94-004074 Grant L. Lester, A/K/A G. L. Lester vs. Duval County School Board
 Status: Closed
Recommended Order on Wednesday, May 17, 1995.

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Summary: Duval County School Board properly suspended bus contract and revoked school bus drivers license.



8GRANT L. LESTER, a/k/a )

13G. L. LESTER, )


18Petitioner, )


21vs. ) CASE NO. 94-4074




33Respondent. )



38A hearing was held in this case in Jacksonville, Duval County, Florida on

51March 15, 1995, before Suzanne F. Hood, a Hearing Officer with the Division of

65Administrative Hearings.


68For Petitioner: Michael Mullin, Esquire

7326 South 5th Street

77Fernandina Beach, Florida 32034

81For Respondent: Clay Meux, Esquire

86Vicki Reynolds, Esquire

89600 City Hall

92220 East Bay Street

96Jacksonville, Florida 32202


103The issues are whether Respondent properly suspended Petitioner's Contract

112for Transportation of School Children and revoked his license to drive a school



128By letter dated February 19, 1993, Respondent Duval County School Board

139(Respondent) notified Petitioner Grant L. Lester (Petitioner) that his contract

149to transport Duval County school children was suspended and his Florida

160Department of Education driver's license was revoked. Petitioner subsequently

169filed a Petition for Writ of Mandamus in the Circuit Court, Fourth Judicial

182Circuit, in and for Duval County, Florida. Said Petition, dated January 31,

1941994, sought an order requiring Respondent to provide Respondent with certain

205information and an opportunity for a hearing. Petitioner dismissed his Petition

216for Writ of Mandamus after the parties agreed to submit this matter to the

230Division of Administrative Hearings for resolution pursuant to Section

239120.57(1), Florida Statutes.

242On July 20, 1994, Respondent referred this case to the Division of

254Administrative Hearings for the assignment of a Hearing Officer. A Notice of

266Hearing dated August 17, 1994, set the case for hearing on March 14, 1995

280through March 17, 1995. On February 21, 1995, the undersigned issued an Order

293denying Respondent's motions to dismiss for failure to state grounds upon which

305relief could be granted and for failure to join Petitioner's wife as an

318indispensable party.

320When the hearing commenced on March 15, 1995, the undersigned granted

331Respondent's motion to dismiss the Duval County School Superintendent

340(Superintendent) as a party to the proceeding. Petitioner testified on his own

352behalf and presented the testimony of nine (9) witness. Petitioner offered six

364(6) exhibits into evidence. Respondent presented the testimony of five (5)

375witnesses and offered six (6) exhibits into evidence.

383The transcript of the proceedings was filed on April 10, 1995. Proposed

395findings of fact and conclusions of law were filed by Petitioner and Respondent

408on April 20, 1995. Rulings on the parties' proposed findings of fact are

421contained in the appendix to this Recommended Order.


4321. Respondent's method of providing transportation for its students is

442unique in the state of Florida because it contracts annually with independent

454contractors for each bus route. Pursuant to the contract, independent

464contractors furnish a bus or busses and are responsible for employing qualified

476drivers. In order to be qualified, drivers must hold a license issued by

489Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code.

4972. Respondent and Petitioner entered into an annual contract for

507Petitioner to transport school children in Bus #657 for the 1991-1992 school

519year. At all times material hereto, the parties continued to perform under the

532terms of the 1991-1992 contract because Respondent was still negotiating the bus

544contracts for the 1992-1993 school year. Petitioner had been an independent bus

556contractor for approximately nineteen (19) years. The contract provided no

566guarantee that Respondent would renew its contract with Petitioner from year to


5793. At all times material hereto, Petitioner's wife, Eloise J. Lester, was

591the independent bus contractor for Bus #28.

5984. At all times material hereto, Petitioner held a Florida Department of

610Education school bus license issued by Respondent to operate a school bus. He

623had been licensed to drive a school bus for Respondent for nineteen (19) years.

637During that time, he had driven a bus on the Plummer Road route approximately

6511,800 times with no reported mishaps. His prior record as a bus driver and bus

667contractor was unblemished.

6705. Respondent uses the Florida School Bus Drivers Handbook, published by

681the Florida Department of Education, as the curriculum to initially train

692drivers and for annual in-service training. Respondent gives a copy of this

704handbook to every driver.

7086. On the morning of February 8, 1993, Petitioner was driving his wife's

721bus #28 with students on board. He approached the railroad crossing at 9520

734Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern

746Railroad train #229 a "good ways" down the track. The railroad crossing

758signals, flashing lights and bells, were activated indicating that the train was

770approaching the crossing. The engineer blew the train's whistle. Despite these

781warnings, Petitioner drove the bus across the tracks in front of the approaching

794train. The bus cleared the tracks just seconds before the train entered the


8087. The engineer, Jimmy W. Carter, and the conductor, Everett Maine,

819witnessed the incident and immediately reported the "near miss" to the railroad

831yard by radio. Later they prepared written incident reports. Norfolk Southern

842Railroad reported the incident to Respondent.

8488. Mr. Carter has been a train engineer for twenty-five (25) years. Mr.

861Maine has been a train conductor for forty-three (43) years. They were not

874under the influence of drugs or alcohol at the time of the incident. They were

889not involved in any conspiracy to harm Petitioner.

8979. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the

911bus in her driveway with her grandchildren on the morning of February 8, 1993.

925She testified that she did not know where the train was when the bus crossed the

941tracks. She did not remember hearing any bells or whistles.

95110. Petitioner testified that he could see the light of the approaching

963train before he entered the crossing. He denied that the crossing lights were

976flashing or that the alarm bells were ringing at that time. However, Petitioner

989stated that under certain circumstances, even if the crossing signals were

1000activated, he had discretion to cross the tracks, i.e. when there is no train in

1015sight or a train is stopped on the track.

102411. The eyewitness testimony of the engineer and the conductor relative to

1036the activated signals and the distance of the train from the crossing at the

1050time Petitioner drove across the tracts is more persuasive than any testimony to

1063the contrary.

106512. After completing an investigation, the Director of Transportation, as

1075the designee of the Superintendent made a determination in writing to suspend

1087Petitioner's bus contract and revoke his school bus driver's license effective

1098February 19, 1993. The initial suspension of the contract and revocation of the

1111license was not permanent because both actions were subject to review by

1123Respondent. The Respondent has discretion to enter into a new bus contract with

1136Petitioner and to reinstate Petitioner's school bus license provided he meets

1147the requirements of Rule 6A-3.0141, Florida Administrative Code.

115513. In March of 1993, Respondent assigned the contract for Route #657

1167(School Bus #657) to Petitioner's wife at her request.


117914. The Division of Administrative Hearings has jurisdiction over the

1189parties and the subject matter in this case. Section 120.57(1), Florida


120115. Paragraphs B(7) and B(8) of the bus contract state as follows:

1213(7) The Contractor and his/her drivers shall

1220comply with all applicable terms and provisions

1227of Chapter 234, Florida Statutes, in addition to

1235all applicable federal, state and local laws,

1242rules and regulations, including without limi-

1248tation all rules and regulations promulgated

1254by the State Board of Education and the Board

1263[Respondent] and requirements of the Superin-

1269tendent of Schools. The Contractor shall be

1276solely responsible for the actions and conduct

1283of his/her employees as the same pertain to

1291fulfilling the covenants, agreement and provisions

1297of this Contract.

1300(8) If the Contractor fails to comply with any

1309of the covenants, agreements and provisions hereof,

1316this contract may be suspended, in writing, by the

1325Superintendent of Schools, or his designee, within

1332ten (10) days of the time that the violation becomes

1342known to the Superintendent of Schools, or his

1350designee. (NOTE: If the contractor is charged in

1358any court of law with any felony, or with any

1368misdemeanor of such a nature that, in the sole

1377judgment of the Superintendent of Schools, it

1384seriously affects the best interest of the Board,

1392the contract may be suspended until a final resolution

1401of the criminal charge(s). No suspension shall take

1409place until the facts surrounding the criminal

1416charge(s) have been reviewed by the Superintendent

1423of Schools, or his designee in his absence, to

1432determine if suspension is warranted. If the

1439Superintendent of Schools does deem suspension

1445to be warranted, the contractor may appeal the

1453suspension to the Board.)

145716. Paragraph C(2) of the bus contract provides as follows:

1467Any Florida Department of Education school bus

1474driver license issued by the Superintendent of

1481Schools may be suspended or revoked by the

1489Superintendent of Schools, or his designee, in

1496any case where a driver is deemed to be in

1506violation or non-compliance with any provisions

1512of this contract, and all federal, state and

1520local laws, rules, and regulations relative to

1527transportation of students on a school bus.

1534Thereafter, any driver whose license has been

1541suspended shall be prohibited from driving any

1548school bus on official Board business, unless

1555the license has subsequently reinstated by the

1562Superintendent of Schools, or his designee.

156817. Respondent's primary consideration must be the safety and protection

1578of health of its students when appointing drivers and operating buses in

1590accordance with all applicable law. Section 234.02, Florida Statutes.

159918. Section 234.111, Florida Statutes, provides as follows:

1607Each school bus shall be brought to a full stop

1617before crossing any railroad track and before

1624entering or crossing any arterial highway or

1631dangerous thoroughfare, and the bus shall not

1638proceed until the driver has clearly observed

1645that it is safe to proceed.

165119. Section 316.1575, Florida Statutes, provides in pertinent part as


1662(1) Any person walking or driving a vehicle and

1671approaching a railroad-highway grade crossing under

1677any of the circumstances stated in this section

1685shall stop within 50 feet but not less that 15

1695feet from the nearest rail of such railroad and

1704shall not proceed until he can do so safely. The

1714foregoing requirements apply when:

1718(a) A clearly visible electric or mechanical

1725signal device gives warning of the immediate

1732approach of a railroad train;

1737* * *

1740(c) An approaching train emits an audible signal

1748or the railroad train, by reason of its speed or

1758nearness to the crossing, is an immediate hazard; or

1767(d) An approaching railroad train is plainly

1774visible and is in hazardous proximity to the

1782railroad-highway grade crossing, regardless of

1787the type of traffic control devices installed at

1795the crossing.

179720. Section 316.159, Florida Statutes, specifically requires a school bus

1807driver to stop within the required number of feet, to listen and look in both

1822directions for approaching trains or activated warning signals, and to proceed

1833only after determining that it is safe to do so.

184321. Federal Motor Carrier Safety Regulations, United States Department of

1853Transportation, Federal Highway Administration, Subpart B, section 392.10,

1861mirrors Florida law for any bus transporting passengers but further requires the

1873driver to "ascertain that no train is approaching."

188122. The Florida School Bus Drivers Handbook (Handbook), revised 1990, was

1892prepared by FAPT Training Committee in cooperation with the Florida Department

1903of Education. Respondent uses the Handbook in training its drivers. The

1914Handbook provides procedures for school bus drivers at railroad crossings.

1924Generally, the driver must stop within the statutorily required distance from

1935the nearest rail, shift into neutral, open the door and driver's window, and

1948listen and look in both directions for approaching trains. Handbook, p. 16. If

1961lights are flashing at the crossing, the driver must not cross the tracks unless

1975directed to do so by a law enforcement officer. Handbook, p. 16.

198723. In this case, Petitioner has not met his burden of proving that

2000Respondent improperly suspended his contract and revoked his license. In fact,

2011Respondent presented clear and convincing evidence that Petitioner violated the

2021contract and state and federal law when he drove the bus through the railroad

2035crossing with the train in close proximity, train whistle blowing, signal lights

2047flashing, and warning bells ringing.

205224. The Superintendent's designee properly suspended the contract and

2061revoked the license in writing after completing an internal investigation.

2071Pursuant to the parties' agreement, Respondent afforded Petitioner review of the

2082adverse decisions by referring this matter to the Division of Administrative

2093Hearings for resolution pursuant to Section 120.57(1), Florida Statutes.


2103Based on the foregoing Findings of Fact and Conclusions of Law, it is

2116recommended that Respondent enter a Final Order affirming the suspension of

2127Petitioner's bus contract and revoking his school bus license.

2136DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of

2148May, 1995.


2151SUZANNE F. HOOD, Hearing Officer

2156Hearing Officer

2158Division of Administrative Hearings

2162The DeSoto Building

21651230 Apalachee Parkway

2168Tallahassee, Florida 32399-1550

2171(904) 488-9675

2173Filed with the Clerk of the

2179Division of Administrative Hearings

2183this 17th day of May, 1995.


2190The following constitutes my specific rulings pursuant to Section

2199120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

2211by the parties to this case.

2217Petitioner's Proposed Findings of Fact

22221. Accepted in paragraph 6 of this Recommended Order.

22312. Accepted in paragraphs 2-4 of this Recommended Order.

22403. Accept that the testimony of the witnesses is in conflict. However,

2252the testimony of the engineer and conductor is more persuasive than the

2264testimony of the neighbor, the Petitioner, or any other witness.

22744. Rejected. The suspension and revocation was subject to review by

2285Respondent and will not become final until the Respondent issues a Final Order

2298in this proceeding. Respondent has discretion to enter into a new contract with

2311Petitioner and to reissue a school bus license.

23195. Rejected. Ms. Mardis did not see the bus as it crossed the tracks.

2333The testimony of the engineer and the conductor is more persuasive.

23446. Rejected. The testimony of the engineer and the conductor is more


23577. Rejected. The contract was suspended and the license revoked subject

2368to review by Respondent. Even though the contract does not expressly provide

2380for an appeal to Respondent under the facts and circumstances of this case, the

2394right to review is implicit in the contract.

24028. Rejected. Regardless of what was said at staff meetings or in

2414conference with Petitioner, the contract was not suspended and the license not

2426revoked until Petitioner was notified in writing. Even then the adverse

2437decisions were reviewable by Respondent.

24429. The contract does not specifically provide Petitioner an opportunity to

2453explain why his contract should not be suspended and his license revoked at the

2467time of the staff conference. The suspension and revocation was subject to

2479review before the Respondent. Moreover, Respondent has provided Petitioner with

2489a due process hearing by referring this matter to the Division of Administrative


250310. Rejected. Ms. Lester was paid for transporting students in Bus 657

2515for the balance of the 1992-1993 school year beginning March of 1993. Since

2528that time, Ms. Lester has been paid for transporting children in Bus 657.

2541Respondent's Proposed Findings of Fact

25461.--15. Accepted in paragraphs 1-12 of this Recommended Order.

255516.--17. Accepted in paragraphs 1-2 of this Recommended Order.

256418.--19. Accepted in paragraph in paragraph 11 of this Recommended Order.

257520. Accepted but unnecessary to resolution of case.

258321. Accepted but not at issue in this case.

259222.--23. Accepted in paragraph 3.

259724.--25. Accepted in paragraph 12 of this Recommended Order.


2608Michael Mullin, Esq.

261126 S. 5th St.

2615Fernandina Beach, FL 32034

2619Clay Meux, Esq.

2622Vicki Reynolds, Esq.

2625600 City Hall

2628220 E. Bay St.

2632Jackonsville, FL 32202

2635Dr. Larry Zenke

2638Duval County School Board

26421701 Prudential Dr.

2645Jacksonville, FL 32207-8154

2648Frank T. Brogan

2651Commissioner of Education

2654The Capitol

2656Tallahassee, FL 32399-0400


2665All parties have the right to submit written exceptions to this recommended

2677order. All agencies allow each party at least 10 days in which to submit

2691written exceptions. Some agencies allow a larger period within which to submit

2703written exceptions. You should contact the agency that will issue the final

2715order in this case concerning agency rules on the deadline for filing exceptions

2728to this recommended order. Any exceptions to this recommended order should be

2740filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 05/17/1995
Proceedings: Recommended Order
Date: 05/17/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 03/15/95.
Date: 04/20/1995
Proceedings: (Respondent) Proposed Recommended Order (For HO Signature) w/cover letter filed.
Date: 04/20/1995
Proceedings: (Petitioner) Recommended Order (For HO Signature) w/cover letter filed.
Date: 04/10/1995
Proceedings: Transcript (2 volumes, Tagged) filed.
Date: 03/23/1995
Proceedings: (8) Subpoena Ad Testificandum; (9) Affidavit of Service ; Subpoena Duces Tecum; Affidavit of Service filed.
Date: 03/15/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 03/10/1995
Proceedings: CASE STATUS: Hearing Held.
Date: 03/09/1995
Proceedings: CASE STATUS: Hearing Partially Held, continued to 3/10/95; 9:30am; Live Oak)
Date: 03/09/1995
Proceedings: Amended Notice of Hearing sent out. (hearing set for March 15-16, 1995; 9:00am; Ax)
Date: 03/03/1995
Proceedings: (Petitioner) Notice of Taking Deposition Duces Tecum filed.
Date: 02/27/1995
Proceedings: (Respondent) Notice of Appearance of Counsel filed.
Date: 02/27/1995
Proceedings: Motion for Continuance (Petitioner) filed.
Date: 02/21/1995
Proceedings: Order on Respondent's Motion to Dismiss Petition and Motion for Joinder of Parties sent out.
Date: 09/06/1994
Proceedings: (Letter form) Request for Subpoenas filed. (From Loree L. French)
Date: 08/29/1994
Proceedings: Duval County School Board's Motion to Dismiss Petition; Duval County School Board's Answer And Defenses; Motion for Joinder of Parties filed.
Date: 08/17/1994
Proceedings: Order sent out. (petitioner is order to file a petition conforming with rule 60Q-2.004 FL Administrative Code)
Date: 08/17/1994
Proceedings: Notice of Hearing sent out. (hearing set for 3/14-17/95; at 10:00am;in Jacksonville)
Date: 08/12/1994
Proceedings: Letter to Skye Lugo from Loree L. French (re: appropriate rules and deadlines for filing responses, motions etc) filed.
Date: 08/05/1994
Proceedings: Joint Response; Petition filed.
Date: 07/25/1994
Proceedings: Initial Order issued.
Date: 07/20/1994
Proceedings: Agency referral letter; Petition for Writ of Mandamus (Circuit Court)filed.
Date: 06/20/1994
Proceedings: Agency referral letter (w/no attachments) filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Fernandina Beach, Florida
County School Boards

Related DOAH Cases(s) (1):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):