14-000285RX Sports Camp, Inc., D/B/A Sports Club, A Florida Not-For-Profit Corporation vs. Collier County School Board Status: Closed DOAH Final Order on Wednesday, September 17, 2014.

Summary: Dismissal of rule challenge because School Board acted pursuant to its constitutional authority, and the challenged rule is not a delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPORTS CAMP, INC., d/b/a SPORTS

CLUB, A FLORIDA NOT - FOR - PROFIT

CORPORATION,

Petitioner,

and

PARENTS' RIGHTS OF CHOICE FOR

KIDS, INC., d/b/a PARENTS ROCK,

Intervenor,

vs. Case No. 14 - 0285RX

COLLIER COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

FINAL ORDER

On May 6 through 8, and June 5 through 6, 2014,

Thomas Porter Crapps, a duly - designated Administrative Law Judge

of the Division of Administ rative Hearings (DOAH), conducted the

final hearing in this case in Naples, Florida.

APPEARANCES

For Petitioner: Kevin Pendley, Esquire

Grant Fridkin Pearson, P.A.

5551 Ridgewood Drive, Suite 501

Naples, Florida 34103

For Respondent: Jon Fishbane, Esquire

School Board of Collier County

5775 Osceola Trail

Naples, Florida 34109

James D. Fox, Esquire

Roetzel a nd Andress, LPA

850 Park Shore Drive

Trianon Centre, Third Floor

Naples, Florida 34103

For Intervenor: Steven J. Bracci, Esquire

Steven J. Bracci, P.A.

9015 Strada Stel l Court, Suite 102

Naples, Florida 34109

STATEMENT OF THE ISSUE

Whether Amended School Board Policy 2262 is an invalid

exercise of delegated legislative authority under

section 120.52(8), Fl orida Statutes (2013) 1/ .

PRELIMINARY STATEMEN T

On January 17, 2014, Petitioner, Sports Club, Inc., a

Florida non - profit corporation, doing business as Sports Club

(Sports Club), filed with DOAH a Petition to Determine Invalidity

of a Rule (Petition), adopted by the School Board of Collier

County ( Sch ool Board) . The challenged rule is the School BoardÓs

Before and After School Child Care Services Policy, Amended

School Board Policy 2262 (Amended School Board Policy 2262) ,

adopted on December 10, 2013.

The School Board adopt ed Amended School Board Po licy 2262 in

response to an unadopted rule challenge. See Bracci v. Sch. Bd.

of Collier Cnty. , Case No. 13 - 2394RU (Fla. DOAH Jan. 17,

2014)(dismissing unadopted rule challenge as moot where School

Board initiated rulemaking and adopted rule). Th is unadop ted

rule challenge had argued that the School BoardÓs Request for

Qualifications #115 - 4/13 (RFQ) constituted an unpromulgated rule.

The RFQ sought to qualify child care providers to operate before

and after school child care programs located at the Distri ctÓs

elementary schools. During the unadopted rule challenge, the

School Board, on September 13, 201 3 , elected to initiate

rulemaking, and ultimately adopted Amended School Board Policy

2262 , and wholly incorporated the RFQ into its policy.

On February 21 , 2014, ParentsÓ Rights of Choice for Kids,

Inc., doing business as Parents Rock, a Florida non - profit

corporation (Parents Rock), filed a Petition to Intervene in the

rule challenge case , which was granted.

Sports ClubÓs Petition alleged that Amended S chool Board

Policy 2262 improperly allows the Collier County School District

(District) to act as a private business and operate its own child

care programs. Sports Club contends that absent a specific

constitutional or delegated statutory authority, the School

BoardÓs adopted rule is invalid. Further, Sports Club alleges

that Amended School Board Policy 2262 Ðis the product of an

invalid procedure, vests unbridled discretion in the School

Board, and imposes regulatory costs on Sports Club and the public

over and above less costly alternatives[.]Ñ Thus, Sports Club

concludes that Amended School Board Policy 2262 is an Ðinvalid

exercise of delegated legislative authority.Ñ

T he parties filed a stipulated agreement to hold the final

hearing beyond the 30 - day time limit found in

section 120.56(1)(c) , Florida Statutes . The final hearing began

the first week in May 2014, but the parties were unable to finish

the case. As a result, the final hearing was continued until

June 5, 2014, and was completed the next day.

Sports Club presented the testimony of : two of its

corporate officers , Lane Beatty and William Carufe; Pat Mitchell,

an internal funds accountant for the School Board; Roy Terry, a

School Board member; Dr. Kamela Patton, superintendent for the

Scho ol Board (Superintendent Patton); Jodie Moorhead, principal

of Lake Trafford Elementary School; and Marilou Andrews,

principal of Laurel Oaks Elementary. Sports Club admitted into

evidence Petitioner Ós Exhibits 1 through 3 and 5 through 9.

Parents Rock pr esented the testimony of Erika Donalds , its

president, and Nancy Sirko, the School DistrictÓs director of

purchasing. Parents Rock introduced into evidence Intervenor Ós

Exhibits 1 through 3, 6, 8 through 13, 16 through 20, 24 through

30, 34, 36, 38, 40 th rough 44, 47 through 50, 56 and 59.

The School Board presented the testimony of : Superintendent

Patton; Nancy Sirko; Sandy Eaton, the School BoardÓs

administrative director of operations; and Steve Brettholtz, an

expert witness. The School Board admitted into evidence

Respondent Ós Exhibits 1 through 4, 6 through 9, 11 and 17

through 19.

A six - volume Trial Transcript was filed with DOAH. The

undersigned granted the parties Ó request for an extension of time

in order to file proposed recommended orders. Sports Club and

Parents Rock filed a joint Proposed Recommended Order, and the

School Board filed its own separate Proposed Recommended Order .

FINDINGS OF FACT

1. The School Board has the constitutional duty to operate,

control and supervise the public schools within Collier County,

Florida. Art. IX, § 4(b), Fla. Const. (2014); see also

§ 1001.32, Fla. Stat.

2. Sports Club is a private, non - profit Florida

c orporation, whose principal business activity is providing

before and after school child care. Sports Club is located in

Collier County, and offers its child care services at its own

private facilities, as well as at certain District elementary

schools.

3. Parents Rock is a private, non - profit Florida

c orporation formed on June 24, 2013, for the purpose of

representing parentsÓ interests in education, and advocating for

legislation, regulations, and government programs that improve

parentsÓ rights and choi ces in local education. Parents RockÓs

membership consists of approximately 700 individuals, mostly

parents of children attending schools in the District. A

substantial number of these parents us e the child care programs

located at the District facilities. Moreover, a substantial

number of Parents RockÓs members routinely attend School Board

me etings and advocate for parental involvement in their

childrenÓs education and issues of importance, like the

DistrictÓs child care program.

4. Amended School Board Policy 2262, which is part of the

School BoardÓs Bylaws and Policies, is titled: Befor e and After

School Child C are. The challenged policy contains paragraphs

lettered ÐA through LÑ which provides for the following issues:

A. Parents and the community being given an

opportunity to make recommendations

concerning the operation and funding of child

care programs prior to the approval by the

School District;

B. Child care programs and services being

available to students both prior to and after

the school day;

C. Child care programs having an emphasis on

providing educational opportunitie s and

Ðvariety of activities that promote the

social, intellectual, and physical

development of children in the program[;]Ñ

D. Adequate attention being given to the

child care programs having an environment

that meets the needs and well - being of the

chi ldren, ensuring the childrenÓs safety,

security, that the children are clothed, fed,

and Ðhav[ing] an opportunity for a variety of

social, intellectual, and physical

activities[;]Ñ

E. Vendors or other organization contracted

to provide the child care pro grams having

adequate liability insurance, and

Ðmaintaining appropriate adult - child ratios,

provide quality child care, and in general,

complying with the procedures established by

the State and the District[;]Ñ

F. Notifying parents and families about th e

child care programs and procedures for

enrollment;

G. Continuing program assessments by staff,

participating parents, and other stakeholders

during the course of the child care program;

H. Fees for the child care services being

applied only to those schools involved in

vendor run or school based programs;

I. Recognizing that a parent may notify the

child care providers of the parentÓs

preference that a child receiving either

additional physical or academic activities,

and Ðevery reasonable effort s hall be made to

accommodate the request[;]Ñ

J. Parents, whose children participate in

the child care programs, giving Ðfeedback

concerning the programÑ and requiring that

the DistrictÓs manager of after school child

care consider the information;

K. A procedure for surveying and collecting

information from parents evaluating the child

care programs; and

L. Providing that Ð[a]ny terms, conditions,

or issues enumerated in the DistrictÓs RFQ

115 - 4113 [sic], whether express or implied,

related to this pol icy, are hereby adopted

and incorporated by reference in the policy

during the duration of RFQ 115 - 4113 including

any renewal period provided for in said RFQ.Ñ

Amended School Board Policy 2262 then states that to Ðimplement

this policy, the Superintenden t will develop and/or revise

administrative procedures consistent with the RFP/RFQ process

relative to child care service.Ñ

5. The School Board wholly adopted School Age Child Care

Services, RFQ #115 - 4/13 (RFQ), into its Policy. Consequently, a

short exp lanation of the RFQ is required here.

6. In the RFQ, the District sought to qualify child care

providers to operate child care programs at the DistrictÓs

elementary schools. T he RFQ that was released by the District,

on May 2, 2013, provided for:

1) un iform fees for all program services; 2 /

2) no credit for fees paid, if a child was

unable to use the child care program due to

an absence; 3 /

3) a $10.00 surcharge on each registered

student that a private vendor provided

financial assistance to attend the after

school program; 4 / and

4) standards and criteria for the child care

programs that required the programs to be

staffed by certified teachers. 5/

Finally, and importantly, the RFQ allowed elementary school

principals to decide whether or not to offer child care through

private providers or for the school to operate its own Ðin - houseÑ

child care program. 6/

7. Sports Club participated in the RFQ process, and was

identified as a qualified provider. Based on its approval as a

qualified provider, Sports Club was given an opportunity to

present its services to the DistrictÓs elementary school

principals in a webinar. Following the presentation, on

May 29, 2013, five elementary school principals chose Sports Club

as child care provider for their sc hools. However, Sports Club

was not chosen as a provider for six other elementary schools

that it had previously served under a contract with the District.

In some instances, like Veterans Memorial Elementary School, the

principal had decided to operate an Ðin - houseÑ program, rather

than selecting Sports Club.

8. After the selection process, Sports Club informed

parents about the impending changes, and asked the parents to

contact the School Board if they wanted to keep Sports Club as a

child care provid er. The School Board was to ratify the

elementary school principalsÓ decisions at a June 11, 2013,

School Board meeting.

9. Many parents , on learning about the RFQÓs terms and that

Sports Club would no longer be providing child care at their

childÓs el ementary school , became extremely upset. A particular

concern was the DistrictÓs decision not to seek any parental

involvement in the formulation of the RFQ and provisions setting

the uniform fees, which increased the child care costs for the

parents.

1 0. On June 3, 2013, the RFQ became the subject of an

unadopted rule challenge brought by a parent. Rather than

proceeding to a final hearing, the School Board elected to

initiate rulemaking concerning the unadopted rule challenge on

September 13, 2013.

11. In the initial Notice of rulemaking, the School Board

specifically stated that although a proposed text of the rule was

not available, the RFQÓs provisions regarding fees and program

content would serve as a reference point.

12. During the rulemakin g w orkshops on October 16, 2013,

and November 13, 2013, the DistrictÓs rule proposals amended

certain provisions within the RFQ. Specifically, the proposals

amended the RFQÓs terms concerning the amount of the uniform fees

to be charged; 7/ the granting of credits in the limited instance

when a child has a medical excuse for not attending the after

school child care; 8/ setting out a parental survey for assessing

the child care programs; 9/ and reducing the fee paid by private

providers for using the District Ós facilities during the summer

months. 10/

13. The School Board at its December 10, 2013, meeting,

enacted Amended School Board Policy 2262, which incorporated the

RFQ completely into the policy in paragraph ÐL.Ñ On its face,

t he School BoardÓs langua ge in paragraph Ð L Ñ is not clear as to

which version of the RFQ was incorporated. However, the

testimony and attachments to the Amended School Board Policy show

that the School BoardÓs reference is referring to the RFQ, as the

School Board had amended it during the rulemaking process.

14. Amended School Board Policy 2262, with the RFQÓs terms

setting out the uniform fees and program criteria, only applies

to child care programs located at the DistrictÓs elementary

schools. Amended School Board Policy 226 2 has no application for

child care services off - site. The facts here show that Sports

Club owns its own facility, and provides transportation to the

Sports ClubÓs private facility for students from some of the

elementary schools that elected to provide Ð in - houseÑ services.

Parents sign a permission form, and Sports ClubÓs bus transports

the child from the elementary school to Sports ClubÓs facility.

At its private facility, Sports Club is free to offer child care

programs at rates that it decides are ap propriate , without any

regard to the challenged rule.

15. Sports ClubÓs claimed economic losses are the result of

its decision to participate in the RFQ process, not the

challenged rule. Sports Club was selected as a child care

provider under the RFQ at the June 11, 2013, School Board

meeting, and Sports Club subsequently entered into a contract

with the District to provide child care services under the RFQ,

on August 16, 2013. These events occurred months before the

School Board adopted the challenge d rule here at its

December 10, 2013, meeting. Moreover, the undersigned found that

Mr. Brettholtz credibly testified that the financial records

provided by Sports Club did not follow accepted accounting

practices, and could not be used to support Sports ClubÓs claimed

economic losses.

C ONCLUSIONS OF LAW

16 . DOAH has subject matter jurisdiction pursuant to

section 120.56(1), Florida Statutes, concerning whether the

challenged rule is an invalid exercise of delegated legislative

authority.

17. The School Board raised several defenses in response to

Sports ClubÓs rule challenge. One dispositive defense is that

Amended School Board Policy 2262 is pursuant to the School

BoardÓs constitutional authority, and is not a delegated

legislative authority und er section 120.52(8), Florida Statutes.

18. The School Board derives its power to operate, control

and supervise the local schools from the Florida Constitution.

Art. IX, § 4(b), Fla. Const. The L egislature may not reallocate

or delegate those powers. Chiles v. Children A, B, C, D, E

and F , 589 So. 2d 260, 268 - 269 (Fla. 1991). The broad scope of

the School BoardÓs powers are recognized by the L egislature in

section 1001.32(2), Florida Statutes, which provides:

District School Board. Î In accordance with

the provisions of s. 4(b) of Art. IX of the

State Constitution, district school boards

shall operate, control, and supervise all

free public schools in their respective

districts and may exercise any power except

as expressly prohibited by the State

C onstitution or general law.

19 . The School BoardÓs ability to exercise its

constitutional powers is also acknowledged in section 120.81,

Florida Statutes. S ection 120.81(1)(a), Florida Statutes,

recognizes that Ð[n]otwithstanding s. 1 20.536(1) and the flush

left provisions of s. 120.52(8), district school boards may adopt

rules to implement their general powers under s. 1001.41.Ñ The

flush left provisions under section 120.52(8), which recognizes

that Ð[a]n agency may adopt only rules that implement or

interpret the specific powers and duties granted by the enabling

statute[,]Ñ is not applicable to a school board acting to

implement their general powers, which are constitutionally

derived.

20 . While the School Board has constitutional authority

over local control of the public schools, the L egislature has the

constitutional authority to maintain a statewide system of

uniform system of education. Art. IX, § 1(a), Fla. Const. A n

area where the L egislature has asserted its constitutional

authority to m aintain a uniform system of statewide education is

the Florida Education CodeÓs statutes con cern ing the employment

and discipline of school district instructional staff. See

§ 1012.33, Fla. Stat . Thus, in reviewing the School BoardÓs

action here, one mu st determine whether the challenged rule is

one of local concern, and whether the L egislature has asserted

its constitutional authority over the issue.

21 . Applying the law to the School BoardÓs challenged rule

here, the undersigned finds that its Amend ed School Board Policy

2262 is an action pursuant to the School BoardÓ s constitutional

powers, and is not a delegated legislat ive authority. The School

BoardÓs decision for the District to operate its own child care

programs, to set uniform fees, and dete rmine the criteria for

child care programs located at District facilities is purely a

local issue. The decision is a local issue because the

challenged policy and the RFQ have no effect outside of the

DistrictÓs elementary schools that participate in the before and

after school child care programs. Moreover, there is no express

provision, either constitutional or statutory, prohibiting the

School Board from: 1) deciding to offer Ðin - houseÑ child care

programs at its own facilities; 2) determining the rat es to be

charged by providers or vendors providing services at DistrictÓs

facilities; or 3) determining the program criteria and personnel

for child care programs offered at the DistrictÓs facilities.

Consequently, as recognized in section 1001.32, Florid a Statutes,

the School Board here is free to adopt Amended School Board

Policy 2262 in the exercise of its constitutional powers . It is

not an invalid delegation of legislative authority.

O RDER

Based on the foregoing Findings of Fact and Conclusions of

L aw, the PetitionerÓs and IntervenorÓs rule challenge is

dismissed .

DONE AND ORDERED this 17th day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administr ative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7th day of September , 2014 .

EN DNOTES

1/ All references to Florida Statutes shall be to the 2013

edition, unless otherwise specified.

2/ Section 3.4 of the RFQ stated that after school child care for

a full week, consisting of 4 to 5 days, cost $50 per child, with

a $40 per child charge for Collier County Public School

employees. The cost for a partial week, which consisted of 2 to

3 days per week, was $40 per child, with no discount for District

employees. The RFQ set the cost for one day drop off at $20.

The RFQ expressly stat ed that the Ðuniform feesÑ were ÐNOT

negotiable.Ñ RFQ, £ 3.4 (emphasis in original).

3 / Section 3.4 of the RFQ provided that ÐStudents must be

enrolled and tuition is expected to be paid weekly whether the

enrolled child is in attendance or not (i.e. absence due to

illness, appointments or other reasons).Ñ Consequently, under

the RFQ , a parent who had paid for child care would not be given

a credit if his or her child was unable to use the child care

service.

4 / Section 3.7 of the RFQ.

5 / The RFQ envisioned that qualified providers would operate

child care programs at the school facilities that included

academic programs staffed by certified teachers, and incorporated

standards set out by the National Association for Elementary

School Principals. RFQ §§ 3.9 and 4.0.

6 / There was no evidence that the District personnel made any

economic study to determine the potential costs of running the

after school child care programs, and correlat e the uniform fees

set by the District in its RFQ with the cos ts of the program.

7/ Revised section 3.4 of the RFQ, table found in School BoardÓs

Exhibit 1 at page 78.

8 / Revised section 3.6 of the RFQ, Credit for Prepayment for

Health Reasons found in School BoardÓs Exhibit 1 at page 79.

9/ Revised RFQ, Exhi bit D found in School BoardÓs Exhibit 1 at

page 83, and paragraph K of Amended School Board Policy 2262.

1 0 / Revised section 3.7, RFQ, School BoardÓs Exhibit 1 at

page 80. Under the original terms of the RFQ, private child care

providers were required to pay the School District 30 percent of

total monthly tuition charged for all students in the program

during the summer months. Under the proposed revision, the

private child care providerÓs payment was reduced to 20 percent

of total monthly tuition char ged for all students in the program.

COPIES FURNISHED:

Kevin William Pendley, Esquire

Grant Fridkin Pearson, P.A.

5551 Ridgewood Drive , Suite 501

Naples, Florida 34103

(eServed)

Steven J. Bracci, Esquire

Steven J. Bracci, P.A.

9015 Strada Stell Court , Suite 102

Naples, Florida 34109

(eServed)

Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

(eServed)

James D. Fox, Esquire

Roetzel and Andress

850 Park Shore Drive , Suite 300

Naples, Florida 34103 - 3587

(eS erved)

Kamela Patton, Superintendant

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109 - 0919

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eS erved)

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Kenneth Plante, Esquire

Joint Administrative Procedures Committee

Room 680, Pepper Build ing

111 West Madison Street

Tallahassee, Florida 32399 - 1900

(eServed)

Liz Cloud, Program Director

Administrative Code

Department of State

R.A. Gray Building, Room 101

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party w ho is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

n otice of administrative appeal with the agency clerk of the

Division of Administrative 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 Distr ict Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.