04-004304RP Sc. Read, Inc., A Florida Corporation And Jennifer Finch, As Parent, Legal Guardian And Next Friend Of Christopher Brady, A Minor vs. Seminole County School Board Status: Closed DOAH Final Order on Thursday, March 17, 2005.

Summary: Petitioners and Intervenor challenged a county-wide high school rezoning. The evidence failed to demonstrate that the Respondent`s Rule was an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SC. READ, INC., A FLORIDA )

CORPORATION AND JENNIFER FINCH, )

AS PARENT, LEGAL GUARDIAN AND )

NEXT FRIEND OF CHRISTOPHER )

BRADY, A MINOR, )

)

Petitioners, )

)

and )

)

TUSCAWILLA HOME OWNERS' )

ASSOCIATION, INC., )

)

Intervenor, )

)

vs. ) Case No. 04 - 4304RP

)

SEMINOLE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings

by its duly - designated Administrative Law Judge, Jeff B. Clark,

held a final hearing in this case on February 9, 10, 11, 12,

and 13, 2005. On January 12 and 13, 2005, a hearing was held to

determine whether Petitioners had standing to bring this rule

challenge.

APPEARANCES

For Petitioners: Alex Finch, Esquire

Aronsohn Law Group, LLP

280 South Ronald Reagan Boulevard

Suite 113

Longwood, Florida 32750

For Intervenor: Damon A. Chase, Esquire

Chase Law Offices, P.A.

1009 East Highway 436

Altamonte Springs, Florida 32701

For Respondent: Ned N. Julian, Jr., Esquire

Seminole Coun ty School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Maree Sneed, Esquire

Hogan & Hartson, LLP

555 - 13th Street, North west

Columbia Square

Washington, DC 20004

John Borkowski, Esquire

Hogan & Hartson, LLP

546 Carondelet Street

New Orl eans, Louisiana 70130

STATEMENT OF THE ISSUE

The issue presented for determination is whether the

proposed high school attendance zone plan, Z2, is an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On November 29, 2004, Petiti oners, SC. Read, Inc., a

Florida corporation, and Jennifer Finch, as parent, legal

guardian and next friend of Christopher Brady, a minor, filed a

petition with Respondent, Seminole County School Board (School

Board or Respondent), requesting a determinati on that the high

school attendance plan proposed to be adopted by Respondent

constituted an invalid exercise of delegated authority. On the

same day, the petition was forwarded electronically to the

Division of Administrative Hearings.

On December 1, 2004 , the Chief Administrative Law Judge

assigned the case to the undersigned Administrative Law Judge.

On December 2, 2004, a Notice of Hearing was forwarded to the

parties, scheduling a final hearing in the case for December 21

and 22, 2004. A case managem ent conference was held by

telephone on December 6, 2004. During that case management

conference, the final hearing scheduled for December 21 and 22,

2004, was rescheduled as a hearing on Respondent's motion to

dismiss based on Petitioners' alleged lack o f standing, and the

final hearing was rescheduled for January 12 through 14, 2005.

On December 13, 2004, Petitioners filed a Second Amended

Petition/Request for Determination of Invalidity of Proposed

Rule. In that petition, Petitioners alleged that the p roposed

rule was invalid for the following reasons:

a. The proposed rule is to be promulgated in violation of

Florida Statutes.

b. The Florida Statutes require the School Board to

utilize the average of October and February

attendance/enrollment numbers for rezoning data; the School

Board used only October attendance/enrollment numbers.

c. The School Board utilized inflated attendance numbers

by utilizing "geographic" attendance numbers rather than actual

attendance/enrollment numbers alleged to be over - crowded or

"undercrowded" (sic), and which were subject to the

redistricting.

d. The School Board failed to coordinate rezoning and

planning with comprehensive land development as required by

applicable Florida Statutes.

e. The proposed rule is invalidly adopted, as the School

Board failed to follow its promulgated rules for adopting

policies and procedures, as those procedures relate to rezoning

and redistricting of high school attendance zones.

f. Section J, Section III - Process Revision, of the

Schoo l Board's policies on rezoning, requires that the School

Board:

a. Have "core" community committees

develop and recommend rezoning plans for

consideration by the SCHOOL BOARD;

b. Have the core committee review and

confirm governing parameters in the Board

policy;

c. Have the committee revise its

alternative plans based on public input;

d. Have the committee schedule a public

work session with the School Board to review

final plan recommendations and additional

input; and

e. Have the Board s elect a core committee

plan alternative for consideration.

g. The proposed plan, Z2, was created by the School

Board's superintendent without being presented to the Core

Committee for its consideration and review.

h. The proposed rezoning plan was prese nted to the School

Board by the superintendent without public input.

i. The School Board failed to follow its promulgated rules

in adopting or proposing to adopt Plan Z2 and in refusing to

adopt one of the three plan alternatives which resulted from the

p rocess required by the promulgated policies and procedures of

the School Board.

j. The School Board failed to obtain, provide to the Core

Committee, or consider in proposed adoption of Plan Z2 any

enrollment or relevant data related to affected feeder mid dle

schools.

k. The School Board's rezoning initiative is a result of

alleged overcrowding in Seminole County high schools.

l. The School Board's policies and procedures require that

the School Board audit "School Board" (sic) attendance in

affected scho ols where rezoning is a result of perceived "over -

crowding."

m. The School Board failed to conduct an audit of

attendance at all affected schools prior to adoption of the

proposed rule.

n. The School Board failed to review or consider safety or

traffic d ata relevant to busing of students created by

Plan Z2 or any other suggested plan. The School Board failed to

investigate or determine safety risks of transported children by

failing to conduct transportation tests and studies of current

traffic situatio ns along proposed transportation routes and

failed to consider future safety and transportation

circumstances from planned road development and construction

along the affected transportation path.

o. The School Board failed to conduct a financial impact

s tatement to ascertain the cost of Plan Z2 busing on county

transportation costs or the cost to affected parents resulting

from the additional distance and costs of personal

transportation to extracurricular activities.

p. The School Board failed to conduc t an adequate economic

impact statement considering the costs of the proposed rezoning

rule and failed to present such impact statement to the affected

public.

q. The proposed rule is arbitrary and/or capricious in its

development and implementation.

r. The School Board failed to conduct an attendance audit

to adequately verify attendance records within the affected

schools and, therefore, does not have either a competent or

substantial basis in fact supporting the necessity of the School

Board to rezone Lake Brantley High School as a result of "over -

crowding."

On December 13, 2004, Petitioners filed a motion to

continue the final hearing, which was granted during a telephone

hearing on December 15, 2004. A hearing on Petitioners'

standing was scheduled f or January 12 and 13, 2005, and the

final hearing was rescheduled for February 9 through 11, 2005,

if necessary. On January 12 and 13, 2005, a standing hearing

was held. An Order was entered on February 2, 2005, determining

that both Petitioners had stan ding.

On January 12, 2005, a Petition for Leave to Intervene was

filed by Tuscawilla Home Owners' Association, Inc., a Florida

corporation. On January 18, 2005, a telephone hearing was held

on the Petition for Leave to Intervene and Respondent's Response

to Petition for Leave to Intervene. By Order dated January 26,

2005, the Petition for Leave to Intervene was granted, subject

to Intervenor demonstrating standing at the onset of the final

hearing.

The final hearing took place as rescheduled on February 9,

10, and 11. The final hearing continued on Saturday,

February 12, and was concluded on Sunday, February 13, 2005.

Initially, the standing of Intervenor was considered.

Intervenor presented four witnesses: Moti Khemlani, Desiree

Dannecker, William R ynerson, and Daniel Torres. Intervenor

offered four exhibits that were relevant to the standing issue.

These were admitted and marked Intervenor's Exhibits 1

through 4. Respondent presented Superintendent Bill Vogel as

its witness and offered one exhib it, which was admitted as

Respondent's Exhibit 31. An ore tenus Order was entered at the

conclusion of the testimony and argument that Intervenor had

standing to challenge the validity of the rule, but that

Intervenor was limited to the issues raised by P etitioners.

Petitioners presented 16 witnesses: Pamela Levin, Jeffrey

Ashton, Dianne Kramer, Sandy Robinson, Kate Landis, Co - Co Wu,

Jeanne Morris, Larry Furlong, Lynne Smith, Gary Kreisler,

Raymond Gaines, Darvin Booth, John Pavelchak, Superintendent

Bill Vogel, Robert Moore, and Jennifer Finch. Petitioners

offered 21 exhibits that were admitted into evidence and marked

Petitioners' Exhibits 10 through 30. Respondent presented four

witnesses: Dede Schaffner, Diane Bauer, Superintendent Bill

Vogel, and P aul Hagerty. Respondent offered 13 exhibits that

were received into evidence and marked Respondent's Exhibits 32

through 44. During the course of the testimony of witnesses

called by Petitioners and Respondent, Intervenor attempted to

introduce two addit ional exhibits; one was admitted into

evidence and marked Intervenor's Exhibit 5, and the other was

not admitted, but was proffered and marked accordingly.

The Transcript of the final hearing was filed with the

Clerk of the Division of Administrative Heari ngs, on

February 28, 2005. Petitioners and Intervenor filed

Petitioners' and Intervenor's Joint Proposed Final Order;

Respondent filed Respondent's Proposed Final Order. Both

proposed orders were filed on March 7, 2005, as required. The

undersigned Adm inistrative Law Judge thoughtfully considered

both proposed orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. This rule challenge to a proposed rule is a result of

proposed changes to school attendance zones in Seminole County,

Florida, which would result in students attending different

schools than they presently attend.

2. Hagerty High School (Hagerty) is a newly constructed

Seminole County school. The opening of this new high school in

August 2005 was the catalyst for the county - wide rezoning.

Incidental to rezoning to accomplish populating the new high

school, adjustments in student populations were made in an

attempt to create appropriately balanced racial and ethnic

student populations and to alleviate school over - crowding.

3. Since 1970, schools in Seminole County have been

subject to the jurisdiction of the Federal government regarding

desegregation of the public schools. This continuing

jurisdiction is the subject of "Consent Decrees" between the

United States of America and Respondent in Case No. 70 - 152, ORL

CIV (M.D. Fla. August 19, 1975). In particular, adjustments in

school attendance zones have been the subject of the scrutiny of

the Federal gover nment. Several members of the current School

Board were on the School Board when a rezoning plan was rejected

by the Federal government.

4. Since early in the 1990's, the School Board and school

administration have aggressively pursued the goal of a "uni tary"

school system, i.e. , a system that has accomplished a myriad of

goals which equate to a system wherein any student, regardless

of race and ethnicity, has an equal opportunity for a quality

education. Once the status of a "unitary school district" is

accomplished, direct Federal supervision will cease. In 2002,

preparing for the day when "unitary" status would be achieved,

the School Board developed an extensive post - unitary status

policy.

The Parties

5. Petitioner, Jennifer Finch, is the mother of

Christopher Brady; she and Christopher reside in Seminole

County, in the residential community known as Sable Point.

Christopher is currently in the sixth grade. The Finch

residence is in Cell 27A; a "cell" is a geographic area created

by the Core Commi ttee when it divided the county into

numerically identified “cells” for purposes of considering

rezoning alternatives. The Finch residence is currently zoned

for Lake Brantley High School. As a result of the proposed

rezoning, children (with the exceptio n of "grandfathered in"

children) residing in Cell 27A will be zoned to attend Lyman

High School. Lake Brantley High School is "over - crowded." The

facility is designed to accommodate 3,000 students; it has a

current student population of approximately 3, 650. Because of

Lake Brantley High School's over - crowding, its principal

regularly audits the student population, using unique and

creative methods, in an effort to assure that each of the

students attending Lake Brantley High School is zoned to attend

La ke Brantley High School.

6. Petitioner, SC. Read, Inc., is a Florida corporation.

Members of SC. Read, Inc., live in Cell 27A, and several of its

members have children who are currently enrolled in the public

schools of Seminole County.

7. Intervenor, T uscawilla Home Owners’ Association, Inc.,

is a Florida corporation. Part of Cell 10, and all of Cell 11,

are within the area of subdivisions represented by Intervenor.

Intervenor has 2,109 member households; 734 member households

are in Cells 10 and 11. The homes in Cells 10 and 11 are

single - family residences with many children who attend Seminole

County public schools. The proposed rezoning contemplates

students living in Cells 10 and 11, who are not specifically

"grandfathered in," attending Oviedo H igh School instead of

Winter Springs High School where they are currently zoned. One

of the specific functions of Intervenor is to engage in efforts

to secure educational opportunities and a stable educational

environment for its members. It has historic ally worked with

the schools to provide increased educational and extracurricular

activities for its constituent members.

8. The School Board is the governmental entity responsible

for the operation, supervision, and control of public schools in

Seminole County, Florida, including establishing attendance

zones, determining the educational capacity of schools and

assigning students to schools.

The Rezoning Process

9. Rezoning is a thankless responsibility; whenever the

lives of children are disrupted, pare nts are unhappy. Moving a

student from one school to another, places unanticipated demands

on both parents and students.

10. In January 2000, the School Board adopted a policy

entitled “Revision of School Attendance Zones” (hereinafter

referred to as “Po licy J”).

11. Section III of Policy J, entitled Process for

Revision, at Step One provides, in relevant part:

The Board establishes a Core Committee

including, but not limited to district

representatives . . . , affected school

administrators, a represe ntative from the

affected School Advisory Councils, and a PTA

representative from the affected schools to

solicit public input, develop and evaluate

alternative plans, and keep the local

community informed of the progress . . . .

12. The role of the Core Committee in the rezoning process

is advisory. Its responsibilities, as enumerated in Policy J,

are to serve as a conduit for public communication, receive

demographic data, create "cells" to be considered in attendance

zone shifts, consider public input , and create rezoning plans to

be considered by the School Board.

13. Policy J provides definitions of certain "words of

art" used in the rezoning process, for example, "Over -

enrolled/under - enrolled": an over - enrolled school has an

enrollment that exceed s its permanent design capacity, and an

under - enrolled school has an enrollment less than its design

capacity -- both are identified on an annual basis, and "Design

capacity": the permanent capacity of a school as calculated by

the Department of Education . Portables are not included in the

design capacity of a school. The calculation variables include

class size, classroom program types, and scheduling. Based on

appropriate definitions and criteria, Lake Brantley High School

is "over - enrolled" and Lyman High School is "under - enrolled."

14. In addition, Policy J specifies specific parameters

that "current and proposed attendance zone plans will be

measured against." The parameter having the highest priority

according to this policy is: "[T]he plan is c onsistent with the

district Consent Decrees as long as the decrees remain in

effect."

15. In April 2004, in anticipation of the August 2005

opening of Hagerty, the rezoning process was initiated. Because

rezoning was county - wide and affected numerous sch ools, the Core

Committee consisted of 54 people. The following schedule was

established:

Organizational Meeting June 15 Core Committee will identify

"cells"

Core Committee (CC) August 19 CC will use cell data to

develop plan options

Core Committee Sept. 2 CC will choose plans for

public input

Public Input Sept. 20 Lyman High 7:00 PM

Public Input Sept. 23 Winter Springs High 7:00 PM

Core Committee Sept. 30 CC uses public input to

develop final drafts

School Board Public Oct. 26 Educational Sup port Center

Input 6:00 PM

Final Adoption Nov. 9

16. This schedule outlined in paragraph 17, supra , was

essentially followed. However, one meeting was cancelled and

one shortened because of hurricanes. The Core Committee

meetings, while they took place in p ublic facilities, did not

lend themselves to ongoing public input due to the nature of the

work that was to be accomplished by the committee members. As

would be expected, the committee members relied heavily on

school administrators, Deputy Superintenden t of Operations

Dianne L. Kramer, in particular, who was the facilitator and

contact between the committee and school administration, for

information necessary for their consideration of student

demographics, school populations, and other pertinent data fo r

high schools and middle schools. Geographic enrollment numbers

(all potential students living in a geographic area) were used,

which is appropriate for rezoning planning. In addition to the

information provided directly and electronically to the Core

C ommittee members, which was more than adequate and conforming

to Policy J requirements, the School Board made this information

available to the interested public directly and electronically.

Nothing in this record indicates that any Core Committee member

was denied any needed information.

17. Policy J charges the Core Committee with the

responsibility "to solicit public input, develop and evaluate

alternative plans, and keep the local community informed of the

progress." This was accomplished. Because t he Core Committee

is composed of members of the Parent - Teacher Associations and

School Advisory Councils from each affected school, parents were

involved and made aware of the Core Committee activities. The

Core Committee and the School Board meetings wer e advertised as

required. There was a great deal of public awareness of the

rezoning process. For example, it was estimated that 1,600

people attended the two scheduled "public input" sessions, and

the School Board meeting and workshop where the plans we re

presented took more than seven hours.

18. At the conclusion of the Core Committee's

consideration of many alternatives, some of which were submitted

by the public, three rezoning plans were advanced by the

committee. These plans were identified as W, Z, and Z1.

Plan Z1 was a plan modified by Deputy Superintendent Kramer at

the direction of the committee. These plans were then published

on the School Board web - site and made available to the School

Board members.

19. Policy J and the Core Committee's stated involvement

and participation in the "process for revision," was

substantially complied with and any deviation from Policy J or

the Core Committee's purpose was insignificant and did not

negatively affect the rezoning process.

20. On October 19, 2 005, the School Board members took an

informational bus trip during which they traveled proposed bus

routes for the rezoning plan alternatives. The School Board

members are generally familiar with routes to and from the

various schools in Seminole County.

21. Seminole County, like most of Central Florida, has

experienced dynamic growth in the past decades. This growth has

burdened the infrastructure of all communities. As a result,

not only are new schools needed, but roads must be constructed

and impro vedaffic congestion, whether occasioned by too

many vehicles, new construction or for whatever reason, is a

daily challenge to central Floridians. Regardless of the

particular school a student attends, buses transporting students

will be a part of th e traffic with which all motorists,

including the bus drivers, must contend. Student transportation

is a consideration in rezoning, but is not significant or

controlling.

22. The School Board has a safety advisory committee whose

membership includes poli ce officials and traffic safety

personnel from the various governmental entities in Seminole

County. As safety or traffic issues arise, this committee

provides recommendations regarding those issues. As the need

arises, bus routes can be adjusted to acco mmodate optimum travel

time and safety.

23. Subsequent to the publication of the Core Committee

Plans W, Z, and Z1, several of the School Board members

approached Superintendent Bill Vogel and indicated that they did

not feel that any of the Core Committe e plans would be

acceptable to the Federal government. The School Board members

are regularly informed of student demographics, school

populations, over/under - crowding, and myriad other statistics

which help them make informed judgments in their roles as School

Board members. On each school day, every Seminole County school

electronically provides the School Board administration with

data, including attendance information, to assist in school

governance. During the rezoning process, each School Board

mem ber was provided timely updates on the Core Committee's

activities and had numerous contacts with the general public

regarding concerns associated with rezoning.

24. Perhaps, the School Board members who had previously

seen a rezoning plan rejected by the Federal government were

overly concerned; perhaps, in order to achieve "unitary" status,

they wanted to see racial and ethnic ratios adjusted to meet

county averages; or perhaps, they were concerned about

under/over - crowding. For whatever reason, the Sch ool Board

members directed Superintendent Vogel to create additional

rezoning plans which would address over - crowding at Lake

Brantley High School and student enrollment at Lyman High School

that included disproportionately high percentages of students

qua lifying for free or reduced - price lunches.

25. As a result, Superintendent Vogel directed Deputy

Superintendent Kramer to prepare modified plans addressing the

deficiencies in Plans W, Z, and Z1: that enrollment at Lake

Brantley High School had not been reduced in the plans presented

by the Core Committee to the extent that it needed to be and

that the percentage of students receiving free and reduced - price

lunches at Lyman High School was too high in each of the plans

presented by the Core Committee. In addition, Superintendent

Vogel believed a greater number of the district's high schools

could be closer in enrollment percentages to the county - wide

averages for black students, Hispanic students, and students

receiving free and reduced - price lunches. Th is planning

direction is one of the fundamental considerations of Policy J.

26. Using essentially the same data and cells identified

by the Core Committee, Deputy Superintendent Kramer developed

Plans Z2 and Z3 in response to the Superintendent's directiv e.

Plan Z2 incorporates the essential components of the plans

advanced by the Core Committee with modification of the

attendance zones for specific cells. The primary modification

in Plan Z2 is moving Cell 27A from the Lake Brantley High School

attendanc e zone to the Lyman High School attendance zone.

Cells 10 and 11, which are included in the Intervenor's area of

interest, were recommended for transfer from Winter Springs High

School in Plan Z as well as Plans Z1 and Z2. Plans Z1 and Z2

were forwarded to the School Board and the Core Committee

members electronically upon development.

27. On October 26, 2004, after being appropriately

advertised, all five rezoning plan alternatives were presented

at an eight - hour public meeting of the School Board held at the

School Board's administration building, at which time the public

addressed the School Board on the subject rezoning plans. At

the close of the public input, Superintendent Vogel recommended

Plan Z2 to the School Board.

28. During the presentation in which Plan Z2 was

recommended, Superintendent Vogel presented an assessment of

each of the five rezoning plan alternatives and how each

impacted each Seminole County high school, including the new

high school, Hagerty. This assessment included the cur rent

student enrollment, with black students, Hispanic students, and

students receiving free or reduced - price lunches noted by

percentage, current numeric enrollment, and target numeric

enrollment. The assessment specifically addressed the effect of

each rezoning plan alternative on these critical areas and

demonstrated how each plan alternative measured against each

critical area. Superintendent Vogel's recommendation reflects

consideration of the criteria and process outlined in Policy J,

as well as con siderations fundamental to the basic objectives

articulated by the School Board's commitment to becoming a

"unified" school district.

29. Members of the School Board were not bound by

Superintendent Vogel's assessment; each had a worksheet by which

each i ndividual School Board member could render his or her own

assessment. In addition, several of the School Board members

had over 14 years of Board experience being first elected in

1990. These experienced members had participated in previous

rezonings and had a wealth of experience and knowledge of

critical information needed to make informed decisions with or

without Superintendent Vogel's assessment of the various plans.

The totality of the evidence presented revealed that each of the

School Board membe rs was well - informed on all significant data

needed to make an informed decision.

30. At the close of the October 26, 2004, meeting, the

School Board unanimously voted to accept Superintendent Vogel's

recommendation of Plan Z2 with certain modifications.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearing has

jurisdiction over the parties to and the subject matter of this

case, pursuant to Section 120.56, Florida Statutes (2004).

32. This administrative proceeding is a challenge to a

proposed r ule.

33. Subsections 120.56(1) and (2), Florida Statutes

(2004), read in pertinent part: Challenges to rules. --

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE. --

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an

administrative determination must state with

part icularity the provisions alleged to be

invalid with sufficient explanation of the

facts or grounds for the alleged invalidity.

* * *

(2)(a) The petition shall state with

particularity the objections to the proposed

rule and the reasons that th e proposed rule

is an invalid exercise of delegated

legislative authority. The petitioner has

the burden of going forward. The agency

then has the burden to prove by a

preponderance of the evidence that the

proposed rule is not an invalid exercise of

del egated legislative authority as to the

objections raised.

34. Petitioners and Intervenor have alleged that the

"proposed rule," rezoning alternative Plan Z2," is an invalid

exercise of delegated legislative authority.

35. Subsection 120.52(8), Florida Statutes (2004), reads:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies , or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly al ternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or i s within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the pow ers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

36. Subsection 120.52(15), Florida Statutes (2004), reads:

"Rule" means each agency s tatement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

req uired by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule.

37. The adoption of district - wide high school student

attendance zones or district - wide revision of high school

student attendance zones is rule - making. P olk v. School Board

of Polk County , 373 So. 2d 960, 961 (Fla. 2d DCA 1979).

38. Respondent is the constitutional entity charged with

the operation, control, and supervision of public schools in

Seminole County, Florida. Art. IX, § 4, Fla. Const.

39. A s chool board is classified as an "Educational Unit."

§ 120.52(6), Fla. Stat. (2004).

40. A school board may adopt or revise student attendance

zones under its general rule making authority as set forth in

Section 1001.41, Florida Statutes (2004), and RHC and

Associates, Inc. v. Hillsborough County School Board , Case

No. 02 - 3138RP, 25 FALR 157, 178 (Fla. Div. Adm. Hrgs. 2002)

(stating that Florida Statutes Sections 230.03 (now Section

1001.32) and 230.22 (now Section 1001.41) delegated “broad

statutory aut hority to the school boards to operate the local

systems . . .”).

41. Under Florida law, “district school boards may adopt

rules to implement their general powers under s. 1001.41.”

§ 120.81(1)(a), Fla. Stat. (2004).

42. A school board’s “rule - making f unction involves the

exercise of discretion, and absent a flagrant abuse of that

discretion a court may not substitute its judgment for that of

the agency.” Polk v. School Board of Polk County , 373 So. 2d

at 962.

43. Subsections 1001.41 (1), (2) and (6) , Florida Statutes

(2004), read as follows:

The district school board, after

considering recommendations submitted by the

district school superintendent, shall

exercise the following general powers:

(1) Determine policies and programs

consistent with state law and rule deemed

necessary by it for the efficient operation

and general improvement of the district

school system.

(2) Adopt rules pursuant to 120.536(1)

and 120.54 to implement the provisions of

law conferring duties upon it to supplement

t hose prescribed by the State Board of

Education and the Commissioner of Education.

* * *

(6) Assign students to school.

44. Subsections 1001.42(4)(a) and (22), Florida Statutes

(2004), read as follows:

The district school board, acting as a

board, shall exercise all powers and perform

all duties listed below:

* * *

(4) ESTABLISHMENT, ORGANIZATION, AND

OPERATION OF SCHOOLS – Adopt and provide for

the execution of plans for the

establishment, organization, and operation

of the sc hools of the district, including,

but not limited to, the following:

(a) Schools and enrollment plans. –

Establish schools and adopt enrollment plans

that may include school attendance areas and

open enrollment provisions.

* * *

(22) ADOP T RULES. Adopt rule pursuant to

ss. 120.536(1) and 120.54 to implement this

section.

45. Respondent explicitly is authorized to establish

school attendance as it has done in the instant case; therefore,

it did not enlarge, modify, or contravene the spec ific

provisions of those statutes when it developed attendance zones

in order to assign students to the public schools in Seminole

County.

46. A Superintendent of Public Schools is a constitutional

officer, charged with the exclusive authority, duty, and

responsibility for making recommendations regarding policies to

be adopted by the School Board. Art. IX, § 5, Fla. Const.;

§§ 1001.49(3) and 1001.51, Fla. Stat. (2004).

47. The superintendent is charged with the authority,

duty, and responsibility for m aking recommendations to the

school board for the establishment, organization, and operation

of schools, classes, and services, which include recommending

revisions to high school attendance zones. §§ 1001.49(4) and

1001.51(6), Fla. Stat. (2004).

48. Rez oning Plan Z2 was submitted to the School Board for

its consideration by Superintendent Vogel pursuant to his

authority as set forth in Subsections 1001.49(3), 1001.49(4),

and 1001.51(6), Florida Statutes (2004).

49. Respondent, like all school boards in Florida, may

only act to accept or reject recommendations submitted by the

superintendent. § 1001.41, Fla. Stat. (2004). In the instant

case, Respondent unanimously accepted Superintendent Vogel's

recommendation with modifications, in accordance with Flo rida

law.

50. Subsection 120.56(2)(a), Florida Statutes (2004),

charges Petitioners with providing the specific grounds for

their objections to the proposed rule and the reasons they

allege that the proposed rule is an invalid exercise of

delegated legisl ative authority.

51. Petitioners' Second Amended Petition/Request for

Determination of Invalidity of Proposed Rule alleges 18 specific

grounds.

52. Petitioners alleged that the proposed rule is to be

promulgated in violation of Florida Statutes. Althoug h no

specific statute is identified, the preponderance of the

evidence is that Respondent followed applicable statutes in the

promulgation of the proposed rule. Meetings of the School Board

and the Core Committee were advertised, and the proposed plans

we re advertised and published.

53. Petitioners alleged that the Florida Statutes require

the School Board to utilize the average of October and February

attendance/enrollment numbers for rezoning data; the School

Board used only October attendance/enrollmen t numbers. The

evidence is that the use of the October and February attendance

average is for specific activities other than rezoning.

Respondent used geographic enrollment numbers (all potential

students living in a geographic area) which are appropriat e for

rezoning planning. There is no statutory requirement directing

the use of particular student enrollment figures for rezoning.

54. Petitioners alleged that the School Board utilized

inflated attendance numbers by utilizing "geographic" attendance

nu mbers rather than actual attendance/enrollment numbers alleged

to be over - crowded or "undercrowded" (sic), and which were

subject to the redistricting. Although geographic attendance

figures were used, this allegation is not supported by the

evidence; as stated immediately above, the geographic enrollment

numbers used were appropriate, as they represent all potential

students in a particular geographic area.

55. Petitioners alleged that the School Board failed to

coordinate rezoning and planning with comp rehensive land

development as required by applicable Florida Statutes. The

evidence failed to show any such statutory requirement.

56. Petitioners alleged that the proposed rule is

invalidly adopted as the School Board failed to follow its

promulgated ru les for adopting policies and procedures, as those

procedures relate to rezoning and redistricting of high school

attendance zones. This allegation is not supported by the

evidence; as previously stated, Policy J was essentially

followed and any deviation was harmless.

57. Petitioners alleged that Section J, Section III -

Process Revision, of the School Board's policies on rezoning,

requires that the School Board:

a. Have "core" community committees

develop and recommend rezoning plans for

consideratio n by the SCHOOL BOARD;

b. Have the core committee review and

confirm governing parameters in the Board

policy;

c. Have the committee revise its

alternative plans based on public input;

d. Have the committee schedule a public

work session with the School Board to review

final plan recommendations and additional

input; and

e. Have the Board select a core committee

plan alternative for consideration.

The evidence supports Respondent's contention that Policy J was

followed as a practical matter; Policy J does not supercede the

Florida Constitution and Florida Statutes and must be reconciled

with those controlling directives. For example, the suggestion

that the School Board must "select a core committee plan for

consideration," must be tempered b y the requirement that the

superintendent must recommend a plan and that the School Board

must consider the recommendation of the superintendent. In this

case, the School Board members independently considered all

three plans forwarded by the Core Committ ee, were not satisfied

with the plans, and directed Superintendent Vogel to bring

forward additional plans which addressed deficiencies noted by

the School Board members in the Core Committee plans. As a

practical matter, Policy J was followed because all the Core

Committee plans were considered (and rejected), and Plan Z2,

while not a plan of the Core Committee, utilizes the same

attendance zones and is a "hybrid" of the Core Committee's

efforts.

58. Petitioners alleged that the proposed plan, Z2, was

cr eated by the School Board's superintendent without being

presented to the Core Committee for its consideration and

review. The evidence is that, after plan alternative Z2 was

created, each member of the Core Committee was e - mailed the

plan, that the plan was advertised, and that any Core Committee

member could have participated in the October 26, 2004, public

meeting. In addition, any Core Committee member could have

contacted any or all of the School Board members regarding plan

alternatives Z2 and Z3.

5 9. Petitioners alleged that the proposed rezoning plan

was presented to the School Board by the superintendent without

public input. The evidence is that plan alternative Z2 was

advertised and was the subject of public consideration at the

October 26, 20 04, meeting which involved approximately seven

hours of public input.

60. Petitioners alleged that the School Board failed to

follow its promulgated rules in adopting or proposing to adopt

Plan Z2 and in refusing to adopt one of the three plan

alternative s which resulted from the process required by the

promulgated policies and procedures of the School Board. As

previously suggested, Policy J is not controlling; Florida law

gives the superintendent and the School Board the implicit

authority to consider o ther plans. Policy J was followed to the

extent that all Core Committee plans were considered to such an

extent by the School Board that the School Board members found

deficiencies in the Core Committee plans and directed

modifications of the Core Committ ee plans, which resulted in

Plan Z2.

61. Petitioners alleged that the School Board failed to

obtain, provide to the Core Committee, or consider in proposed

adoption of Plan Z2 any enrollment or relevant data related to

affected feeder middle schools. Th is allegation is not

supported by the evidence. The Core Committee members received

relevant information on feeder middle schools.

62. Petitioners alleged that the School Board's rezoning

initiative is a result of alleged overcrowding in Seminole

County high schools. This allegation is not supported by the

evidence. Clearly, this rezoning was occasioned by the

necessity of populating a new high school, Hagerty.

63. Petitioners alleged that the School Board's policies

and procedures require that the Sch ool Board audit "School

Board" (sic) attendance in affected schools where rezoning is a

result of perceived "over - crowding." The evidence shows that

there is a constant flow of information regarding attendance.

In addition, individual high school princip als or their

designees, constantly monitor student populations in an effort

to assure that students attend the schools to which they are

zoned. Rezoning in this case was not the result of "over -

crowding," although the evidence clearly demonstrates that so me

Seminole County high schools are "over - crowded." The evidence

did not support the requirement for an audit because the

rezoning was not occasioned by "over - crowding," but by the need

to populate a new school.

64. Petitioners alleged that the School Bo ard failed to

conduct an audit of attendance at all affected schools prior to

adoption of the proposed rule. The evidence does not disclose

any requirement to "audit" enrollments during a rezoning which

is a result of the opening of a new school. Notwith standing the

lack of a required audit, the evidence clearly shows that

"auditing" is an on - going process within the Seminole County

school system.

65. Petitioners alleged that the School Board failed to

review or consider safety or traffic data relevant t o busing of

students created by Plan Z2 or any other suggested plan. The

School Board failed to investigate or determine safety risks of

transported children by failing to conduct transportation tests

and studies of current traffic situations along propos ed

transportation routes and failed to consider future safety and

transportation circumstances from planned road development and

construction along the affected transportation path. There is

no evidence that the School Board is required to do any of the

a ctivities suggested by this allegation. The evidence does show

that the School Board considered various bus routes. No

evidence was presented regarding "safety risks." The School

Board does have a standing committee (unrelated to rezoning)

made up of tr ansportation and safety professionals from Seminole

County governmental entities providing on - going counsel to the

School Board on transportation and safety matters.

66. Petitioners alleged that the School Board failed to

conduct a financial impact statem ent to ascertain the cost of

Plan Z2 busing on county transportation costs or the cost to

affected parents resulting from the additional distance and

costs of personal transportation to extracurricular activities.

There is no evidence that there is a lega l requirement for the

School Board to undertake a financial impact statement as

suggested by this allegation. In addition, there is no evidence

that there is any reasonable way to estimate such variables as

the "cost of personal transportation to extracur ricular

activities," or transportation costs when considering five

different rezoning plans.

67. Petitioners alleged that the School Board failed to

conduct an adequate economic impact statement considering the

costs of the proposed rezoning rule and fail ed to present such

impact statement to the affected public. There is no evidence

that there is a legal requirement for the School Board to

conduct and publish an economic impact statement as suggested by

this allegation .

68. Petitioners alleged that the proposed rule is

arbitrary and/or capricious in its development and

implementation. To the contrary, the evidence shows that

Plan Z2 was the deliberative result of the specific direction of

the School Board members, who, based on extensive knowledge and

understanding, determined that the Core Committee plans had

specific shortcomings, in particular, the "over - crowding" at

Lake Brantley High School, and a high percentage of free or

reduced - price lunches at Lyman High School. Responsive to the

direction of the School Board members, Superintendent Vogel,

through his staff which utilized the "work - product" of the Core

Committee, developed two additional plans. Superintendent

Vogel's recommendation of a plan which specifically addresses

noted deficiencies in the Core Committee plans and the School

Board's unanimous acceptance of that plan are circumspect and

prudent. Competent, substantial evidence supported the adoption

of Plan Z2.

69. Petitioners alleged that the School Board failed to

conduct an attendanc e audit to adequately verify attendance

records within the affected schools and, therefore, does not

have either a competent or substantial basis in fact supporting

the necessity of the School Board to rezone Lake Brantley High

School as a result of "over - crowding." The evidence clearly

shows that Lake Brantley High School is "over - crowded." Plan Z2

best addresses the over - crowding at Lake Brantley High School.

As previously mentioned, there is no requirement for an "audit."

However, school officials au dit on a continuous basis in an

attempt to make certain that students attend the school to which

they are assigned.

70. While Petitioners enumerated the foregoing specific

grounds for their objections, these grounds are not supported by

law or the evidenc e. As a result, Petitioners and Intervenor

have failed to meet the initial burden of establishing a factual

basis for their objections to Plan Z2. St. Johns River

Management Dist. V. Consolidated Tomoka Land Co. , 717 So. 2d 72,

76 (Fla. 5th DCA 1998).

71 . Assuming, arguendo , Petitioners and Intervenor had met

this initial burden and alleged a factual basis for invalidity,

as previously stated, Respondent has demonstrated by a

preponderance of the evidence that the proposed rule, Plan Z2 as

modified, is a valid exercise of legislative authority delegated

to it.

72. In paragraph 63 of the Second Amended Petition/Request

for Determination of Invalidity of Proposed Rule, Petitioners

specifically identify the subparagraphs of Subsection 120.52(8),

Florida Sta tutes (2004), upon which the allegation that

Respondent exceeded its delegated legislative authority is

predicated: (1) that the School Board exceeded its grant of

rule making authority; (2) the rule contravenes, modifies,

and/or enlarges the law implemen ted; and (3) is arbitrary and

capricious and is not supported by competent or substantial

evidence as to, including but not limited to, parameters such as

student enrollment, safety, and economic cost and impact. The

requirement that the rule "is not supp orted by competent

substantial evidence" is no longer a statutory requirement.

§ 120.52(8), Fla. Stat. (2004).

73. The evidence demonstrates that the School Board had

the authority to rezone schools and that the exercise of that

authority did not contra vene, modify or enlarge that authority.

74. Petitioners and Intervenor focused on their contention

that Policy J was not followed explicitly, and, therefore,

apparently, the result must be arbitrary and capricious. The

evidence, however, demonstrates tha t the policy and the

parameters of the policy were followed to the extent that

adherence was possible and appropriate. Further, Policy J must

be considered in conjunction with the Florida Constitution,

controlling Florida law, and other policy of the Scho ol Board.

The School Board's decision in adopting Plan Z2, as modified,

appears to have harmonized these various considerations. To the

extent reasonably possible, critical information was available

and used. The numerous considerations of an undertakin g of this

magnitude were given appropriate attention. The testimony of

the School Board members shows that the School Board members

found what they considered to be compelling reasons for

rejecting Plans W, Z, and Z1, and there is substantial,

competent e vidence supporting the adoption of Plan Z2, which

satisfied the School Board's concern with "over - crowding" and

racial and ethnic imbalance. The entire process evidences a

logical analysis of appropriate information and thoughtful

consideration of solutio ns, resulting in the adoption of

Plan Z2.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioners' Second Amended Petition/Request

for Determination of Invalidity of Proposed Rule is dismissed,

there being no e vidence that the proposed rule is an invalid

exercise of delegated legislative authority. Similarly,

Intervenor's Petition for Leave to Intervene is dismissed.

DONE AND ORDERED this 17th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of March, 2005.

COPIES FURNISHED :

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Alex Finch, Esquire

A ronsohn Law Group, LLP

280 South Ronald Reagan Boulevard, Suite 113

Longwood, Florida 32750

Maree Sneed, Esquire

Hogan & Hartson, LLP

555 - 13th Street, Northwest

Columbia Square

Washington, DC 20004

John Borkowski, Esquire

Hogan & Hartson, LLP

546 Car ondelet Street

New Orleans, Louisiana 70130

Damon A. Chase, Esquire

Chase Law Offices, P.A.

1009 East Highway 436

Altamonte Springs, Florida 32701

Scott Boyd, Executive Director/General Counsel

Joint Administrative Procedures Committee

120 Holland Bui lding

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Dr. Bill Vogel, Superintendent

Seminole County School Board

400 East Lake Mary Boul evard

Sanford, Florida 32773 - 7127

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rule s

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.