99-001707 Usa Training Company, Inc. vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Thursday, October 28, 1999.

Summary: Petitioner`s driver improvement course entitled to approval even though innovative delivery system utilized.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

USA TRAINING COMPANY, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-1707

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to Notice, t his cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on August 3 and 4, 1999, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Mark K. Logan, Esquire

Smith, Ballard & Logan, P.A.

403 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Enoch Jon Whitney, General Counsel

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A432

Tallahassee, Florida 32302-0504

STATEMENT OF THE ISSUES

The issues presented are whether the Department has the

authority to approve Petitioner's distance-learning driver

improvement course, whether Petitioner's delivery system is

effective, and whether Petitioner's method of delivery complies

with statutory and rule requirements.

PRELIMINARY STATEMENT

Petitioner submitted its application for ap proval of a

driver improvement course in 1997. By letter dated March 8,

1999, the Department denied Petitioner's application, and

Petitioner timely requested an evidentiary hearing regarding that

denial. This cause was thereafter transferred to the Division of

Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Barbara Lauer; Phil

Ward; Marshall Scott Owens; Rick Whitworth; Tommy Edwards; Milton

Grosz; Jon Crumpacker; Terry Heller, Ph.D., and Sandra Lambert.

The Department presented the testimony of Richard I. Wark, Ph.D.,

and Sandra Lambert. Additionally, Petitioner's Exhibits numbered

1-12 and 14-20 and the Department's Exhibit numbered 1 were

admitted in evidence.

FINDINGS OF FACT

1. Petitioner is a provider of basic driver improvement

courses in a number of states, including Florida, Texas, and

New York. These courses use the traditional classroom setting.

2. Petitioner also provides its course via distance

learning in California and Texas. That course is conducted using

video and computer technology. The Texas course has been

evaluated three times by the Texas education agency, which has

determined that the delivery system is effective in achieving

behavioral and attitudinal changes in drivers taking the course.

3. In 1996 Petitioner's representatives met informally with

the Department's representative, Milton Grosz, to discuss

offering in Florida Petitioner's interactive video course which

is the same course as Petitioner's already-approved basic driver

improvement course. As a result of that meeting, Grosz, who

heads the Department's review committee, researched the

literature regarding the effectiveness of distance learning. His

research revealed a growing body of literature supporting

learning by interactive video but none in the field of driver

improvement. Grosz noted that other providers would complain

that the course's methodology does not work or that it offers the

potential for cheating but the literature did not support such

claims. Grosz recommended that the Department pilot test

Petitioner's course in a limited geographic area.

4. In 1997, Petitioner's representative in Tallahassee met

with the Department's Director and explained that Petitioner

proposed to introduce its distance-learning version of its course

in Florida. After being encouraged to submit an application for

approval, Petitioner did so on August 5, 1997.

5. On August 20, 1997, Barbara Lauer, the Chief of the

Department's Bureau of Driver Education and DUI Programs, wrote

to Petitioner advising that the Department had decided to proceed

with the development of interactive video methodology, limited to

a single judicial circuit until the Department could pilot test

that delivery system for effectiveness in Florida. That letter

had been approved by the Director and the Assistant Director of

the Department's Division of Driver's Licenses.

6. Petitioner's proposal for Florida uses video and

computer technology. The process begins when a person cited for

certain non-criminal traffic infractions elects to attend a basic

driver improvement course approved by the Department in lieu of a

court appearance. A person choosing Petitioner's interactive

video course would check out a laptop computer and four-hour

video tape from a Blockbuster Video outlet after signing a

contract. The contract provides that the student pay a fee,

agree to the terms of the course, acknowledge that he or she will

be subject to a validation process, acknowledge that he or she

will be tested as to the content and must answer correctly 32 of

the 40 questions in order to pass the course, and forfeit all

money paid if he or she does not pass the course.

7. Once the student agrees to the contractual terms, the

student takes the video home, watches the video, and uses the

laptop computer, linked to a data-base via modem, to answer

questions generated by the computer based on the course content.

The student must log into Petitioner's system several times

during the course process. He or she is then subjected to a

combination of verification and content questions including a

final exam. The student also must answer unique identifying

questions particular to the student taking the course which are

intended to ensure that the person answering the questions via

the computer is the student who registered for the course.

8. The course contains situational learning segments where

the student is encouraged to reflect on the driving situation

covered. Throughout the course process the student is encouraged

to use Petitioner's 1-800 number, manned by Florida-certified

instructors 24 hours a day, should the student have a question

about the course content or wish to discuss other driving

situations. A different 1-800 number is provided for technical

assistance 24 hours a day.

9. Upon return of the equipment to the Blockbuster Video

location, the student is informed as to whether he or she passed

or failed the course. If the student passed, he or she is issued

a certificate of completion from Petitioner's central office. If

the student failed, he or she is given a phone number to call

which results in the student being given a verbal quiz by a

course instructor, who can then determine that the student has

passed the course. Five to seven percent of students typically

fail the course.

10. Petitioner would establish a single Florida base of

operations if the course were approved for use in this State.

The address of each Blockbuster Video store where the course

computer and materials are available would be registered with the

State as a school.

11. Petitioner's interactive video course would be

available in many languages and would be offered in several

versions for handicapped and hearing-impaired individuals. Thus,

the course would be uniquely accessible to drivers whose

handicaps may not be accommodated by places where the traditional

classroom version of the course may be offered. The course would

be available also for drivers whose work schedules or personal

obligations do not allow them to take the basic driver

improvement course when offered in a classroom setting.

12. Several requests for additional information were made

by the Department, and Petitioner responded to all. By letter

dated July 6, 1998, the Department notified Petitioner that its

application for course approval was complete and could be

evaluated for content.

13. The Department routinely reviews applications for

driver improvement course approval by using a review committee.

The committee determines whether the application meets the

requirements of the administrative code (the Department's rules)

and the statutes and determines whether the course curriculum

should be approved for use in Florida. The review committee

members are the only Department personnel who have actually

reviewed the curriculum, have sat through the videotaped course,

and have used the interactive computer.

14. The review committee recommended that Petitioner's

interactive video course be approved. Accordingly, the

Department determined that the course content promotes driver

safety, driver awareness, and accident avoidance techniques.

15. In November 1998, the Director of the Department's

Division of Driver's Licenses was contacted by a reporter

regarding the use of Petitioner's interactive video course in a

single county in Florida. After the article appeared, the

Department's Executive Director received numerous letters from

Petitioner's competitors.

16. The Department has never before denied an application

which received the approval of its review committee. However, by

letter dated March 8, 1999, the Department advised Petitioner

that its application for approval was denied for the reasons that

the law does not contemplate approval of a basic driver

improvement course conducted in a non-classroom setting although

the law does not prohibit such approval, that the Department had

never before approved such a course, and that the concept of

independent study was not the best choice for effectuating

behavioral and attitudinal changes.

17. No one from the Department questioned its legal

authority to approve Petitioner's interactive video course until

Petitioner's competitors began contacting the Department. Even

after those contacts, the Department did not raise any concern

about its legal authority although it continued to correspond

with Petitioner regarding other aspects of Petitioner's

application. Only when the denial letter was issued did the

Department advise Petitioner that it did not have authority to

approve the course even though such approval was not prohibited.

18. Petitioner provided to the Department as part of its

application the effectiveness study performed for the State of

Texas which had reviewed Petitioner's interactive video course

three times, approving it on each occasion. That study concludes

that the course is effective in changing driver behavior. The

Department has historically accepted effectiveness studies done

for other states. Further, the Department does not require the

submission of an effectiveness study for approval of a course to

be offered in a single judicial circuit.

19. The Department determined that the course participation

validation process was acceptable and does not challenge that

process now.

20. Jon Crumpacker, an expert in distance learning, has

worked on distance learning projects for the Florida Departments

of Corrections, Agriculture and Consumer Services, Education,

Transportation, Management Services, Military Affairs, Juvenile

Justice, and the Lottery, which have all embraced and used

interactive technology similar to that proposed by Petitioner.

He found Petitioner's technology to be effective in delivering

course content and to be a particularly reliable form of

interactive technology. He also concluded that Petitioner's

technology is not "radical" as previously characterized by the

Department.

21. A delivery system or mechanism is how a particular

course content is imparted to a student. There are a variety of

systems used today, including traditional classroom, computer-

assisted instruction, and virtual classrooms on the Internet.

The contractual element of Petitioner's course motivates students

to participate in the learning process, as does the testing

component, particularly when compared with the traditional

classroom delivery system of the basic driver improvement course

which includes no testing component. Petitioner's delivery

system is a true interactive system and is an effective delivery

system, likely to cause changes in attitude and behavior.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. Sections 120.569 and 120.57(1), Florida Statutes.

23. Section 318.14(9), Florida Statutes, provides, in part,

that a person charged with certain traffic infractions

. . . may, in lieu of a court appearance,

elect to attend in the location of his or her

choice within this state a basic driver

improvement course approved by the Department

of Highway Safety and Motor Vehicles.

[Emphasis supplied.]

Although this Subsection uses the language "attend . . . a basic

driver improvement course," Subsection (5) uses the language

"attendance at a driver improvement school," and Subsection

10(a)(1) uses the language "attend a driver improvement course."

Similarly, Section 318.1451, Florida Statutes, speaks in terms of

both courses and schools. See Subsections (1), (3), and (4).

Section 318.15(1), Florida Statutes, uses language concerning

attending schools, but Section 322.0261 regulates driver

improvement courses as does Section 322.095.

24. The statutes provide no definitions for the words

"attend" or "school." The Department has enacted rules regarding

driver improvement courses. Chapter 15A-8, Florida

Administrative Code. Rule 15A-8.001 provides that the purpose of

the Chapter is to establish "the standards for approval of driver

improvement courses," and the remainder of the Chapter does that.

It does not appear to regulate schools. Rule 15A-8.002(7) does,

however, contain a definition of a driver improvement school, as

follows:

An authorized person, firm, partnership,

association, corporation, public school

system, public community college or public

university which conducts Department approved

Basic Driver Improvement, Advanced Driver

Improvement, or Traffic Law and Substance

Abuse Education courses in the State of

Florida.

Thus, any entity can be called a school so long as it conducts an

approved course. Petitioner intends to designate each

Blockbuster outlet it uses as a school.

25. The Department's denial letter advised Petitioner that

no take-home course had ever been approved. The Department

conceded at final hearing that no prior application had been

considered. The fact that no one else has proposed offering such

a course is not a serious reason for denying the application but

merely sets forth that there is no precedent for approving or

denying such a course.

26. The denial letter also advised Petitioner that

independent study is not the "best choice." The Department has

cited no statute or rule, and none has been found, which

establishes "best choice" as a criterion for review or approval

of a driver improvement course in the State of Florida. Further,

the Department's explanation in its letter as to why independent

study is not the "best choice" is not supported by the weight of

the evidence in this cause. Rather, the weight of the evidence

is that Petitioner's interactive video course is reliable and

effective in achieving behavioral and attitudinal changes, and

that a student voluntarily electing that delivery method is well

motivated to learn using it.

27. The Department's primary reason for denying

Petitioner's application is the Department's lack of authority to

approve such a delivery system. The Department readily concedes

that the law does not prohibit such a delivery system. The

Department also concedes that it can pilot test innovative

programs for driver training. See , for example, Section 322.025,

Florida Statutes, and Rule 15A-8.006(3), Florida Administrative

Code.

28. Petitioner bears the burden of showing that its

proposed interactive video course complies with all statutory and

rule criteria. The statutes and rules do not specify the method

of delivery of courses approved by the Department. Accordingly,

the Department can interpret the statutes and rules to restrict

the delivery method to only traditional classroom instruction, or

the Department can interpret those same statutes and rules to

allow for various delivery methods so long as the course content

meets the statutory and rule requirements, as Petitioner's

proposed course does.

29. The Department has enunciated no policy reason for

interpreting Chapter 318 to permit only a traditional classroom

setting. Moreover, there is no language in the governing

statutes or in the Department's implementing rules requiring that

the traditional classroom setting be the only delivery system for

approved courses. The statutes and rules speak only in terms of

the Department regulating course content, not the delivery

system. It follows, then, that the Department does have the

authority to permit the use of different delivery systems for

courses where, as here, the course content complies with all

statutory and rule criteria. Finally, the Department has

articulated no reason for not permitting the use of Petitioner's

interactive video course on a trial basis in a single judicial

circuit, authority it readily admits it has.

30. The Department's arguments that it would have to adopt

additional rules or amend its existing rules and that the Supreme

Court of Florida would have to amend its traffic school Rule

6.330 are not persuasive and do not control the outcome of this

proceeding. The Department does not derive its legal authority

to regulate driver improvement courses from either of those

sources.

31. Equally unpersuasive is the Department's argument that

Petitioner's delivery method precludes students from

participating freely in the course. An instructor is available

at all times to discuss course content or other driving concerns

with a student taking Petitioner's interactive video course, and

the selection of Petitioner's course is only by the student's own

choice. No competent or credible evidence was offered that

students learn more or better only if other students are present.

Further, the "participate freely" requirement is only found in

the Department's rules and is a subjective term.

32. Lastly, the Department argues that the course should

not be approved because it includes a test and a test is not

required under Florida law. No one is required to take

Petitioner's course. If people choose to take it, and it is

harder than the other courses approved by the Department, so be

it. It is strange for the Department to argue for denial of the

application because it exceeds minimum requirements or because

the delivery system assures that students have learned something

from the course, assumedly one of the Department's goals.

33. Petitioner correctly argues that the Legislature h as

embraced the concept of distance learning, as evidenced by

Section 364.507, Florida Statutes. Indeed, the Legislature has

established the Florida Distance Learning Network. Although

there is no evidence that Petitioner's proposed course is part of

that system, Petitioner's argument is more persuasive as to

legislative intent than the Department's. In other words, where

the Legislature has considered different methods of delivery of

curriculum, it has approved distance learning.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered granting

Petitioner's application for approval of its interactive video

course.

DONE AND ENTERED this 28th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of October, 1999.

COPIES FURNISHED:

Charles J. Brantley, Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B439

Tallahassee, Florida 32399-5000

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B439

Tallahassee, Florida 32399-5000

Michael J. Alderman, Esquire

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Building, Room B439

Tallahassee, Florida 32399-5000

Mark K. Logan, Esquire

Smith, Ballard & Logan, P.A.

403 East Park Avenue

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.