13-001148 Palm Beach County School Board vs. Excel Leadership Academy, Inc. Status: Closed Recommended Order on Thursday, June 6, 2013.

Summary: School board proved by clear and convincing evidence good cause for nonrenewal of charter due to declining enrollments, deteriorating finances, failing to implement IEPs, multiple failings in reading, and other deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 1148

EXCEL LEADERSHIP ACADEMY, INC.,

Respondent.

/

RECOMMENDED ORDER

O n May 13 - 17, 20 13, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings conducted the

final hearing in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Laura E. Pincus, Esquire

Bruce A. Harris, Esquir e

Office of the General Counsel

Palm Beach County School Board

3300 Forest Hill Boulevard, Suite C - 323

West Palm Beach, Florida 33406

For Respondent: Christopher Norwood

Qualified Representative

The Governance Issue for

School Accountability

14844 Breckness Place, Suite 100

Miami Lakes, Florida 33016

STATEMENT OF THE ISSUE

The issue is whether , as of June 30, 2013, Petitioner may

nonrenew Respondent's charter agreement (Charter) to operate a

charter school , pursuant to section 1002.33(8)(a)2. and 4.,

Florida Statutes.

PRELIMINARY STATEMENT

By letter dated March 14, 2013, from Petitioner to

Respondent, Petitio ner provided written notice of its intent not

to renew the C harter at the end of its term on June 30, 2013.

The letter also identifies the statutory and contractual grounds

on which Petitioner relies in declining to renew the C harter .

At the hear ing, this document was referred to as the "charging

document." This recommended order refers to an individual

charge as, for example, "Charge 2.a," meaning the charge

described under II.2.a below.

Paragraph II.1 of the March 14 letter alleges that

Respond ent has f ailed to comply with section 1002.33(2)(b)2. and

(7)(a)2.a, Florida Statutes, because Respondent's school lacks a

documented reading program or reading course.

Paragraph II.2 alleges that Respondent has failed to comply

with section 1002.33(7)(a)9 . or (8)(a)2 . because: a ) the

Financial Program Review found ten areas of noncompliance,

b) the external audit for fiscal year ending June 30, 2012,

determined that the school is in deteriorating financial

condition due to a general fund deficit of $38,05 7 and declining

enrollment, and c) the external auditor found five deficiencies,

one of which relates to board governance and is a repeat

deficiency for two fiscal years.

Paragraph II.3 alleges that Respondent has failed to comply

with C harter Section 3.0. A and section 1002.33(7)(a)2.a.

because: a) there is no evidence of a scientifically based

reading program and b) there is no reading course offered at the

school.

Paragraph II.4 alleges that Respondent has failed to comply

with C harter Section 3.0.B and section 1002.33(7)(a)2.a. because

there is no Intensive Reading for Level 1 and Level 2 students

and other remediation for other students reading below grade

level.

Paragraph II.5 alleges that Respondent has failed to comply

with Charter Section 3.0.D beca use it does not offer all core

academic courses to all of its students, and its instructional

staff consists of teachers certified only in exceptional student

education (ESE) and social studies.

Paragraph II.6 alleges that Respondent has failed to comply

w ith Charter Section 4.0.B and s ection 1002.33(7)(a)4. because:

a) of the 11 grounds cited for noncompliance in the Assessment

Renewal Program Review, b) the failure to administer an

Scholastic Reading Inventory ( SRI ) assessment in 2013 , c) the

absence of any recent Florida Assessments for Instruction in

Reading ( FAIR ) data, d) the absence of a science teacher at the

school and the consequent inability to enroll students needing a

science course , e) the failure to assess students in Windows 4

or 5 of the Pa lm Beach Writes Assessment period, f) the absence

of any evidence of reading dia gnostics, and g) the

nonparticipation of students in all District assessments. At

the hearing, Petitioner dropped Charge 6.e.

Paragraph II.7 alleges that Respondent has failed to comply

with Charter Section 4.0.F.5 because of the absence of any

evidence of students working toward 120 hours of employment or

job shadowing.

Paragraph II.8 alleges that Respondent has failed to comply

with Charter Section 4.0.F.8 due to the decline in enrollment.

Paragraph II.9 alleges that Respondent has failed to comply

with Charter Section 5.0.B because the curricula do not include

core academic subjects.

Paragraph II.10 alleges that Respondent has failed to

comply with Charter Section 5.0.C or se ction 1002.33(7)(a)14.

because current teachers are teaching out - of - field with no out -

of - field agreements. At the hearing, over objection of

Respondent, the Administrative Law Judge allowed Petitioner to

amend the citation to the Charter to Section 27.0.C .

Paragraph II.11 alleges that Respondent has failed to

comply with Charter Section 13.0.I because it is not providing

ESE services in accordance with students' individual education

plans (IEPs).

Paragraph II.12 alleges that Respondent has failed to

comply with Charter Section 13.0.J.4 or section 1002.33(7)(a)14.

because the school does not employ appropriate personnel to

provide ESE services.

Paragraph II.13 alleges that Respondent has failed to

comply with Charter Section 13.0.O or section 1002.33(7)(a)14 .

because the schoo l does not employ any English for Speakers of

Other Languages (ESOL) teachers.

Respondent timely requested a formal hearing, and

Petitioner transmitted the file to the Division of

Administrative Hearings (DOAH) for the purpose of conduct ing the

hearing. In its Petition for Hearing, Respondent raises an

affirmative defense. Respondent alleges that Petitioner failed

to provide assistance, as required by section 1002.33(20)(a),

Florida Statutes, and School Board Policy 2.57(10)(a).

On May 6, 2013, the parties filed a Joint Pre - Hearing

Stipulation, which is the source of certain of the facts found

below.

At the hearing, Petitioner called 11 witnesses and offered

into evidence Petitioner E xhibits 1, 3 - 7, 12, 15, 18 - 21, 24,

28 - 30, 37, 39, 41 - 4 4, 49 - 60, 63 - 65, 67, 71, and 73 - 76 .

Respondent called one witness and offered into evidence

Respondent E xhibits 4 - 6, 10 - 13 , 15 - 16 , and 18 - 19 . All exhibits

were admitted except the letter of November 9, 2012, to Ms.

Merced contained in Petitioner Exhibit 20; and Respondent

Exhibit s 6 and 12. Additionally, Respondent Exhibit 18 was not

admitted for the truth. The parties proffered all exhibits that

were excluded in whole or in part or admitted for limited

purposes .

The parties did not order a transcript. They filed

proposed recommended orders by May 29, 2013.

FINDING S OF FACT

1. Respondent operates a charter school pursuant to the

Charter, which was entered into in December 2008 by Petitioner,

as sponsor, and Life Skill s Center Palm Beach County, Inc .

E ffective June 30, 2012, Life Skills Center Palm Beach County,

Inc., changed its name to Excel Leadership Academy, Inc. At all

times, the corporation chartered to operate the school was a

Flo rida not - for - profit corporation, and Respondent has been a

nongra ded charter school with low - performing students.

2. The Charter expires June 30, 2013. Charter General

Provision G states that Petitioner may nonrenew the Charter "for

good cause."

3. On November 1, 2012, Petitioner's Charter School

Department met with representatives of Respondent to discuss an

upcoming renewal program review that Petitioner would undertake

in order to determine whether it should renew the Charter.

During the meeting, Petitioner's representatives went over the

review instrument that wo uld be used in conducting the renewal

program review.

4. In January 20 13 , an employee of Petit i oner with

financial expertise visited Respondent's school , examined

Respondent's financial records, and spoke with Respondent's

relevant representatives. In the same month, an employee of

Petit i oner with English - language - learner( ELL ) expertise visited

Respondent's school, examined Respondent's ELL records, and

spoke with Respondent's relevant re presentatives. In February

2013 , employees of Petitioner with aca demic expertise visited

Respondent's school, examined Respondent's academic records,,

and spoke with Respondent's relevant employees. As a result of

these examinations conducted as part of the renewal program

review, Petitioner found deficiencies and deci ded not to renew

the Charter.

5 . By letter dated February 27, 2013, Petitioner's

Superintendent informed Respondent of his intent to recommend to

the School Board, at its meeting on March 6, 2013, that it vote

to nonrenew the Charter. On March 6, the Sch ool Board met and

voted to approve the Superintendent's recommendation. By

Written Notice of Non - Renewal of Charter Contract dated

March 14, the School Board formally notified Respondent of the

nonrenewal of the Charter and itemized the grounds for this

action. This March 14 notification is the source of the

allegations contained in the Preliminary Statement, above.

6. Charter Section 1.0.C identifies the target group of

students to be served by Respondent as at - risk students, aged

16 - 21 years -- includin g ESE students, disabled students , ELL

students -- whose needs may be better served by a nontraditional

school given that the students may be unable to attend school

during a normal school day due to work requirements to support a

family, pregnancy, truancy, academic deficits, disruptive

behavior, or limited proficiency in English.

7. Charter Section 1.0.D recognizes that at - risk students

have different needs. Section 1.0.D states that Respondent will

employ an Employability Specialist to prepare the studen t s for

employment. Section 1.0.D also states that Respondent will

emphasize one - on - one instructional systems, and the curricula

will cover the "core academic subjects" of reading, language

arts, mathematics, social studies, and science, as well as

vocatio nal and social skills.

8. Charter Section 1.0.E identifies the mission of the

school as serving at - risk students by giving them a second

chance to obtain a quality education and employability training

and placement.

9. Charter Section 2.0.A projects tota l enrollment for

each of the five school years from 2008 - 09 through 2012 - 13 at

400 students in the ninth through twelfth grades to be included

in the school.

10. Addressing curriculum, Charter Section 3.0.A states:

[Respondent] agrees to ensure that readi ng

is a primary focus of the curriculum and

that resources are provided to identify and

provide specialized instruction for students

who are reading below grade level. The

curriculum and instructional strategies for

reading must be consistent with the Sun shine

State Standards and grounded in

scientifically based reading research.

11. Charter Section 3.0.D provides that Respondent "agrees

to implement an instructional program consistent with the

program as specified in the Student Progression Plan of

[Pet itioner] . . . ."

12. Charter Section 4.0.A states that Respondent is a

drop - out prevention and academic - intervention program . Section

4.0.B states: "[Respondent] will establish a systematic method

for assessing student progress using the District's Pup il

Progression Plan and performance at each grade using valid and

reliable procedures and following the requirements of the law

pursuant to Sections 1000.03 and 1008.431, F.S."

13. Section 4.0.B describes baseline and improvement

assessment as follows:

A baseline for student academic achievement

will be established upon enrollment in the

educational program. This baseline will be

established by analysis of results from the

standard assessment administered at the

school, previous FCAT scores, and an

electr onic assessment tool that measures

mastery of Sunshine State Standards in

language arts, reading, and math. . . .

Student improvement will be measured by

post - testing with the standard assessment

utilized at the [school] and FCAT scores.

In addition, st udents will be assessed by

nationally normed assessments (administered

twice each school year) that provide

information about student achievement.

Student improvement will also be measured on

a "value added" basis taking into account

the student's beginni ng achievement level

(baseline) and progress made through the

instructional year. Student progress will

be measured and monitored to ensure growth

occurs annually.

Nationally, norm - referenced tests will also

be particularly valuable to measure growth

of students who have previously passed the

criterion - referenced FCAT in tenth grade.

[Respondent] will continue to measure

academic growth for this population with

norm - referenced tests. Standards based

assessments as prescribed by the state

governing autho rity will be administered in

accordance with established state law.

14. Charter Section 4.0.F(5) provides that all graduates

will have completed at least 90 days or 120 hours of employment,

volunteering, job shadowing, or mentoring.

15. Charter Section 4.0.F(8) states that, each year,

Respondent shall increase its enrollment by the lesser of 20% or

100 students until it reaches facility capacity . Attainment of

"[t] his goal indicates that the program is working and building

a reputation within the commun ity for success."

16. Charter Section 5.0.B states that Respondent will

offer an individualized program for each student to progress at

his own pace using one - on - one instructional systems. Each

student will attend one school session, which consists of fo ur

hours of academic learning and one hour of vocational or job

readiness training. "Educational curriculum, resources, and

lessons can be delivered by teachers through a number of

teaching methodologies, utilizing those that best meet the

specific needs of the student."

17. Charter Section 5.0.C states: "Students will be

supervised by a Florida certified teacher or skilled

instructional personnel at all times from arrival at Charter

School to departure."

18. Charter Section 8.0.A. provides that the stu dents will

take "all applicable State Standardized tests consistent with

the sponsor's Student Progression Plan." Respondent is

responsible for administering the tests.

19. Charter Section 13.0.J states that Respondent will

provide ESE services as provid ed by each student's IEP. If a

parent chooses Respondent's school and it cannot implement the

student's IEP, prior to enrollment, the IEP team must meet,

revise the IEP, and determine how the IEP will be implemented at

Respondent's school; in the alternat ive, the IEP team may

determine another appropriate setting for the implementation of

the student's IEP. Section 13.0.J.4 provides that Respondent

must "hire an appropriate number of ESE certified teachers to

provide ESE services." Further, Respondent mu st notify

Petitioner "immediately" if "the certified ESE teacher is no

longer employed or providing services to ESE students as

required in their IEPs." Section 13.0.J.5 states: "A certified

ESE teacher must maintain written documentation of consultative

services for any student whose IEP indicates consultative

services."

20. Charter Section 13.0.O provides that students with

limited proficiency in English "will be served by ESOL - endorsed

personnel."

21. Charter Section 20.0.C provides that teachers sha ll be

Florida - certified as teachers, as required by chapter 1012,

Florida Statutes, and the No Child Left Behind Act of 2001.

However, Section 20.0.C allows Respondent to contract with

"skilled selected non - certificated" personnel "to provide

instructiona l services in the individual's field of specialty or

to assist instructional members as paraprofessionals in the same

manner as defined by Chapter 1012, F.S., and as provided by the

State Board of Education Rule for Charter School Governing

Boards."

22. T he two most prominent deficiencies are facts to which

Respondent stipulated. Its enrollment is declining, and its

financial condition is deteriorating due to a general fund

deficit. These facts are linked.

23. Respondent attributes its enrollment declin es to the

opening of another charter school, called Maverick s , near the

original location of Respondent's school. At its peak,

Respondent enrolled 378.5 students during the 2010 - 11 school

year. For the 2011 - 12 school year, Respondent's enrollment

decline d by 206.5 students to 172 students. For the 2012 - 13

school year, Respondent's e nrollment declined by another 93

students to only 79 students.

24. Not surprisingly, given the extent to which

enrollments drive revenues at schools, Respondent's financial

c ondition is, at best, grave and, at worse, moribund. For

fiscal year ending June 30, 2012, Respondent's auditor

determined that Respondent maintained a general fund deficit of

$38,057. It is clear from more detailed information in the

financial report th at the auditor overstated the deficit, which

was actually $25,027, but this, too, is a material deficit.

25. The materiality of the deficit, as well as the rapid

rate of Respondent's financial deterioration, is revealed by the

facts that, for fiscal year ending 2012, Respondent's expenses

exceeded its revenues by $162,039 -- roughly, an order of

magnitude greater than the excess of expenses over revenues by

$17,771 for fiscal year ending 2011.

26. Respondent's liabilities of $155,008 exceed its assets

of $1 46,129 by $8879, as of June 30, 2012. The link between

declining enrollment and financial deterioration is confirmed by

the auditor's finding that Respondent's enrollment shortfall, as

compared to its projections, resulted in the failure to earn

$1.4 mill ion in revenues.

27. During the 2012 - 13 school year, Respondent has

implemented drastic meas ures to try to control expenses . During

this school year, Respondent terminated its management contract,

moved the school to a smaller facility with lower occupan cy

costs, and, as noted below, cut labor expenses by not replacing

instructional employees.

28. In themselves, cost - cutting measures would seem to

slow the rate of financial deterioration, although the reduction

in capital and operational expenses may a s likely be met by an

equal or greater reduction in revenues, as market forces drive

potential students to more successful charter schools. On this

record, Respondent's revenues and expenditures appear to be

declining in tandem, as Respondent's operations wind down and

Respondent approaches financial collapse.

29. Petitioner has thus proved Charges 2.b and 8.

30. Greatly exacerbating the situation , Respondent's

serious operational deficiencies, which violate material

provisions of the Charter, could on ly be eliminated by

signifi cant increases in expenditures. For example, since

sometime in November 2012 , Respondent operated with only two

instructional employees: a teacher certified in social science

and a teacher certified in ESE , Ms. Kangal . During this period

of time, each teacher was required to perform the lead - teaching

duties in the classes that Respondent was still able to offer.

31. However, d uring this period of time, numerous students

attending the school had IEPs whose implementation requ ired ESE

consultative services in the form of support facilitation . For

these students, a lead teacher must provide regular instruction

to the class, and the ESE teacher must simultaneously provide

specialized instruction to the ESE students whose IEP cal led for

consultative services in the form of support facilitation . This

exposure to regular instruction with supplemental specialized

instruction is critically important to the se ESE students; yet,

for several months, Respondent was unable to implement th is

provision of these IEPs , nor any other IEPs that called for

direct specialized instruction . Failing to discharge its

obligations with respect to ESE instruction, Respondent also

failed to discharge its Charter obligation notify Petitioner of

the cessat ion of these ESE services.

32. Petitioner thus proved Charges 11 and 12.

33. At no time during the 2012 - 13 school year did

Respondent employ an ESOL - endorsed teacher. Although this

deficiency pales in comparison to the cessation of ESE services

for seve ral months , the failure to address the needs of ESOL

students is another serious deficiency.

34. Petitioner thus proved Charge 13.

35. The critical subject of reading is the focus of

multiple deficiencies. Respondent maintained no lesson plans in

read ing. The person whom Respondent identified as the reading

teacher, Ms. Kangal, is reading - endorsed, but is also the sole

ESE - certified teacher at the school. Ms. Kangal conceded to

Petitioner's representatives that she did not teach reading.

36. In re sponse to questions as to how reading was taught,

Respondent's principal, Ms. Kemp, replied that it was taught

across the curriculum and infused in all classes. But evidence

at the school did not support these ambitious claims. The

classrooms are bereft of such devices as word walls, curriculum -

based posters, books, study guides, or even textbooks.

37. Respondent's students included approximately 69 Level

1 and Level 2 readers, whose reading skills require intensive

remediation efforts, including enrollm ent in an intensive

reading class. Only three of these students three enrolled in

such a class.

38. Respondent's assessment of reading was deficient.

Respondent never obtained benchmark data from available

standardized tests at the start of the 2012 - 13 school year, so

that it could later measure growth in reading achievement by the

end of the school year. At no time did Respondent assess the

reading fluency of any of its students.

39. The record is not entirely clear as to whether

Respondent has adopte d Petitioner's reading plan. District data

reveals no such election, but Florida Department of Education

data reveals that Respondent has elected to implement

Petitioner's reading plan. If Respondent did not adopt

Petitio ner's reading plan, there is no e vidence that Respondent

had adopted any other reading plan, so the absence of a re a ding

plan would be a serious deficiency.

40. Respondent claims that it adopted Petitioner's reading

plan for the 2012 - 13 school year, as it had for the preceding

school y ear. Given the greater weight ordinarily attaching to

an affirmative indication as opposed to the absence of an

affirmative indication, it is more likely than not that

Respondent adopted Petitioner's reading plan for the 2012 - 13

school year. However, thi s reading plan requires FAIR and SRI

assessments throughout the school year, and Respondent did not

administer these tests, nor has it adopted alternative means of

obtaining the same data, which is necessary for any meaningful

implementation of Petitioner' s reading plan. Additionally,

there is no evidence that Respondent was implementing any

reading program whatsoever, even if it had adopted Respondent's

reading plan.

41. Petitioner thus proved Charges 1, 3.a, 3.b, 4, 6.b,

6.c, and 6.f.

42. A t the start of the 2012 - 13 school year, Respondent

employed four teachers: Ms. Shaheed, who is certified in

language arts and endorsed in reading; Mr. Innocent, who is

certified in math; Mr. Kyryliw , who is certified in social

science; and Ms. Kangal, who is describe d above. (A fifth

teacher, Mr. Ramos, had been hired to teach biology, but he quit

prior to the first day of school.) I n November 2012,

Ms. Shaheed and Mr. Innocent quit and were not replaced,

necessitating the removal of Ms. Kangal from her direct and

s upportive ESE instructional duties and her reassignment to

nearly all of the lead - teaching duties formerly handled by both

of the teachers who had just quit.

43. This reduction in instructional personnel by half

prior to the end of the first semester of the 2012 - 13 school

year prevented Respondent from providing instruction in all of

the core academic subjects. Clearly, biology , a required course

for graduation, was neglected. Belated attempts to enroll

Respondent's students in an online biology co urse , without any

live instructi onal support, were inadequate to address this

required subject because the online course is a demanding course

that is taught on grade level.

44. Math was also neglected . During the renewal program

review, one of Petitioner's representatives with expertise in

math visited a computer lab where students were apparently

working in A lgebra I, A lgebra II, and geometry . When the

representative engaged with one of the students, the student

asked if she could answer a question. She d id so, and the

student excitedly told one of his peers that this teacher knew

math and could help them.

45. Suggesting that the math lab may have been staged or,

if managed at all, managed incompetently , Petitioner's

representative noticed that, when Ms. Kangal returned to the

room after leaving the students to work on their own on the

computers , she handed out A lgebra I workbooks to all the

students, even to those who, online, had been workin g on A lgebra

II and geometry. If Ms. Kangal had even passing fa miliarity

with the workbooks, she would have noticed that they were to

prepare the students for the end - of - co urse A lgebra I exam -- a

total waste of time for those s tudents purportedly working on

A lgebra II and geometry a few minutes earlier.

46. Petitioner thus proved Charges 5 , 6.d, and 9.

47. With even less cause, in terms of cost savings,

Respondent has abandoned its undertaking in the Charter to

ensure that all of its students perform 90 days or 120 hours of

employment, volunteering, job shadowing, or mentoring.

Respondent kept no log of any time spent on these important

vocational - preparation activities, nor did Respondent have any

agreements with employers to help its students meet this

requirement.

48. Petitioner thus proved Charge 7.

49. The abov e - detailed deficiencies involving declining

student enrollment, deteriorating finances, failing to implement

ESE students' IEPs, failing to provide an ESOL - endorsed teacher,

multiple failings in providing reading instruction, and failing

to provide biology and math instruction provide ample good cause

for the nonrenewal of the Charter ; it is unnecessary to consider

the remaining charges . As noted above, Respon dent's enrollment

has plunged 75 % in two school years, and its enrollment - driven

revenues are like wise in steep decline. These facts, alone, are

good cause for nonrenewal.

50. Worse, Respondent is failing even to address the most

basic needs of its ESE students for specialized instruction,

nearly all of its dwindling student population for intensiv e

reading instruction, its ESOL students for language issues, its

many students seeking to recover the credits necessary for

graduation in terms of basic math and biology courses.

51. In the face of these factors driving it to

nonoperational status, Resp ondent has offered no semblance of an

educational/financial /marketing plan . Instead, Respondent

feebly has tried to transfer the blame for its current situation

from itself, where it belongs, to Petitioner. But Respondent's

affirmative defense of inadequ ate assistance from Petitioner

fails on two grounds. First, the evidence does not support this

claim. Petitioner made available to Respondent the same

training and technical assistance that it made available to

other schools -- charter and noncharter. Sec ond, as to the above -

detailed deficiencies, Respondent's failures do not appear to

have been of a type that additional techni c al assistance would

have helped. Respondent failed in its most basic duties to

educate its students. Failing even to discharge i ts duty to

notify Petitioner of critical changes, such as the cessation of

ESE services and loss of teachers, Respondent's complaints that

Petitioner failed to help are disingenuous.

CONCLUSIONS OF LAW

52 . DOAH has jurisdic tion of the subject matter.

§ § 120.569, 120.57(1), and 1002.33(8)(b)2.

53 . Even though this case is couched in terms of a

proposed nonrenewal of a charter contract, the burden of proof

is on Petitioner. Dubin v. Dep't of Bus. Reg. , 262 So. 2d 273,

274 (Fla. 1st DCA 1972) (" refusal t o renew a license to a person

who has once demonstrated that he possesses the statutory

prerequisites to licensure cannot be used as a substitute for a

license revocation proceeding "); Vocelle v. Riddell , 119 So. 2d

809 (Fla. 2d DCA 1960) (same).

54 . Addi tionally, the standard of proof is clear and

convincing evidence. Dep't of Bank. & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996) (license revocation) . In Coke

v. Dep't of Child. & Family Services , 704 So. 2d 726 (Fla. 5th

DCA 1998), the licensi ng agency conceded that, when declining to

renew a day care license, it bore the burden of proving the

material allegations by clear and convincing evidence.

55 . Section 1002.33 provides:

* * *

(2) (b) Charter schools shall fu lfill the

following purposes:

* * *

2 . Increase learning opportunities

for all students, with special emphasis on

low - performing students and reading.

* * *

(7)(a) The charter shall addres s and

criteria for approval of the charter shall

be based on:

* * *

2. The focus of the curriculum, the

instructional methods to be used, any

distinctive instructional techniques to be

employed, and identification and acquisition

of appropriate technologies needed to

improve educational and administrative

performance which include a means for

promoting safe, ethical, and appropriate

uses of technology which comply with legal

and professional standards.

a. The charter shall ensure that

reading is a primary focus of the curriculum

and that resources are provided to identify

and provide specialized instruction for

students who are reading below grade level.

The curriculum and instructional strategies

for reading must be consistent with the

Sunshine State Standards and grounded in

scientifically based reading research.

* * *

4. The methods used to identify the

educational strengths and needs of students

and how well educational goals and

performance standards are met by students

attending the charter school. The methods

shall provide a means for the charter school

to ensure accountability to its constituents

by analyzing student performance data and by

evaluating the effectivene ss and efficiency

of its major educational programs. Students

in charter schools shall, at a minimum,

participate in the statewide assessment

program created under s. 1008.22.

* * *

9. The financial and administrativ e

management of the school, including a

reasonable demonstration of the professional

experience or competence of those

individuals or organizations applying to

operate the charter school or those hired or

retained to perform such professional

services and the description of clearly

delineated responsibilities and the policies

and practices needed to effectively manage

the charter school. A description of

internal audit procedures and establishment

of controls to ensure that financial

resources are properly managed must be

included. Both public sector and private

sector professional experience shall be

equally valid in such a consideration.

* * *

14. The qualifications to be required

of the teachers and the potential str ategies

used to recruit, hire, train, and retain

qualified staff to achieve best value.

* * *

(8)(a) The sponsor may choose not to renew

or may terminate the charter for any of the

following grounds:

* * *

2. Failure to meet generally

accepted standa rds of fiscal management.

* * *

4. Other good cause shown.

(b) At least 90 days prior to renewing

or terminating a charter, the sponsor shall

notify the governing board of the school of

the proposed action in writing. The notice

shall state in reasonable detail the grounds

for the proposed action and stipulate that

the schoolÓs governing board may, within 14

calenda r days after receiving the notice,

request a hearing. . . .

* * *

(20)(a)1. A sponsor shall provide certain

administrative and educational services to

charter schools. These services shall

include contract management servi ces; full -

time equivalent and data reporting services;

exceptional student education administration

services; services related to eligibility

and reporting duties required to ensure that

school lunch services under the federal

lunch program, consistent wit h the needs of

the charter school, are provided by the

school district at the request of the

charter school, that any funds due to the

charter school under the federal lunch

program be paid to the charter school as

soon as the charter school begins serving

food under the federal lunch program, and

that the charter school is paid at the same

time and in the same manner under the

federal lunch program as other public

schools serviced by the sponsor or the

school district; test administration

services, includi ng payment of the costs of

state - required or district - required student

assessments; processing of teacher

certificate data services; and information

services, including equal access to student

information systems that are used by public

schools in the dist rict in which the charter

school is located. Student performance data

for each student in a charter school,

including, but not limited to, FCAT scores,

standardized test scores, previous public

school student report cards, and student

performance measures , shall be provided by

the sponsor to a charter school in the same

manner provided to other public schools in

the district.

56 . School Board Policy 2.57(10)(a) states:

The District will provide reasonable

technical assistance to assist students at

low - p erforming graded charter schools as

well as non - graded charter schools with low -

performing students. The technical

assistance shall be made available to cure

deficiencies and remediate academic concerns

of students. Failure by a charter school to

coopera te in the resolution of such

performance issues may constitute good cause

for non - renewal or termination of a charter

contract.

57. Petitioner has proved by clear and convincing evidence

good cause for the nonrenewal of the Charter. It has discharged

it s undertakings to assist Respondent. Unfortunately,

Respondent has not discharged many of its core obligations und er

the Charter. As Respondent's operations have winded down over

the course of the past two school years, but especially the

2012 - 13 school year, the regulatory action of nonrenewal merely

f ollows the lead of the market .

RECOMMENDATION

I t is RECOMMENDED that the Palm Beach County School Board

enter a final order declining to renew the Charter.

DONE AND ENTERED this 6th day of June, 2013 , in

Ta llahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 6th day of June, 2013 .

COPIES FURNISHED :

Christopher Norwood, Qualified Representative

Governance Institute for School Accountability

14844 Breckness Place , Suite 100

Miami Lakes, Flori da 33016

Bruce A. Harris, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

E. Wayne Gent, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard, C - 316

West Palm Beach, Florida 334 06 - 5869

Dr. Tony Bennett , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

32 5 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 b e filed with the agency that

will issue the Final Orde r in this case.