and an agency's administrative interpretation of its own rules

2652will usually be given great weight by the courts. Franklin Ambulance Service v.

2665Department of Health and Rehabilitative Service, 450 So.2d 580 (Fla. 1 DCA


267821. The provisions of Section 234.01(1), Florida Statutes, require local

2688school boards to provide transportation for each student up through grade 12

2700when, and only when, transportation is necessary and to students whose homes are

2713more than a reasonable walking distance, as defined by rules of the state board,

2727from the nearest school. Children up through grade 6 shall be provided

2739transportation regardless of distance if the walking route would subject them to

2751hazardous conditions.

275322. Section 234.021(3)(a)1, Florida Statutes, defines a hazardous walkway

2762parallel to the road as one:

2768... where there is not an area at least 4 feet

2779wide adjacent to the road, having a surface

2787upon which students may walk without being

2794required to walk on the road surface. ...

280223. In this case, several experienced individuals, both the Board's risk

2813management expert, Ms. Falana, and Sergeant Szczepanski, head of the Sheriff's

2824Department's school crossing guard program, examined the route and concluded it

2835was not hazardous. On the other hand, Mr. Wattenberg, a traffic engineer and an

2849expert in traffic analysis, opined that in certain sections, it was hazardous.

2861The conflicting testimony regarding this point does not clearly dispose of the

2873issue. It cannot be said then, that the Petitioner's have established, by a

2886preponderance of the evidence, that the route to be traveled by the Boca Palms

2900children is sufficiently hazardous to constitute an exception to the two mile

2912rule though potential hazards may exist.

291824. This, then, leaves for resolution the correctness of the Board's

2929determination that the distance between the closest pedestrian access point at

2940Boca Palms and that at Hammock Pointe Elementary School is less than two miles

2954so as to justify denial of Board provided transport.

296325. Rule 6A-3.001(3), F.A.C., a rule of the state Department of Education,

2975as applicable to school bus transportation reads:

2982A reasonable walking distance for any student

2989who is not physically handicapped is any

2996distance not more than two (2) miles between

3004the home and school or one and one-half (1

30131/2) miles between the home and the assigned

3021bus stop. Such distance shall be measured

3028from the closest pedestrian entry point of the

3036property where the student resides to the

3043closest pedestrian entry point of the assigned

3050school building or to the assigned bus stop.

3058The district shall determine the shortest

3064pedestrian route whether or not it is

3071accessible to motor vehicle traffic.

307626. By its Rule 2.23, the Board has enacted standards consistent with the

3089state Rule.

309127. Mr. Baker, the Board's director of transportation, based on the

3102information available to him both as to distance and to safety, concluded that

3115the distance from the school to what he determined to be the pedestrian entry

3129point of the property where the concerned students reside was 178 feet less than

3143two miles, and, therefore, those students were not entitled to Board provided

3155transportation. There is no dispute as to the accuracy of the distances

3167involved - only as to the pertinent pedestrian entry points. Even then, the

3180entry point at the school is not questioned.

318828. The Board determined that the entry point to the Boca Palms complex

3201was at the juncture of the complex's formal gate house drive with the public

3215street running along the eastern boundary of the complex. Petitioners,

3225supported by Mr. Wattenburg, have taken the position that since the public has

3238access to the entry way up to the gate house, the gate house location, some 277

3254feet from the public street junction, is the controlling pedestrian entry point.

326629. The evidence of record does not indicate any other recognized

3277pedestrian entry points on the perimeter of the complex though, to be sure,

3290individuals can enter through the construction area to the north and through the

3303vegetation along the southeast perimeter line. Taken together, however, the

3313Department's interpretation, as restrictive as it may be, cannot be said to be

3326arbitrary, capricious, erroneous, illegal, oppressive or an invalid exercise of

3336delegated legislative authority, especially in light of the fact it is

3347consistent with the state Department of Education rule and stated practice.

3358Instead, the evidence demonstrates that the Board's action, while possibly

3368imposing some hardship on Petitioners, is consistent with the enabling statute

3379and the Department of Education's rule on the same subject. Petitioners have

3391failed to establish otherwise.

339530. Based on the foregoing Findings of Fact and Conclusions of Law, it is,


3410ORDERED that the Petitioners' challenge to Rule A-3.001(3), F.A.C., and

3420the School Board of Palm Beach County's Policy 2.25 based thereon, pertaining to

3433school bus transportation is hereby dismissed.

3439DONE and ORDERED in Tallahassee, Florida this 7th day of May, 1992.



3455Hearing Officer

3457Division of Administrative Hearings

3461The DeSoto Building

34641230 Apalachee Parkway

3467Tallahassee, Florida 32399-1550

3470(904) 488-9675

3472Filed with the Clerk of the

3478Division of Administrative Hearings

3482this 7th day of May, 1992.


3492IN CASE NO. 92-0550-RX

3496The following constitutes my specific rulings pursuant to Section

3505120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

3517by the parties to this case.


35261. & 2. Accepted and incorporated herein.

35333. - 6. Accepted and incorporated herein.

35407. - 10. Accepted.

354411 & 12. Accepted.

354813 & 14. Accepted and incorporated herein.

355515 & 16. Accepted.

355917 & 18. Accepted and incorporated herein.


35691 - 3. Accepted and incorporated herein.

35764. Accepted.

35785. & 6. Accepted and incorporated herein.

35857. Accepted and incorporated herein.


3592Max Bregar, Esquire

3595Sachs & Sax

3598Post Office Box 810037

3602Boca Raton, Florida 33431

3606Robert A. Rosillo, Esquire

3610School Board of Palm Beach County

36163970 RCA Blvd. Suite 7010

3621Palm Beach Gardens, Florida 33410

3626Liz Cloud, Chief

3629Bureau of Administrative Code

3633The Capitol, Room 1802

3637Tallahassee, Florida 32399-0250

3640Carroll Webb, Executive Director

3644Administrative Procedures Committee

3647Holland Building, Room 120

3651Tallahassee, Florida 32399-1300

3654Thomas J. Mills, Superintendent

3658Palm Beach County School Board

36633323 Belvedere Road

3666West Palm Beach, Florida 33402

3671Honorable Betty Castor

3674Commissioner of Education

3677Department of Education

3680The Capitol

3682Tallahassee, Florida 32399-0400


3691A party who is adversely affected by this Final Order is entitled to

3704Judicial Review pursuant to Section 120.68, Florida Statutes. Review

3713proceedings are governed by the Florida Rules of Appellate Procedure. Such

3724proceedings are commenced by filing one copy of a Notice of Appeal with the

3738Agency Clerk of the Division of Administrative Hearings and a second copy,

3750accompanied by filing fees prescribed by law, (or, when appropriate, a

3761certificate of indigence), with the District Court of Appeal, First District, or

3773with the District Court of Appeal in the appellate district where the party

3786resides. The Notice of Appeal must be filed within 30 days of rendition of the

3801Order to be reviewed.

Select the PDF icon to view the document.
Date: 09/25/1992
Proceedings: Index, Record, Certificate of Record sent out.
Date: 07/28/1992
Proceedings: Index & Statement of Service sent out.
Date: 06/12/1992
Proceedings: Letter to DOAH from DCA filed. DCA Case No. 4-92-1709.
Date: 06/09/1992
Proceedings: Certificate of Notice of Appeal sent out.
Date: 06/08/1992
Proceedings: Notice of Appeal filed.
Date: 05/27/1992
Proceedings: Notice filed. (From Mark L. Bregar)
Date: 05/07/1992
Proceedings: DOAH Final Order
Date: 05/07/1992
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 2/28/92.
Date: 04/22/1992
Proceedings: (Petitioners`) Proposed Recommended Order filed.
Date: 04/09/1992
Proceedings: Recommended Order w/(unsigned) Recommendation filed. (From Robert A. Rosillo)
Date: 04/07/1992
Proceedings: Transcript of Proceedings filed.
Date: 03/17/1992
Proceedings: (Petitioners) Notice of Filing filed.
Date: 03/02/1992
Proceedings: (Respondent) Response to Request to Produce filed.
Date: 02/25/1992
Proceedings: Petitioners` Request for Production filed.
Date: 02/07/1992
Proceedings: (ltr form) Request for Subpoenas w/Notice of Appearance filed. (From Robert A. Rosillo)
Date: 02/03/1992
Proceedings: Notice of Hearing sent out. (hearing set for Feb. 28, 1992; 9:00am; Boca Raton).
Date: 01/31/1992
Proceedings: Order of Assignment sent out.
Date: 01/30/1992
Proceedings: Letter to Liz Cloud & Carroll Webb from Marguerite Lockard
Date: 01/29/1992
Proceedings: (no title) Petition for Administrative Determination of the Invalidity of a Proposed Rule filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Boca Raton, Florida
County School Boards

Related DOAH Cases(s) (1):

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):