14-004045RU Renaissance Charter School, Inc., And Renaissance Charter School At Tradition vs. St. Lucie County School Board Status: Closed DOAH Final Order on Tuesday, June 30, 2015.

Summary: Charter school is not required to offer regular school busing to all students residing more than two miles from the charter school, and Charter School did not breach its charter or violate Florida law by failing to offer such school busing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENAISSANCE CHARTER SCHOOL,

INC., AND RENAISSANCE CHARTER

SCHOOL AT TRADITION,

Petitioners,

vs. Case Nos . 14 - 3267

14 - 4045RU

ST. LUCIE COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

FINAL ORDER

These cases came before Administrative Law Judge Darren A.

Schwartz for final hearing on February 2 and 3, 2015, in Fort

Pierce, Florida.

APPEARANCES

For Petitioner s : Stephanie Alexander, Esquire

Reid A. Cocalis, Esquire

Tripp Scott, P.A.

Suite 216

200 West College Avenue

Tallahassee, Florida 3 2301

W illiam E. Williams, Esquire

Gray Robinson, P.A.

Suite 600

301 South Bronough Street

Tallahassee, Florida 32302

For Respondent: Barbara Lee Sadaka, Esquire

St . Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

Elizabeth Coke, Esquire

Richeson and Coke, P.A.

Post Office Box 4 048

Fort Pierce, Florida 34948

STATEMENT OF THE ISSUE S

1) Whether Petitioners, Renaissance Charter School, Inc. ,

and Renaissance Charter School at Tradition, can be required by

the St. Lucie County School Boar d ( " School Board " ) to offer

regular school busing to all eligible c harter school students

residing more than two miles from the charter school.

2) Whether Petitioner, Renaissance Charter School at

Tradition, breached its contract with the School Board b y not

providing transportation to students in accord with the parties '

charter school contract and Florida Statutes.

3 ) Whether School Board Policies 3.90 and 8.31 constitute

an invalid exercise of delegated legislative authority.

4 ) Whether the School B oard has charter busing policies

which amount to illegal, unadopted rules under c hapter 120,

Florida Statutes (2014) .

PRELIMINARY STATEMENT

On July 14, 2014, Petitioners, Renaissance Charter School,

Inc., and Renaissance Charter School at Tradition (referr ed to

collectively as Petitioners or by their individual names),

pursuant to section 1002.33(6)(h), Florida Statutes (2014), filed

with the Division of Administrative Hearings ( " DOAH " ) , a

Notice/Request of Initiation of Proceedings. T his matter ( DOAH

Case No. 14 - 3267 ) was assigned to the undersigned to conduct the

final hearing . In Case No. 14 - 3267, Petitioners contest the

authority of the School Board to require that Petitioners offer

regular school busing to all eligible students residing more than

two miles walking distance from the charter school.

On August 6, 2014, the School Board filed an answer and

counter - petition with DOAH . In its counter - petition filed

pursuant to section 1002.33(6)(h) , the School Board asserts that

Renaissance Charter School a t Tradition breached its charter

contract with the School Board and violated Florida Statutes by

refusing to offer regular school busing to all students residing

more than two miles from the charter school.

On August 26, 2014, Petitioners filed a petition with DOAH

pursuant to section s 120.54 and 120.56 . This matter (DOAH Case

No. 14 - 4045RU ) was also assigned to the undersigned to conduct

the final hearing . In Case No. 14 - 4045RU, Petitioners assert

that the School Board has an unadopted rule which require s

regular school busing of all charter school students in St. Lucie

County residing more than two miles from their school.

Petitioners further assert the School Board 's adopted

transportation rules ( School Board Polic ies 3.90 and 8.31)

constitute an inval id exercise of delegated legislative

authority .

On September 11, 2014, the undersigned entered an order

consolidating Case Nos. 14 - 3267 and 14 - 4045RU. On December 29,

2014, Petitioners filed an amended petition in Case No. 14 -

4045RU.

The final hearing com menced as scheduled on February 2

and 3, 2015, following two continuances and the undersigned ' s

orders denying the parties ' cross - motions for summary final

order. Prior to the final hearing, the undersigned granted

Petitioners ' first and second requests f or judicial recognition

of section 1002.33 and School Board Policy 3.90. The undersigned

denied Petitioners ' t hird, fourth, fifth, sixth, and seventh

requests for judicial recognition.

At the hearing, Petitioners presented the in - person

testimony of Derek Kelmanson, Richard Page, Stacy Schmit, and

Kathleen McGinn . Petitioners ' Exhibits 1 through 5, 8 through

12, 15 through 18, and 20 through 23 were received into evidence.

The School Board presented the in - person testimony of Kathleen

McGinn, K.W., L.H.H ., and Marvin Sanders. The School Board ' s

Exhibits 1, 6 through 9, 11 through 16, 18, 21 through 24, 26

through 37, and 39 through 41 were received into evidence. In

addition, the parties agreed that the deposition of Kenneth Haiko

would be received into evidence in lieu of his live testimony

because he was unavailable for the final hearing. The deposition

of Adam Miller (along with Exhibits 1 through 7 attached to the

deposition) was also received into evidence in lieu of his live

testimony because he w as unavailable for the final hearing.

At the hearing, the undersigned granted the parties ' request

that p roposed final orders be filed within 20 days after the

filing of the final hearing transcript. The two - volume final

hearing Transcript was filed on March 2, 2015.

Following the hearing, the undersigned granted the parties '

multiple requests to extend the deadline for the filing of their

proposed final orders. On May 26 , 2015, t he parties timely filed

their proposed final orders, which were given con sideration in

the preparation of this Final Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 Florida Statutes.

The Parties ' Joint Prehearing Stipulation has been

incorporated in to this Final Order to the extent releva nt.

FINDING S OF FACT

The Parties

1. Renaissance Charter School, Inc. , is a not - for - profit

Florida corporation.

2. Renaissance Charter School, Inc. , currently owns and

operates two charter schools in St. Lucie County: Renaissance

Charter School at Tradit ion and Renaissance Charter School at

St. Lucie .

3. The School Board is t he " sponsor " of Renaissance Charter

School at Tradition w ithin the meaning of the charter school

statute, section 1002.33.

The School Board ' s Approval of Renaissance Charter School at

Tradition ' s Charter Application and Charter Contract

4 . On August 1, 2012, a charter school application was

submitted to the School Board by Renaissance Charter School,

Inc., on behalf of Renaissance Charter School at Tradition .

5 . During the chart er application and approval process, the

School Board consistently contended that charter schools in

St. Lucie County are required by law to offer regular school

busing to all eligible students resid ing more than two miles from

the ir charter school. 1/

6 . On September 1 7 , 2012, t he School Board ' s Charter School

Evaluation Team recommended approval of the Renaissance Charter

School at Tradition charter school application , subject to the

charter school providing " a viable transportation plan that meets

statut ory requirements once a school site has been finalized. "

7 . On May 14, 2013, the School Board, at a regular board

meeting, unanimously approved its charter contract with

Renaissance Charter School, Inc., for Renaissance Charter School

at Tradition .

8 . Th e Renaissance Charter School at Tradition charter

contract became effective upon approval by the School Board at

its May 14, 2013, meeting. The term of the charter contract is

five years, commencing on the first day of the 2013 - 2014 school

year, and endin g on June 30, 2018.

9 . The School Board and Renaissance Charter School at

Tradition have a valid and binding charter school contract that

is still in full force and effect.

Applicable Transportation Provisions of Renaissance Charter

School at Tradition ' s Charter Contract

1 0 . Section 6 of the charter contract between the School

Board and Renaissance Charter School at Tradition , which governs

student transportation, provides as follows:

SECTION 6: TRANSPORTATION

A) Cooperation Between Sponsor and Sc hool:

The School shall provide transportation to

the School ' s students consistent with the

requirements of Part I.E. of Chapter 1006,

and Section 1012.45, F.S. The School may

contract with the Sponsor to provide

transportation service.

B) Reasonable D istance: Transportation will

not be a barrier to equal access for all

students residing within the District, and

the School shall provide transportation to

all students residing in the District subject

to the limitations in this Section 6.B.

Students res iding within two miles of the

school will be expected to furnish their own

transportation, except that certain students,

as specified in Section 1006.21, F.S., for

example students with disabilities and

elementary grade students who are subject to

specifie d hazardous walking conditions, must

be provided transportation, regardless of the

distance from the school. For students who

are geographically isolated, or who are

unable to be transported on a school bus due

to disabilities, the School will offer

reimb ursement to eligible parents residing

within the District. This parental

reimbursement shall be equivalent to the

monies provided by the Sponsor to the School

for transportation of the student. A t the

time of student application for enrollment,

the Schoo l shall be responsible for informing

parents of the transportation options

available, including the reimbursement amount

available in lieu of provided transportation

to qualifying students.

C) Compliance with Safety Requirements: The

School shall demons trate compliance with all

applicable transportation safety

requirements. Unless it contracts with the

Sponsor for the provision of student

transportation, the School is required to

ensure that each school bus transporting the

School ' s students meets appli cable federal

motor vehicle safety standards and other

specifications. The School agrees to monitor

the status of the commercial drivers '

licenses of each school bus driver employed

or hired by the School (hereafter " School Bus

Drive r s " ) unless it contrac ts with Sponsor to

provide such services. The School will

provide the Sponsor, via the Charter Schools

Support Department, an updated list each

quarter of all School Bus Drivers providing

commercial driver ' s license numbers, current

license status and lic ense expiration dates.

D) Fees: The School may not charge a fee

for transportation to which the student is

entitled pursuant to state law. The School

shall reimburse parents for parent - provided

transportation costs if the student is

legally entitled t o transportation.

E) Private Transportation Agreement: In the

event the School will be contracting with a

third party to provide transportation to its

students, the School shall provide a copy of

the transportation contract to the Sponsor at

least sixt y (60) days prior to the initial

day of classes.

F) Reimbursement for School Funded

Transportation: The rate of reimbursement to

the School by the Sponsor for transportation

will be equivalent to the reimbursement rate

provided by the State of Florida for all

eligible transported students.

1 1 . Section 1 B) 4) of the charter contract further

provides:

4) Statutory Requirements: The Parties will

comply with Section 1002.33, F.S., and any

regulations adopted by the State Board of

Education or other state agency, or

amendments thereto, pertaining to charter

schools, and all applicable federal, state

and local laws pertaining to civil rights and

student health, safety and welfare. If any

conflict exists between the provisions of the

approved applicat ion or this Charter and any

specific provision of law, then the

provisions of the law shall prevail. The

School shall be bound by amendments to

applicable statutes, rules, and regulation,

as any such amendments take effect. Unless

specifically incorporat ed herein, the

policies of the S ponsor do not apply to the

School. However, if the School is

statutorily required to have a policy and

does not, the Sponsor ' s policy shall be

deemed to apply.

Students of Renaissance Charter School at Tradition and the

S chool ' s Transportation Policy

1 2 . For a student to attend Renaissance Charter School at

Tradition, their parents must apply during an open enrollment

period , and a lottery system is used to determine who may attend.

1 3 . Parents whose child is selected t hrough the lottery to

attend Renaissance Charter School at Tradition are given a

certain number of days to accept or decline the seat. Then the

process starts over again until all seats are filled or there are

no other students on the list.

1 4 . Renaissa nce Charter School at Tradition opened for the

2013 - 2014 school year as a K - 6 school with 695 enrolled students.

Projected enrollment for the 2013 - 2014 school year was 661

students. However, before the 2013 - 2014 school year began,

projected enrollment ha d increased to 745 students.

1 5 . Renaissance Charter School at Tradition opened for the

2014 - 2015 school year as a K - 7 school with 890 enrolled students

and an enrollment cap of 945 students.

1 6 . For the 2015 - 2016 school year, Renaissance Charter

School at Tradition plans to open as a K - 8 school with projected

enrollment of 1,075 students.

1 7 . For the 2016 - 2017 school year, Renaissance Charter

School at Tradition plans to open as a K - 8 school at maximum

capacity of 1,145 enrolled students.

1 8 . The on ly " A " graded schools in St. Lucie County,

Florida , for the 2013 - 2014 school year were Renaissance Charter

School at Tradition and Renaissance Charter School at St. Lucie.

19 . There is a waiting list for grades K - 3 at Renaissance

Charter School at Tradit ion.

2 0 . P arents of students enrolled at Renaissance Charter

School at Tradition recognize that Renaissance Charter School at

Tradition provides their children with a unique educational

opportunity.

2 1 . Parents of students enrolled at Renaissance Chart er

School at Tradition recognize that the decision to enrol l their

children at Renaissance Charter School at Tradition is a personal

choice and not a privilege.

2 2 . Parents of students enrolled at Renaissance Charter

School at Tradition are active partner s in the education of their

children.

2 3 . Renaissance Charter School at Tradition does not

provide regular school busing to its students who reside more

than two miles from the charter school .

2 4 . Renaissance Charter School at Tradition re - evaluates

its transportation policies on a yearly basis.

2 5 . Parents of students are informed that Renaissance

Charter School at Tradition does not offer regular school busing

in informational meetings before they apply for their child to

attend the school.

2 6 . P arent s of students enrolled at Renaissance Charter

School at Tradition sign a " Parent Obligation Form, "

contractually obligat ing themselves " [t]o provide transportation

to and from the school for my child. "

2 7 . Parents are required to sign the " Parent Obligati on

Form " every year as part of the enrollment process.

2 8 . The transportation p olicy of Renaissance Charter School

at Tradition , which is given to all parents upon enrollment,

apprises parents that the school does not offer regular school

busing to studen ts, but that the school agrees to provide

" transportation or an equivalent reimbursement " to student s in

c ertain legally - defined circumstances.

29 . The transportation p olicy of Renaissance Charter School

at Tradition provides as follows :

Student Transport ation Policy

Renaissance Charter School at Tradition ' s

[sic], is and always has been, fully

committed to ensuring that transportation

will not be a barrier to equal access for all

students residing within the District. To

date, there are more students att ending our

newly - opened charter school than was

projected for our first year.

Although our school does not presently offer

busing as a means of school transportation,

we are in the process of helping put together

parent carpools for those parents who want

their children to share rides to and from

school.

Moreover, transportation, or an equivalent

reimbursement, will be provided to any

student who falls under any of the following

categories [taken from Florida State Statute

1006.21]:

1. Any student in gr ades K - 8 who does not

otherwise have access to an adequate

educational facility or opportunity.

2. Any student in grades K - 6 who are

subjected to a hazardous walking condition as

defined in s. 1006.23 while en route to or

from school.

3. Any student in grades K - 8 who have a

documented transportation need in their IEP.

4. Any student in grades K - 8 who are

pregnant, student parents, and/or the

children of these students if a teenage

parent program is presented at the school.

If you feel your child fall s within one of

the categories listed above, please notify

the front office and we will work with you on

a case - by - case basis.

3 0 . The School Board rejected the transportation p olicy of

Renaissance Charter School at Tradition because it d oes not

provide for the regular school busing of all students residing

more than two miles from the charter school.

3 1 . Renaissance Charter School at Tradition ' s failure to

provide regular bus transportation to all students residing more

than two miles from the charter school does not constitute a

barrier to equal access to all students.

3 2 . At the hea ring, no credible and persuasive evidence was

presented that any students lack equal access to an adequate

educational facility or opportunity. No evidence was presented

that any students are subject to hazardous walking conditions

while e n route to or from the charter school.

3 3 . There is one student who enrolled on January 20, 2015,

who has a transportation need documented in their individual

education plan , but the chi ld ' s parent has chosen to provide

transportation. No evidence was presented of any students who

are pregnant or who have given birth to any children.

3 4 . Renaissance Charter School at Tradition opens at

6:00 a.m . and closes at 6:00 p.m. There are before - and - after -

care private buses that take students off - site to other

organizations, such as to karate and the Boys and Girls Clubs.

3 5 . Renaissance Charter School at Tradition also encourages

parents ' use of carpooling their children to and from school.

Th e School Board ' s position is that carpooling is not a viable

transportation option for the charter school .

3 6 . At Renaissance Charter School at Tradition, one parent

has decided to run a private busing service, but no other parents

have chosen to use the services of that private bus. 2/

The Charter Contract and Transportation Policy Do Not

Require Petitioners t o Transport b y Regular School Bus All

Students Residing More Than Two Miles From t he Charter

School

3 7 . The parties ' dispute centers on whether the School

Board can require Renaissance Charter School at Tradition to

offer regular school bus transportation, to and from the school,

for all students residing more than two miles from the school.

The interests of Petitioners are directly and substantiall y

affected by the School Board ' s attempt to require that

Petitioners transport by regular school bus all students residing

more than two miles from the charter school.

38 . The parties unsuccessfully mediated their dispute

before the Florida Department of Education.

39 . The persuasive and credible evidence adduced at hearing

demonstrates that Renaissance Charter School at Tradition has not

breached its charter contract with the School Board by not

providing regular school busing to all students resid ing m ore

than two miles from the charter school.

40 . The charter school contract between the School Board

and Renaissance Charter School at Tradition does not require

Renaissance Charter School at Tradition to provide regular school

busing to all students res id ing more than two miles from the

charter school. 3 /

41 . Renaissance Charter School at Tradition ' s

transportation policy is consistent with its charter contract

with the School Board.

The School Board ' s Inequitable Treatment of Charter Schools

4 2 . The persuasive and credible evidence adduced at hearing

demonstrates that the School Board ' s treatment of Petitioners is

inequitable.

4 3 . The School Board has a " no transportation zone, " which

geographically encompasses approximately one - third of the county .

Students of traditional public schools residing in the " no

transportation zone " are not provided regular school bus

transportation to and from school.

4 4 . The School Board also has a " limited transportation

zone. " Students of traditional public scho ols residing in the

" limited transportation zone " are provided regular school bus

transportation, but only if they attend a school located within

the " limited transportation zone. "

4 5 . The " no transportation zone " and " limited

transportation zone " encomp ass approximately one - half of

St. Lucie County.

4 6 . At the hearing, the School Board conceded that it has

different policies for the transportation of traditional public

school students and students at magnet schools and attractor

schools.

4 7 . The Scho ol Board encourages the use of carpools for

students of traditional public schools.

The School Board ' s Alleged Unadopted Policy

4 8 . The School Board, in paragraph 20 of its counter -

petition filed in Case No. 14 - 3267, specifically states: " The

School Dist rict ' s adopted policy is that students who live more

than two miles from their assigned school shall be provided

school bus transportation. " ( e mphasis added).

49 . T he persuasive and credible evidence adduced at hearing

demonstrates that the School Board interprets Florida law and its

adopted School Board Policies 3.90 and 8.31 to require that all

existing and future charter schools within the county provide

regular school bus transportation for all students residing more

than two miles from the charter sc hool. The persuasive and

credible evidence adduced at hearing demonstrates that the School

Board does not have an unadopted policy that all charter schools

within the county must provide regular school busing to all

students resid ing more than two miles f rom the ir charter school.

The School Board ' s Adopted Policies

5 0 . The School Board has two adopted policies, School Board

Policy 3.90 (dealing with charter schools) and School Board

Policy 8.31 (dealing with student transportation). The interests

of Peti tioner are directly and substantially affected by these

policies. 4/

5 1 . Both School Board Policies 3.90 and 8.31 were properly

noticed pursuant to c hapter 120, Florida Statutes .

5 2 . Neither School Board Policy 3.90 nor 8.31 is

specifically incorporated i nto the charter agreement between the

School Board and Renaissance Charter School at Tradition.

5 3 . Moreover, according to the School Board, School Board

Policy 8.31 a ppl ies only in the absence of a viable charter

school transportation policy.

5 4 . The pe rsuasive and credible evidence adduced at hearing

fails to demonstrate that the School Board and Renaissance

Charter School at Tradition mutually agreed that School Board

Policy 3.90 , or 8.31 , apply to the charter school.

CONCLUSIONS OF LAW

Jurisdiction an d General Legal Principles Governing Charter

Schools

5 5 . DOAH has jurisdiction to hear these consolidated cases

pursuant to sections 120.54(1)(a), 120.56(3) and (4), 120.569,

120.57(1), and 1002.33(6)(h), Florida Statutes.

5 6 . In Florida, charter school s are nonsectarian public

schools that operate pursuant to a charter contract with a public

sponsor, in this case a school board. See § 1002.33(1), Fla.

Stat. ; Sch. Bd. v. Survivors Charter Sch., Inc. , 3 So. 3d 1220,

1227 (Fla. 2009). All charter schools in Florida are public

schools. Id.

5 7 . Flexibility and parental choice are at the heart of

the charter school statute. The Florida statute governing

charter schools ( c hapter 1002) is titled : " STUDENT AND PARENTAL

RIGHTS AND EDUCATIONAL CHOICES. " One of the statutorily

recognized guiding principles for charter schools is that they

" provide[] parents with the flexibility to choose among diverse

educational opportunities within the state ' s public schools

system. " § 1002.33(2), Fla. Stat. ; Sch. Bd. v. Su rvivors Charter

Sch., Inc. , 3 So. 3d at 1227. (emphasis added). A charter

school is open to any student residing in the school district in

which the charter school is located. § 1002.33(10)(a), Fla .

Stat.

The School Board Cannot Require Petitioners to T ransport b y

Regular School Bus All Charter School Students Residing More

Than Two Miles From the Charter School, and the Charter

School Did Not Breach Its Contract w ith the School Board by

Not Providing Transportation t o Its Students i n Accord w ith

the P ar ties ' Charter School Contract and Florida Statutes

58 . The parties agree that the undersigned has final order

authority to resolve their dispute in Case No. 14 - 3267 pursuant

to section 1002.33(6)(h), which provides , in pertinent part, as

follows:

The Dep artment of Education shall provide

mediation services for any dispute regarding

this section subsequent to the approval of a

charter application and for any dispute

relating to the approved charter, except

disputes regarding charter school application

deni als. If the Commissioner of Education

determines that the dispute cannot be settled

through mediation, the dispute may be

appealed to an administrative law judge

appointed by the Division of Administrative

Hearings. The administrative law judge has

final authority to rule on issues of

equitable treatment of the charter school as

a public school, whether proposed provisions

of the charter violate the intended

flexibility granted charter schools by

statute, or on any other matter regarding

this section exce pt a charter school

application denial, a charter termination, or

a charter nonrenewal and shall award the

prevailing party reasonable attorney ' s fees

and costs incurred to be paid by the losing

party. The costs of the administrative

hearing shall be paid by the party whom the

administrative law judge rules against.

59 . Because this " appeal " comes to the Administrative Law

Judge without a record, it was proper to conduct an evidentiary

hearing concerning the issues raised in Case No. 14 - 3267, to wit :

1) whether Petitioners can be required by the School Board to

offer regular busing to all charter school students residing more

than two miles from the charter school; and 2) whether

Renaissance Charter School at Tradition breached its contract

with the Scho ol Board by no t providing transportation to students

in accord with the parties ' Charter School Contract and Florida

Statutes.

60 . As to the first issue, Petitioners bear the burden to

demonstrate by a preponderance of the evidence that they are

entitle d to the relief requested. As to the second issue, the

School Board bears the burden to demonstrate by a preponderance

of the evidence that it is entitled to the relief requested.

§ 120.57(1)(j), Fla. Stat. ; Fla. Dep ' t of Transp. v. J.W.C.,

Inc. , 396 So. 2d 778, 781 (Fla. 1st DCA 1981). Section

1002.33(6)(h) does not contain an express appellate standard of

review or finding, or defer to a decision made by the sponsor.

As such, the scope of issues set out by the L egislature in

section 1002.33(6)(h) provi des for a de novo review by the

Administrative Law Judge. See Tampa Sch . Dev . Corp. v.

Hillsborough Cnty . Sch . Bd . , Case No. 11 - 2183 (Fla. DOAH Oct. 25,

2011) (Corrected Final Order ) .

6 1 . In the instant case, t he resolution of the parties '

dispute center s on statutory interpretation. S ection

1002.33(20)(c) specifically addresses a charter school ' s

obligation with regard to the transportation of its students:

Transportation of charter school students

shall be provided by the charter school

consistent with the requirements of subpart

I.E. of chapter 1006 and s. 1012.45. The

governing body of the charter school may

provide transportation through an agreement

or contract with the district school board, a

private provider, or parents. The charter

school and the sponsor shall cooperate in

making arrangements that ensure that

transportation is not a barrier to equal

access for all students residing within a

reasonable distance of the charter school as

determined in its charter.

6 2 . The undersigned ' s analysis must begin with the question

of whether this statute is clear and unambiguous. As recognized

by the First District Court of Appeal in Levey v. Detzner , 146

So. 3d 1224, 1225 (Fla. 1st DCA 2014):

Legislative intent is the polestar that

guides a court ' s in terpretation of a statute.

A court must endeavor to construe a statute

to effectuate the Legislature ' s intent. In

discerning legislative intent, a court must

look to the actual language used in the

statute. When a statute is clear and

unambiguous, a cou rt will not look behind the

statute ' s plain language for legislative

intent or resort to rules of statutory

construction to ascertain intent. It is not

the prerogative of a court to construe an

unambiguous statute differently from the

plain language of th e words employed, nor is

the wisdom of the statute within the ambit of

the court ' s authority.

Levey , 146 So. 3d at 1225 (citations omitted).

6 3 . The disjunctive effect of the word " or " may be helpful

in determining the plain meaning of a statute. Zucke rman v.

Alter , 615 So. 2d 661, 663 (Fla. 1993) .

6 4 . Section 1002.33(20)(c) is clear and unambiguous. This

subsection provides the mode of how transportation may be

provided by a charter school for its students. " The governing

body of the charter school may provide transportation through an

agreement or contract with the district school board, a private

provider, or parents. " The express terms and plain language of

the statute , especially the use of the word " through, " and the

disjunctive effect of the p hrase " or parents , " unequivocally

establishes that a charter school may provide transportation

through various means, including an agreement or contract with

the parents of students . In other words, the phrase " or parents "

in the charter transportation se ction can only mean that parents

are one of the legal options by which Florida charter schools can

transport their students to and from the charter school.

6 5 . In the present case, the evidence adduced at hearing

demonstrates that Renaissance Charter Scho ol at Tradition has

entered into a written agreement with p arents of enrolled

students , whereby the parents have expressly agreed to be

responsible for the transportation of their children to and from

school. These agreements are consistent with, and cont emplated

by, the plain and unambiguous language of section 1002.33(20)(c).

Renaissance Charter School at Tradition met its statutory

obligation with regard to the provision of transportation because

parent transportation is one of the specific legal optio ns

available to the school under the statutes, and this option was

made available to the parents.

6 6 . Notwithstanding the plain and unambiguous language

of section 1002.33(20)(c), the School Board argues that

section 1006.21(3) , Florida Statutes, requires that Renaissance

Charter School at Tradition provide regular school busing for all

students residing more than two miles from the charter school.

6 7 . Section 1006.21(3) is contained within Subpart I.E., of

c hapter 1006. Section 1006.21 is titled: Dutie s of district

school superintendent and district school board regarding

transportation .

68 . Section 1006.21(3) provides, in part, as follows:

(3) District school boards, after

considering recommendations of the district

school superintendent:

( a) Sh all provide transportation for each

student in prekindergarten disability

programs and in kindergarten through grade 12

membership in a public school when, and only

when, transportation is necessary to provide

adequate educational facilities and

opportunit ies which otherwise would not be

available and to transport students whose

homes are more than a reasonable walking

distance as defined by rules of the State

Board of Education, from the nearest

appropriate school.

( b) Shall provide transportation for pu blic

elementary school students in membership

whose grade level does not exceed grade 6,

and may provide transportation for public

school students in membership in grades 7

through 12, if such students are subjected to

hazardous walking conditions as provi ded in

s. 1006.23 while en route to or from school.

* * *

( e) Shall provide necessary transportation

to pregnant students or student parents, and

the children of those students, when the

district school board operates a teenage

parent program p ursuant to s. 1003.54.

69 . The School Board further relies on Florida

Administrative Code Rule 6A - 3.001 (3) , which provides:

(3) A reasonable walking distance for any

student who is not otherwise eligible for

transportation pursuant to Section 1011.68,

F.S., is any distance not more than two (2)

miles between the home and school or one and

one - half (1 1/2) miles between the home and

the assigned bus stop. Such distance shall

be measured from the closest pedestrian entry

point of the property where the student

resides to the closest pedestrian entry point

of the assigned school building or to the

assigned bus stop. The pedestrian entry

point of the residence shall be where private

property meets the public right - of - way. The

district shall determine the shortest

pedestrian route whether or not it is

accessible to motor vehicle traffic.

7 0 . The School Board further relies on s ection

1006.22(1)(a) , which provides:

District school boards shall use school buses

. . . for all regular transportation.

Regula r transportation or regular use means

transportation of students to and from school

or school - related activities that are part of

a scheduled series or sequence of events to

the same location .

7 1 . Had the Legislature not specifically stated in

section 10 02.33(20)(c) that " [t] he governing body of the charter

school may provide transportation through an agreement or

contract with the district school board, a private provider, or

parents , " then the School Board ' s position might be well - taken.

7 2 . However, t he Legislature chose to include a specific

sentence in section 1002.33(20)(c), which clearly and

unambiguously provides that transportation of charter school

students may be provided through various mechanisms, including

through an agreement between the pa rents and the charter school.

7 3 . Even if the undersigned were to resort to rules of

statutory construction, the outcome would be the same. The

specific sentence in section 1002.33(20)(c) , which provides that

transportation of charter school students may be provided

" through " an agreement between the " parents " and charter school,

would control over section s 1006.21(3) and 1006.22(1)(a) .

7 4 . There are several basic statutory construction

principles which guide this analysis . First, a specific

statutory p rovision controls over another general statutory

provision. Sch. Bd. v. Survivors Charter Sch., Inc. , 3 So. 3d

1220, 1232 (Fla. 2009); Fla. Virtual Sch. v . K12, Inc. , 148 So.

3d 97, 101 - 104 (Fla. 2014). In the instant case, section

1002.33(20)(c) contain s a specific statutory provision dealing

with charter school transportation, and a specific sentence which

allows a charter school to provide transportation to its students

through various means, including through an agreement with

parents. Section s 1006. 21(3) and 1006.22(1)(a) , on the other

hand, deal with the more general subject of transportation.

7 5 . Second, a statutory provision will not be construed in

such a way that it renders meaningless any other statutory

provision. Fla. Virtual Sch. v. K12, I nc. , 148 So. 3d at 101 -

104 . In the instant case, to conclude that Renaissance Charter

School at Tradition is required to transport by regular school

bus all students residing more than two miles from the charter

school, would render meaningless the senten ce in section

1002.33(20)(c), which specifically allows a charter school to

provide transportation to its students " through " various means,

including through an agreement with " parents. "

7 6 . Third, significant e ffect must be given to every word,

phrase, s entence, and part of the statute if possible, and words

in a statute should not be construed as mere surplusage. Sch.

Bd. v. Survivors Charter Sch., Inc. , 3 So. 3d 1220, 1232 - 33 (Fla.

2009) . In the instant case, to conclude that Renaissance Charter

Schoo l at Tradition is required to transport by regular school

bus all students residing more than two miles from the charter

school would ignore the specific sentence in the charter school

transportation statute, section 1002.33(20)(c), which contains

t he word " through, " and the phrase " or parents. " Such a

conclusion would reduce the sentence to mere surplusage.

7 7 . Furthermore, t o c onclude that Renaissance Charter

School at Tradition is required by the charter school statute to

provide regular school bus tra nsportation to all students

residing more than two miles from the charter school would

violate one of the fundamental principles of the cha rter school

statute , which is to provid e charter schools g reater flexibility.

7 8 . The L egislature specifically recog nized that charter

schools should have greater flexibility than traditional public

schools. Parents choose to send their children to charter

schools, knowing full - well that they may reside more than two

miles from the charter school, and that their tradit ional public

school may be located much closer to their residence than the

charter school.

79 . Accordingly, the undersigned concludes, as a matter of

law, that Renaissance Charter School at Tradition is not required

by the charter school statute to transp ort by regular school bus

all children resid ing more than two miles from the charter

school .

8 0 . As detailed above, the charter contract and Renaissance

Charter School at Tradition ' s Transportation Policy also do not

require Renaissance Charter School at Tradition to transport by

regular school bus all children who reside more than two miles

from the charter school. 5 /

8 1 . As detailed above, the School Board ' s insistence that

Renaissance Charter School at Tradition transport by regular

school bus all stude nts residing more than two miles from the

charter school is inequitable and violates the provision in

section 1002.33(6)(h) with respect to the " equitable treatment of

the charter school as a public school. "

School Board Policies 3.90 (11) and (14) and 8.31 Cannot b e

Applied t o Petitioners

8 2 . Petitioners contend that School Board Policy 3.90

constitutes an invalid exercise of delegated legislative

authority. Section 120.56( 3), Florida Statutes, provides, in

pertinent part:

CHALLENGING EXISTING RULES; SP ECIAL

PROVISIONS. --

(a) A substantially affected person may seek

an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule. The

petitioner has a burden of proving by a

preponderance of the evidenc e that the

existing rule is an invalid exercise of

delegated legislative authority as to the

objections raised.

(b) The administrative law judge may declare

all or part of a rule invalid. The rule or

part thereof declared invalid shall become

void when the time for filing an appeal

expires. The agency whose rule has been

declared invalid in whole or part shall give

notice of the decision in the Florida

Administrative Register in the first

available issue after the rule has become

void.

8 3 . Under secti on 120.52(8), a rule by an administrative

agency may be challenged as " an invalid exercise of delegated

legislative authority, " which is defined to mean " action which

goes beyond the powers, functions, and duties delegated by the

Legislature. "

8 4 . Among the factors in determining whether a rule is

an invalid exercise of delegated legislative authority are:

1) whether " [t]he agency has exceeded its grant of rulemaking

authority, citation to which is required by s. 120.54(3)(a)1. " ;

and 2) whether " [t]he rule enlarges, modifies, or contravenes the

specific provisions of law implemented, citation to which is

required by s. 120.54(3)(a)1. " § 120.52(8)(b) & (c) , Fla. Stat. ;

see also Lamar Outdoor Adver. v . Fla. DOT , 17 So. 3d 799, 801

(Fla. 1st DCA 2009) .

8 5 . In the instant case, Policy 3.90(11) provides as

follows:

(11) Transportation and Food Services

(a) Transportation and food services are the

responsibility of charter schools and must be

provided according to District, state, and

federal rules and r egulations.

(b) A charter school may contract with the

District for transportation and/or food

service or may contract with a private

provider.

8 6 . The undersigned concludes, as matter of law, that

School Board Policy 3.90(11) is an invalid exercise of delegated

legislative authority because it modifies and contravenes the

charter school statute, specifically sections 1002.33(20)(c) ,

1002.33(6)(h) , and 1002.33(5)( b ) 1.d.

8 7 . Notably absent from School Board Policy 3.90 is any

language authorizing the ch arter school to agree or contract with

" parents. " As detailed above, s ection 1002.33(20 ) (c)

specifically allows for charter schools to agree or contract with

parents to provide transportation for their own children to and

from the charter school. Moreove r, section 1002.33(5)( b ) 1.d.

provides that "the sponsor shall not apply its policies to a

charter school unless mutually agreed upon to by both parties and

the charter school." School Board Policy 3.90 is unreasonable

and violates the intent of giving cha rter schools greater

flexibility because it fails to expressly provide that charter

schools may agree or contract with parents for transportation ,

and the policy was not mutually agreed upon by the parties .

8 8 . Petitioners further assert that School Board

Policy 3.90(14) does not provide for the pass through of federal

funds, as required by section 1002.33(17)(c). School Board

Policy 3.90(14) provides, i n pertinent part, as follows:

(14) Funding

(a) Funding for student enrollment in a

charter school sha ll be the sum of District

operating funds from the Florida Education

Finance Program, including gross state and

local funds, discretionary lottery funds, and

discretionary mileage funds divided by

totally District funded weighted full - time -

equivalent stude nts times the weighted full -

time - equivalent students of the particular

charter school. Charter Schools, if

eligible, shall also receive their

proportionate share of categorical program

funds included in the Florida Education

Finance Program.

(b) Federa l funds received by the District

for the provision of services shall be used

to provide charter school students the level

of services provided to other student

enrolled in schools operated by the School

Board as appropriate in consideration of the

provisio ns of the funding sources.

(c) Total funding shall be recalculated

during the school year to reflect actual

weighted FTE students reported by the charter

school during the FTE student survey periods.

8 9 . Section 1002.33(17) provides, in pertinent pa rt:

(17) FUNDING. -- Students enrolled in a

charter school, regardless of the

sponsorship, shall be funded as if they are

in a basic program or a special program, the

same as students enrolled in other public

schools in the school district . . . .

(a) Eac h charter school shall report its

student enrollment to the sponsor as required

in s. 1002.62, and in accordance with the

definitions in s. 1011.61. The sponsor shall

include each charter school ' s enrollment in

the district ' s report of student enrollment.

All charter schools submitting student record

information required by the Department of

Education shall comply with the Department of

Education ' s guideline for electronic data

formats for such data, and all districts

shall accept electronic data that com plies

with the Department of Education ' s electronic

format.

(b) The basis for the agreement for funding

students enrolled in a charter school shall

be the sum of the school district ' s operating

funds from the Florida Education Finance

Program as provide d in s. 1011.62 and the

General Appropriations Act, including gross

state and local funds, discretionary lottery

funds, and funds from the school district ' s

current operating discretionary millage levy;

divided by total funded weighted full - time

equivalent students in the school district;

multiplied by the weighted full - time

equivalent students for the charter school.

Charter schools whose students or programs

meet the eligibility criteria i n law are

entitled to their proportionate share of

categorical program funds included in the

total funds available in the Florida

Education Finance Program by the Legislature,

including transportation and the Florida

digital classrooms allocation. Total f unding

for each charter school shall be recalculated

during the year to reflect the revised

calculations under the Florida Education

Finance Program by the state and the actual

weighted full - time equivalent students

reported by the charter school during th e

full - time equivalent student survey periods

designated by the Commissioner of Education.

(c) If the district school board is

providing programs or services to students

funded by federal funds, any eligible

students enrolled in charter schools in the

sc hool district shall be provided federal

funds for the same level of service provided

students in the schools operated by the

district school board. Pursuant to

provisions of 20 U.S.C. 8061 s. 10306, all

charter schools shall receive all federal

funding fo r which the school is otherwise

eligible, including Title I funding, not

later than 5 months after the charter school

first opens and within 5 months after any

subsequent expansion of enrollment. Unless

otherwise mutually agreed to by the charter

school a nd its sponsor, and consistent with

state and federal rules and regulations

governing the use and disbursement of federal

funds, the sponsor shall reimburse the

charter school on a monthly basis for all

invoices submitted by the charter school for

federal funds available to the sponsor for

the benefit of the charter school, the

charter school ' s students, and the charter

school ' s students as public school students

in the school district. Such federal funds

include, but are not limited to, Title I,

Title II, and Individuals with Disabilities

Education Act (IDEA) funds. To receive

timely reimbursement for an invoice, the

charter school must submit the invoice to the

sponsor at least 30 days before the monthly

date of reimbursement set by the sponsor. In

orde r to be reimbursed, any expenditures made

by the charter school must comply with all

applicable state rules and federal

regulations, including, but not limited to,

the applicable federal Office of Management

and Budget Circulars; the federal Education

Depa rtment General Administrative

Regulations; and program - specific statutes,

rules, and regulations. Such funds may not

be made available to the charter school until

a plan is submitted to the sponsor for

approval of the use of the funds in

accordance with a pplicable federal

requirements. The sponsor has 30 days to

review and approve any plan submitted

pursuant to this paragraph.

9 0 . In the instant case, School Board Policy 3.90(14)

contravenes and modifies section s 1002.33(17)(c) and

1002.33(5)( b ) 1.d . Sc hool Board Policy 3.90(14) limits a charter

school ' s receipt of federal funds received by the School Board

for the provision of services " as appropriate in consideration of

the provisions of the funding sources . " Th is provision,

particularly the use of th e term " appropriate," gives the School

Board unbridled discretion to determine the circumstances under

which a charter school may receive federal funds. Section

1002.33(17)(c) , on the other hand, is m ore specific and less

discretionary with regard to a ch arter school ' s right to receipt

of federal funding. Moreover, the policy was not mutually agreed

upon by the parties. Finally , School Board Policy 3.90(11)(b) is

unreasonable and violates the intent of the charter school

statute to giv e charter schools g reater flexibility .

A ccordingly, School Board Policy 3.90(14) is an invalid exercise

of delegated legislative authority.

9 1 . As to School Board Policy 8.31, the unrefuted testimony

at hearing establishes that the School Board would not apply the

policy i n a situation where a charter school ' s transportation

plan is viable.

9 2 . Based on the undersigned ' s conclusion that Renaissance

Charter School at Tradition ' s transportation plan is valid, it is

unnecessary to reach the issue of whether School Board Polic y

8.31 constitutes an invalid exercise of delegated legislative

authority. Nevertheless, the undersigned concludes, as a matter

of law, that School Board Policy 8.31 is an invalid exercise of

delegated legislative authority for the same reasons as School

Board Policy 3.90(11).

9 3 . Finally, based on the Findings of Fact and Conclusions

of Law detailed above , it is unnecessary to reach the issue of

whether the School Board has the legal authority to adopt School

Board Polic ies 3.90 and 8.31 . 6/

The School Bo ard Does not Have an Unadopted Policy

9 4 . Section 120.56(4)(a) authorizes any person who is

substantially affected by an agency statement to seek an

administrative determination that the statement is actually a rule

whose existence violates section 120.54 (1)(a) because the agency

has not formally adopted the statement. Section 120.54(1)(a)

declares that "[r]ul emaking is not a matter of agency discretion"

and directs that "[e]ach agency statement defined as a rule by

s. 120.52 shall be adopted by the rulem aking procedure provided

by this section as soon as feasible and practicable. "

9 5 . Section 120.52(16) defines the term "rule" to mean :

each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes th e

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule.

9 6 . To be a rule, a statement of general applicability must

operate in the manner of a law. Thus, a statement is a rule if

its effect is to create stability and predictability within its

field of operation; if it treats all those with like cases

equally; if i t requires affected persons to conform their behavior

to a common standard; or if it creates or extinguishes rights,

privileges, or entitlements . State Dep't of Admin. v. Harvey , 356

So. 2d 323, 325 (Fla. 1st DCA 1977); see also Jenkins v. State ,

855 So. 2d 1219 , 1225 (Fla. 1st DCA 2003); Amos v. Dep't of HRS ,

444 So. 2d 43, 46 (Fla. 1st DCA 1983).

9 7 . Because the definition of the term "rule" expressly

includes statements of general applicability that implement or

interpret law, an agency's interpretat ion of a statute that gives

the statute a meaning not readily apparent from its literal

reading and purports to create rights, require compliance, or

otherwise have the direct and consistent effect of law, is a rule,

but one which simply reiterates a statu tory mandate is not. State

Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147 (Fla. 1st DCA

2010); Beverly Enters . - Fla . , Inc. v. Dep't of HRS , 573 So. 2d 19,

22 (Fla. 1st DCA 1990); St. Francis Hosp., Inc. v. Dep't of HRS ,

553 So. 2d 1351, 1354 (Fla. 1st DCA 1989).

9 8 . On the other hand, an agency statement applying an

existing adopted rule is not itself an unpromulgated rule. Envtl.

Trust v. Dep't of Envtl. Prot. , 714 So. 2d 493, 498 (Fla. 1 st DCA

1998); Bis z v. Fla. Dep't of Agric. & Consumer Servs. , 802 S o. 2d

385 (Fla. 3d DCA 2001).

99 . Section 120.56(4)(c) authorizes the administrative law

judge ("ALJ") to enter a final order determining that all or part

of a challenged statement violates section 120.54(1)(a). The ALJ

is not authorized to decide, howev er, whether the statement is an

invalid exercise of delegated legislative authority as defined in

section 120.52(8)(b) through (f). Thus, in a section 120.56(4)

proceeding, it is not necessary or even appropriate for the ALJ to

decide whether an unadopted rule exceeds the agency's grant of

rulemaking authority, for example, or whether it enlarges,

modifies, or contravenes the specific provisions of law

implemented, or is otherwise "substantively" an invalid exercise

of delegated legislative authority.

10 0 . Section 120.56(4) is forward - looking in its approach.

It is designed to prevent future or recurring agency action based

on an unadopted rule, not to provide relief from final agency

action that has already occurred. Thus, if a violation is found,

the a gency must, pursuant to section 120.56(4)(d), "immediately

discontinue all reliance upon the statement or any substantially -

similar statement as a basis for agency action." See, e.g. , Ag.

for Health Care Admin. v. HHCI Ltd. , 865 So. 2d 593, 596 (Fla.

1st DCA 2004).

10 1 . Turning to the instant case, Petitioners failed to

establish by a preponderance of the evidence that the School

Board has a n unadopted busing policy of requiring all charter

schools within the county to transport by school bus all students

residing more than two miles from the charter school. Instead,

the School Board's position rests on its erroneous application of

the charter school statute and existing adopted School Board

Policies 3.90(11) and 8.31.

ORDER

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is ORDERED that :

1. The School Board cannot require Petitioners to offer

regular school busing to all charter school students residing

more than two miles from Renaissance Charter School at Tradition.

2. Renaissance Charter School at Tradition did not breach

its contract with the School Board by not providing

transportation to students in accord with the parties ' charter

school contract and Florida Statutes.

3. Renaissance Charter School at Tradition ' s charter schoo l

contract and its transportation policy do not require Petitioners

to transport by regular school bus, all students of Renaissance

Charter School at Tradition residing more than two miles from the

charter school.

4. The School Board does not have an una dopted illegal

policy that all charter schools within the county are required to

transport by regular school bus all students residing more than

two miles from their charter school .

5. School Board Policies 3.90 (11) and (14) are an invalid

exercise of del egated legislative authority, and the School Board

shall immediately cease any and al l reliance upon these policies.

6. The undersigned retains jurisdiction to consider issues

pertaining to attorneys' fees and costs.

DONE AND ORDERED this 30th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June , 2015 .

ENDNOTE S

1/ All students residing within the school district are eligible

to attend any charter schools within t he district, without regard

to how many miles away from the charter school the student

resides.

2/ K.W. lives more than four miles from Renaissance Charter

School at Tradition. K.W. testified that she did not enroll her

child at the charter school for t he 2013 - 2014 school year because

the school does not offer regular bus transportation to students,

and she had no other way to tran sport her child to the school.

L.H.H. lives almost seven miles away from the charter school and

about four miles away from R enaissance Charter School at St.

Lucie. L.H.H. ' s two children attended Renaissance Charter School

at Tradition during the entire 2013 - 2014 school year, during

which time L.H.H. provided her own transportation for her

children. In addition, L.H.H. signed the " Parent Obligation

form " for the 2013 - 2014 school year. However, L.H.H. decided not

to enroll her children at Renaissance Charter School at Tradition

for the 2014 - 201 5 school year because no regular school busing

was going to be provided. At the fina l hearing, L.H.H.

acknowledged that Renaissance Charter School at St. Lucie offers

regular school busing. Nevertheless, L.H.H. chose to enroll her

children at Kidzone Academy, where they are on scholarship and

happy. Kidzone Academy is located less than three miles from

L.H.H.'s residence.

3 / Notably, the charter agreement between the School Board and

Renaissance Charter School at St. Lucie specifically provides

that Renaissance Charter School at St. Lucie " shall use school

buses " for the transportatio n of students to and from the charter

school. This language is absent from the charter agreement

between the School Board and Renaissance Charter School at

Tradition . Had the School Board intended to contract with

Renaissance Charter School at Tradition to require the regular

busing of all students residing more than two miles from the

charter school, it certainly could have defined transportation in

the parties ' charter contract to require " school buses " for the

regular transportation of all students res iding more than two

miles from the charter school .

4/ School Board Policy 3.90(11) provides as follows:

( 1 1) Transportation and Food Services

(a) Transportation and food services are the

responsibility of charter schools and must be

provided accordin g to District, state, and

federal rules and regulations.

(b) A charter school may contract with the

District for transportation and/or food

service or may contract with a private

provider.

School Board Policy 8.31 provides as follows:

(1) Any student who resides more than a

reasonable walking distance, as defined by

the Florida Department of Education, from the

nearest appropriate school is eligible to

ride a district school bus to and from

school. The student shall board the bus at

the stop designate d which is nearest his home

and may not enter or leave at any other stop

except in case of an emergency; provided,

that any exception shall be approved in

writing by the school principal on request of

the parent or guardian.

(2) Students with special tra nsportation

needs as defined in Florida Statutes, may

ride a school bus regardless of distance.

(3) Bus routes will be designated which will

provide safe and economical transportation.

All bus routes and stop locations shall be

designated so as to ensur e safety and

efficiency and shall be available for

inspection. To the extent practicable, as

determined by the Superintendent or designee,

when consistent with other provisions of this

policy, and when permitted under the

requirements of state and federal law

governing education and related services to

individual students with special needs, bus

stops should not be located on arterial or

collector roadways that lack sidewalks.

(4) A deviation in a school bus route may be

made by the transportation depart ment when

necessary. Each bus driver shall have on his

or her bus a schedule of stops and

approximate times.

(5) The Board will transport children

attending the public schools of the district

within the limits of the law. A student who

is subject to ha zardous walking conditions,

as determined by the Board, whose grade level

does not exceed grade 5 may be transported to

school by bus.

(6) For students who have chosen an

assignment to a magnet school, routes and bus

stop locations may be designated usin g an

express run system of community bus stops.

The express run system substitutes

traditional neighborhood stops with fewer

community stops located at public places in

order to promote efficiency and economy.

Community stops may be located more than a

r easonable walking distance from the

student's home. For more information on

magnet school transportation options

available for specific residential

areas, parents may refer to the

Transportation Department website at

http://www.stlucie.k12.fl.us/includes/ Transpo

rtation/Trans.aspx or contact the

Transportation Department at (772) 785 - 6602.

5 / According to Petitioners, the Florida State Board of

Education recently adopted the Florida Standard Contract (which

took effect on December 23, 2014). This new for m contract ,

according to Petitioners, is incorporated by reference into

amended Florida Administrative Code R ule 6A - 6.0982 and is

accessible through the following electronic hyperlink :

https://www.flrules.org/gateway/reference.asp?No=Ref - 04769 .

Petitioner s seek to rely on this purported rule in support of

their argument.

Notably, section 120.54(1)(i)3 . and 4 ., Florida Statutes,

provide s , in pertinent part:

3. In rules adopted after December 31, 2010,

material may not be incorporated by reference

unless:

a. The material has been submitted in the

prescribed electronic format to the

Department of State and the full text of the

material can be made available for free

public access through an electronic hyperlink

from the rule making the reference in the

Fl orida Administrative Code; or

b. The agency has determined that posting

the material on the Internet for purposes of

public examination and inspection would

constitute a violation of federal copyright

law, in which case a statement to that

effect, along with the address of locations

at the Department of State and the agency

at which the material is available for public

inspection and examination, must be

included in the notice required by

subparagraph (3)(a)1.

4. A rule may not be amended by reference

o nly. Amendments must set out the amended

rule in full in the same manner as required

by the State Constitution for laws.

Contrary to Petitioners ' position, the purported amended rule is

not accessible through an electronic hyperlink from the rule

making the reference in the Florida Administrative Code.

Although rule 6A - 6.0982 on the Department of State website ( which

contains the Florida Administrative Code rules ) references the

electronic hyperlink , the new form is not accessible via the

electronic hype rlink. Accordingly, Petitioners ' reliance on the

purported new State Board of Education form contract is rejected.

6/ Notably, Petitioners acknowledge in their amended petition

that their primary argument in Case No. 14 - 4045RU is their

" unpromulgated " r ule challenge. Although Petitioners generally

alleged that the School Board lacks the legal authority to adopt

School Board Policy 3.90, they failed to meet their burden of

alleging and identifying specific provisions of the policies they

contend the Scho ol Board lacks the legal authority to adopt.

COPIES FURNISHED:

Stephanie Alexander, Esquire

Tripp Scott, P.A.

Suite 216

200 West College Avenue

Tallahassee, Florida 32301

(eServed)

William E. Williams, Esquire

Gray Robinson, P.A.

Suite 600

301 South B ronough Street

Post Office Box 11189

Tallahassee, Florida 32302

(eServed)

Barbara Lee Sadaka, Esquire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

(eServed)

Elizabeth Coke, Esquire

Richeson and Coke, P.A.

Post Office Bo x 4048

Fort Pierce, Florida 34948

(eServed)

Matthew Mears , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner

Department of Education

Turli ngton Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

E rnest Reddick, Chief

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Alexandra Nam

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Gen elle Zoratti Yost , Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947 - 5414

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursu ant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administr ative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its head quarters or where a party resides or

as otherwise provided by law.