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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRANT L. LESTER, a/k/a )

G. L. LESTER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4074

)

DUVAL COUNTY SCHOOL BOARD, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

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

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

Administrative Hearings.

APPEARANCES

For Petitioner: Michael Mullin, Esquire

26 South 5th Street

Fernandina Beach, Florida 32034

For Respondent: Clay Meux, Esquire

Vicki Reynolds, Esquire

600 City Hall

220 East Bay Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues are whether Respondent properly suspended Petitioner's Contract

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

bus.

PRELIMINARY STATEMENT

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

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

to transport Duval County school children was suspended and his Florida

Department of Education driver's license was revoked.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

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

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

1994, sought an order requiring Respondent to provide Respondent with certain

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

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

Division of Administrative Hearings for resolution pursuant to Section

120.57(1), Florida Statutes.

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

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

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

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

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

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

indispensable party.

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

Respondent's motion to dismiss the Duval County School Superintendent

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

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

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

witnesses and offered six (6) exhibits into evidence.

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

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

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

contained in the appendix to this Recommended Order.

FINDINGS OF FACT

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

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

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

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

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

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

2. Respondent and Petitioner entered into an annual contract for

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

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

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

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

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

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

year.

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

the independent bus contractor for Bus #28.

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

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

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

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

1,800 times with no reported mishaps. His prior record as a bus driver and bus

contractor was unblemished.

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

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

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

handbook to every driver.

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

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

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

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

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

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

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

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

crossing.

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

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

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

Railroad reported the incident to Respondent.

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

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

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

not involved in any conspiracy to harm Petitioner.

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

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

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

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

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

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

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

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

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

sight or a train is stopped on the track.

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

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

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

the contrary.

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

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

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

Statutes.

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

(7) The Contractor and his/her drivers shall

comply with all applicable terms and provisions

of Chapter 234, Florida Statutes, in addition to

all applicable federal, state and local laws,

rules and regulations, including without limi-

tation all rules and regulations promulgated

by the State Board of Education and the Board

[Respondent] and requirements of the Superin-

tendent of Schools. The Contractor shall be

solely responsible for the actions and conduct

of his/her employees as the same pertain to

fulfilling the covenants, agreement and provisions

of this Contract.

(8) If the Contractor fails to comply with any

of the covenants, agreements and provisions hereof,

this contract may be suspended, in writing, by the

Superintendent of Schools, or his designee, within

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

known to the Superintendent of Schools, or his

designee. (NOTE: If the contractor is charged in

any court of law with any felony, or with any

misdemeanor of such a nature that, in the sole

judgment of the Superintendent of Schools, it

seriously affects the best interest of the Board,

the contract may be suspended until a final resolution

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

place until the facts surrounding the criminal

charge(s) have been reviewed by the Superintendent

of Schools, or his designee in his absence, to

determine if suspension is warranted. If the

Superintendent of Schools does deem suspension

to be warranted, the contractor may appeal the

suspension to the Board.)

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

Any Florida Department of Education school bus

driver license issued by the Superintendent of

Schools may be suspended or revoked by the

Superintendent of Schools, or his designee, in

any case where a driver is deemed to be in

violation or non-compliance with any provisions

of this contract, and all federal, state and

local laws, rules, and regulations relative to

transportation of students on a school bus.

Thereafter, any driver whose license has been

suspended shall be prohibited from driving any

school bus on official Board business, unless

the license has subsequently reinstated by the

Superintendent of Schools, or his designee.

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

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

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

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

Each school bus shall be brought to a full stop

before crossing any railroad track and before

entering or crossing any arterial highway or

dangerous thoroughfare, and the bus shall not

proceed until the driver has clearly observed

that it is safe to proceed.

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

follows:

(1) Any person walking or driving a vehicle and

approaching a railroad-highway grade crossing under

any of the circumstances stated in this section

shall stop within 50 feet but not less that 15

feet from the nearest rail of such railroad and

shall not proceed until he can do so safely. The

foregoing requirements apply when:

(a) A clearly visible electric or mechanical

signal device gives warning of the immediate

approach of a railroad train;

* * *

(c) An approaching train emits an audible signal

or the railroad train, by reason of its speed or

nearness to the crossing, is an immediate hazard; or

(d) An approaching railroad train is plainly

visible and is in hazardous proximity to the

railroad-highway grade crossing, regardless of

the type of traffic control devices installed at

the crossing.

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

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

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

only after determining that it is safe to do so.

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

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

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

driver to "ascertain that no train is approaching."

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

prepared by FAPT Training Committee in cooperation with the Florida Department

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

Handbook provides procedures for school bus drivers at railroad crossings.

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

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

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

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

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

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

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

Respondent presented clear and convincing evidence that Petitioner violated the

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

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

flashing, and warning bells ringing.

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

revoked the license in writing after completing an internal investigation.

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

adverse decisions by referring this matter to the Division of Administrative

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

RECOMMENDATION

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

recommended that Respondent enter a Final Order affirming the suspension of

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

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

May, 1995.

___________________________________

SUZANNE F. HOOD, Hearing Officer

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 1995.

APPENDIX

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties to this case.

Petitioner's Proposed Findings of Fact

1. Accepted in paragraph 6 of this Recommended Order.

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

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

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

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

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

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

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

Petitioner and to reissue a school bus license.

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

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

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

persuasive.

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

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

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

right to review is implicit in the contract.

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

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

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

decisions were reviewable by Respondent.

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

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

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

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

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

Hearings.

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

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

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

Respondent's Proposed Findings of Fact

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

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

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

20. Accepted but unnecessary to resolution of case.

21. Accepted but not at issue in this case.

22.--23. Accepted in paragraph 3.

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

COPIES FURNISHED:

Michael Mullin, Esq.

26 S. 5th St.

Fernandina Beach, FL 32034

Clay Meux, Esq.

Vicki Reynolds, Esq.

600 City Hall

220 E. Bay St.

Jackonsville, FL 32202

Dr. Larry Zenke

Duval County School Board

1701 Prudential Dr.

Jacksonville, FL 32207-8154

Frank T. Brogan

Commissioner of Education

The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

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

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

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

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

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

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