17-000495RP Lauren Linares, Cecilia Loyola, James Stanley, Samuel Unger, Jacob Unger, And Catherine Unger vs. School Board Of Pasco County Status: Closed DOAH Final Order on Thursday, April 13, 2017.

Summary: New school attendance boundary is a rule. Petitioners failed to demonstrate rule was invalid.

S T ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUREN LINARES, CECILIA LOYOLA,

JAMES STANLEY, SAMUEL UNGER,

JACOB UNGER, AND CATHERINE

UNGER,

Petitioner s,

a nd

JESSICA MAJER, KARL MAGER,

MARSHA MAJER, AMBER DINICOLA,

ALEXIS DINICOLA, JOSEPH

DINICOLA, ALEXA MCPHERON,

MICHELE MCPHERON, NICHOLAS

CARVALHO, MICHELLE CARVALHO,

NOAH RADLE, BENJAMIN RADLE,

STEPHEN RADLE, BRADY NESSLER,

AJ NESSLER, EVELYN NESSLER,

ANTHONY NESSLER, DOMINIC

FAIELLA, AND ALISON FAIELLA,

Intervenors,

vs. Case No. 17 - 00495RP

SCHOOL BOARD OF PASCO COUNTY,

Respondent .

_______________________________/

FINAL ORDER

On February 27 and 28, 20 17, D.R. Alexander, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) , conducted a final hearing in this case in

Land O' Lakes, Florida.

APPEARANCES

For Petitioner s : Robert Anthony Stines, Esquire

and Intervenors Phelps Dunbar LLP

Suite 1900

100 South Ashley Drive

Ta mpa , Florida 33602 - 5304

For Respondent : Dennis J. Alfonso, Esquire

Carl J. DiCampli, Esquire

K nute J. Nathe, Esquire

McClain, Alfonso , Nathe & DiCampli, P.A.

Post Office Box 4

Dade City , Florida 33526 - 0004

STATEMENT OF THE ISSUE S

The issue s are whether the proposed change of schoo l

attendance boundaries for five midd le schools and five high

schools (West Side Schools) located in southwest Pasco County

(County) is a rule, and , if so, whether the proposed rule is an

invalid exercise of delegated legislative authority.

PRELIMINARY ST ATEMENT

On January 17, 2017, the School Board of Pasco County

(School Board or district ) approved a change of school

attendance boundaries for West Side Schools for school year

2017 - 2018 . On January 20, 2017, Petitioners , t hree students

and/or their paren ts , filed a Petition Challenging Validity of

Proposed Rule (Petition) contending the new boundary for the

West Side Schools is an invalid exercise of delegated

legislative authority . The P etition was later twice amended .

As a basis for relief , it relies primarily on procedural errors

committed by the district during the rezoning process . On

February 20, 2017, a Motion for Leave to Intervene filed on

behalf of 2 4 students and/or their parents was granted. 1/

Because a dispute of material facts existed , Petitioners'

Motion for Summary Final Order to Remand Proceedings to District

was denied.

At the hearing, Petitioners and Intervenors presented the

testimony of 12 witnesses. Also, Petitioners' Exhibits 1 - 3,

5 - 17, and 19 - 2 5 were accepted in evidence. One exhibit was

accepted on a proffer only basis. 2 / The School Board presented

the testimony of five witnesses. School Board Exhibits 1 - 6 ,

8, 10, 11, 13 - 28, 33, and 35 - 41 were accepted in evidence.

A four - volume Transcript of the proceeding was filed.

P roposed final orders (PFOs) were filed by Petitioners /

Intervenors and by the School Board, and they have been

consid ered in the preparation of this Final Order.

F INDINGS OF FACT

1. The School Board is an educational unit and an agency

defined in sect ions 120.52(1)( a ) and (6) , Florida Statutes. One

of its duties is to assign students to schools after

consultation with the Superintendent. See § 1001.41(6), Fla.

Stat.

2. The School Board has divided the County into geographic

areas for purposes of dra wing attendance boundaries. At issue

here is an area that encompass es the West Side Schools,

comprised of 35 designated areas , all west of the Sunshine

Parkway , in which five middle schools and five high schools are

located .

3. Petitioners and Interven ors are students or parents who

reside in area 12. S tudents in area 12 are currently assigned

to J.W. Mitchell High School (Mitchell) or Seven Springs Middle

School (Seven Springs) . W ith a few exceptions cited below,

under the new attendance plan, area 1 2 s tudents will be

reassigned to the River Ridge Middle School or River Ridge High

School (River Ridge) beginning in school year 2017 - 2018. Only

th e rezoning for area 12 is being challenged in this case .

Around 140 students will be moved from Mitchell an d Seven

Springs to other schools during the first year.

4 . Intervenors Evelyn Nessler and Dominic Faiella, who are

in the third and second grades, respectively, will not change

schools this fall and are unaffected by the new rezoning.

Petitioner Nicholas Carvalho is currently in the eighth grade at

Seven Springs and , as a result of his graduation, will be

assigned to River Ridge this fall . Intervenor Brady Nessler is

in the terminal grade for elementary school and, upon

graduation , will be assigned to Ri ver Ridge this fall . Thus,

the reason for reassignment of Carvalho and Nessler is

unconnected to the new rezoning.

5 . The County is experiencing an increase in population

caused by new residential development in the western part of the

County. As a res ult, enrollment in some West Side S chools has

exceeded capacity. For the spring term of school year 2016 -

2017, Mitchell exceeds capacity by 18 percent, while Seven

Springs exceeds capacity by 22 percent. Without a change in

boundaries, in school year 201 7 - 2018, Mitchell is projected to

exceed capacity by 27 percent, while Seven Springs is project ed

to exceed capacity by 31 percent. In contrast, both River Ridge

High School and River Ridge Middle School are currently below

capacity, op erating at 86 and 93 percent capacity, respectively.

The over - capacity at the two schools is expected to continue , as

more residential development is being planned in the State

Road 54 corridor near area 12 , Mitchell , and Seven Springs.

6 . To counter this condition , a tt endance zones are

periodically redrawn in an effort to balance school enrollment .

A School Board planner recalled there have been 2 7 boundary

changes during his tenure as an employee. This case , and one

other , Case No. 17 - 0629RP , which challenges the Eas t Side

Schools rezoning plan , are the first instances when attendance

zones have been formally challenged. As the Superintendent

observed, school rezoning "can be an incredibly painful process"

because parents often move into neighborhoods with the belief

that schools come with the homes. A fair assumption is that a s

long as rezoning does not affect their children, p arents are

content with a new rezoning plan.

7 . Because of anticipated growth in th e County and

existing disparities in school enrollment, i n August 2016, the

Superintendent instructed his planning staff to begin the

process of developing a plan for amending school attendance

boundaries , including the West Side Schools . The stated goal

was to "review and alter the southwest secondary school

b oundaries in order to redistribute the school populations

between overcrowded and under crowded schools and to provide for

future growth as much as possible." Resp. Ex. 17 , p. 00285 . He

further directed that a recommendation be formulated in time for

the School Board to approve a new plan b efore February 1 , 2017 .

This deadline was necessary because by April of each year , the

School Board must prepare a proposed budget for the following

year; adequate lead time is required to develop a new

transportation routing plan ; and once new boundary lines are

drawn, a n open enrollment plan, known as the School Choice

program , a llow s students , between February 1 and March 1 of each

year, to apply for enrollment in a nother school , i.e., in this

case their former schoo l .

8 . The School Board has adopted a set of Bylaws and

Policies , which apply to "Legislative/Policymaking , " or

rulemaking, and follow the requirements found in chapter 120.

See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and

'policy' shall have the same definition. " Id. at 1 . The p olicy

spell s out in detail the procedural requirements for adopting

policies (rules) , which include notice of the proposed policy, a

hearing, preparation of a rulemaking record, Board action , and

appropriate not ices . Id. at 2 - 3. The p olicy also describes how

a substantially affected person may challenge a proposed policy

(rule) . Id. at 4.

9 . R eference to a "rule" and chapter 120 was made in

various announcements , notices , and statements throughout the

rezon ing process . Also, the School Board acknowledge s in a

discovery response that section 120.54 is one of the statutes

that appl y to the rezoning process. Even so, t he School Board

takes the position that its p olicies and chapter 120 do not

govern the redra wing of attendance boundaries. As a

consequence, the Superintendent did not review the Bylaws and

Pol icies or chapter 120 before he established the rezoning

process . As explained by one witness, the School Board ha s not

used formal rulemaking in prior re zoning plans , and it was its

intention to follow usual past practice.

10 . The Superintende nt opted to follow the same rezoning

process used since at least 2004 or 2005 . Under this process, a

boundary committee , advisory in nature, is appointed for the

p urpose of developing multiple boundary maps and then

recommending one of them to the Superintendent. The

Superintendent does not attend the meetings or direct any member

to draw a plan in a particular way. The Superintendent

considers, but is not require d to accept, the committee

recommendation. A parent meeting is also conducted to allow

parents to provide input into the process. A f t er the committee

and parent meeting s are concluded , t he committee submits a

recommendation to the Superintendent , who the n submits a final

recommend a tion to the School Board. By law, t wo adoption

hearings must be conducted by the School Board , which makes the

final decision.

1 1 . A b oundary committee i s comprised of parents, district

staff , and principals of affected scho ols . The committee is

intended to represent the interests of students, parents,

communities, schools, and the district. T he committee for the

West Side Schools consisted of 27 members , three of wh om reside

in Longleaf, a residential community in area 12 where most

Petitioners and Intervenors reside .

1 2 . D uring the rezoning process, a committee will

typically conduct t hree meetings before making its

recommendation. In this case, the Superintendent scheduled a

fourth meeting to be held after the parent me eting so that

parent input could be considered.

1 3 . In developing new school attendance boundaries, the

committee was instructed to follow certain guidelines. Under

these guidelines, a new boundar y should provide socioeconomic

balance, maintain to the extent possible an in - line feeder

pattern, provide for future growth and capacity, provide safe

and efficient transportation, maintain subdivision integrity,

and consider long - term school construction plans. See Pet'r

Ex. 23. The committee was also giv en "lots of information" at

the first meeting including, among other things, existing and

projected enrollments for each school for school years 2016 - 2017

and 2017 - 2018 ; five and ten - year projected enrollments for each

school ; long - term school construction plans; future growth

potential in the area; minority , low income , and special

education population by area ; and total population history for

each school.

1 4 . The School Board employs a full - time public

information officer who directs and coordinates the

dissemination of information to the public. This is

accomplished through social media (Twitter, Instagram, and

Facebook) and a School Board website accessible to the public .

In addition, a special zoning website was established during the

rezoning proces s . The website and social media profiles are

identified on the inside front cover of the student planner

issued to every student at the beginning of the school year.

1 5 . The district also operates a program known as School

Connect, which is capable of sending telephone messages, emails,

and text messages to the parents. School Connect was used to

make automated telephone calls to the contact te lephone number

listed on a student's information card informing the parent s of

the time and date of the parent meeting . See Resp. Ex. 6. All

parents with a valid telephone number received a call, although

some parents either did not personally answer the call or d id

not re member its substance . School Connect also sent emails and

texts to parents , including noti fication of the plan the

Superintendent was going to recommend to the School Board.

16. Signs and notices regarding the rezoning were not

posted in the neighborhoods before any meeting . However,

multiple notices were posted on social media and websites , and

text messages , emails, and telephone messages were sent to

parents . This constituted substantial compliance with the

requirement that notice of rulemaking be "post[ed] in

appropriate places so that those particular classes of

persons to whom the action is directed may be duly noticed. "

§ 120.81(1)(d)3., Fla. Stat.

1 7 . Besides telephone calls, text messages, emails, and

social media, o n November 7 , 2016, letters were sent to affected

parents informing them of the parent meeting on November 14 ,

2016 . See Resp. Ex. 3. Although the final plan was not known

at that time, t he letter put parents on notice that Mitchell and

Seven Springs were overcrowded due to the influx of new homes

being built in that area .

1 8 . M any parent s knew as early as Aug ust 2016 that a new

rezoning plan was going to be adopted that fall, but none

believed area 12 would be affected due to its proximity to

Mitchell and Seven Springs. This mistaken belief probably

explains why some parents did not diligently follow the proc ess

until the parent meeting or even the School Bo ard meetings when

a final plan was adopted. However , one Intervenor formed a

group known as "Delay West Pasco Rezoning" in August 2016 in an

effort to prevent area 12 from being moved. There is no

evidenc e that any parent or homeowner association requested that

they be provided advance written notice of any meeting during

the entire process .

1 9 . On September 6, 2016, the procedures for s chool

rezoning were announced on Facebook and other social media. A

press release for various media was issued on September 14,

2016. The press release provided the day , time, and location of

each boundary committee meeting . The press release was also

published on the School Board's Twitter account.

20 . The boundary com mittee for the West Side Schools was

appointed on S eptember 16, 2016.

2 1 . C ommittee meetings were conducted on October 5,

October 26, and November 7, 2016. These meeting s were open to

the public, and all were live - streamed on YouTube.com . , although

som e parents say portions of the broadcast were inaudible. The

meetings were also broadcast live on the School Board's Facebook

account, and a link to the broadcast was published on its

Twitter account . Only a round 30 parents attended each meeting.

2 2 . M embers of the public who attend the committee

meetings are observers only, they do not have in put into the

meeting process , and they are not allowed to participate in

committee discussions. However, t here is nothing to prevent an

observer from asking a me mber a question before or after the

meeting, or in another setting. As noted above, three committee

members lived in Longleaf where most Petitioners and Intervenors

reside , and members were encouraged to speak with neighbors and

homeowner associations to keep them updated on what was

occurring . All documents considered by the committee were

p osted on the School Board and special zoning website s .

Finally, minutes for each meeting , which summarized decisions of

the committee and gave notice to parents as t o which path the

committee was taking , were published before the following

meeting.

2 3 . On November 14, 2016, " hundred s" of parents attended a

parent meeting , which lasted more than three hours . Before the

meeting began, parents were told which options were still being

considered by the committee . Although c ommittee members were

present , Petitioners stated that questions were not answered by

th e members , and the entire meeting consisted of comments by the

parents. So that their input would be considere d, the

Superintendent scheduled a fourth committee meeting on

November 17, 2016.

2 4 . F ive plans were considered by the committee at its

fourth meeting , but t here was no consensus on which plan to

adopt. B y a 13 - to - 12 vote, with two members absent, th e

committee recommended approval of a new plan known as P lan 4A 2 ,

which was posted on the website and social media the same day.

Under the p lan, effective school year 2017 - 2018, area 12

students (a nd others) would be reassigned to River Ridge .

Notably, P lan 5A2, the option with the second most votes,

garnered 12 votes and is "very similar" to P lan 4A 2 . It also

reassigned area 12 students to River Ridge. The River Ridge

joint campus is approximately eight or nine miles north of

area 12 , while Mitchell and Seven Springs , also a joint campus,

are only two or three miles south of area 12. The

Sup erintendent concurred in the recommendation to approve

P lan 4A 2 with one modification which did not affect area 12 :

students in areas 1 through 4 , previously un affected , would be

reassigned to Gulf Middle School and Gulf High School.

2 5 . In developing the new plan, t he committee followed the

guidelines given to it at the outset of the process. The new

plan took into account future growth and capacity of the

s chools. Consideration was also given to providing

socioeconomic balance. Subdivision integrity was maintained, in

that the entire Longleaf community was re assigned to the same

schools. During the development of the plan, t he committee had

available the long - term school construction plans of the

district. The district transportation coordinator was a member

of the committee and ensured that the new plan provided safe and

efficient transpo rtation. Finally, because of o vercrowding and

anticipated growth i n the area, the school feeder pattern

structure , which now directs area 12 students to Mitchell and

Seven Springs, w as necessarily impacted . O n balance , h owever ,

the guidelines were observed.

2 6 . A few alternative plans were submitted by parents

during the committee process , including at least one plan

prepared by an unidentified observer that was left on the

committee's table before a meeting . The alternative plan s are

not of record.

2 7 . Pursuant to other district polic ies , c ertain

exception s apply to the new area 12 attendance boundar y .

S tudent s who are rising senior s at Mitchell are grandfathered

and remain at Mitchell. S tudent s approved under the School

Choice program to remain in Mitchell or Seven Springs may also

do so . To take advantage of thi s program, a student must give a

valid reason , such as hardship, separation of siblings,

participati on in certain extracurricular activities, or

acceptance into the Mitchell Academy for Medical Arts Program ,

which is not offered at River Ridge . Many Petit ioners and

Intervenors have applied for School Choice to remain at Mitchell

or Seven Springs, but there is no guarantee their requests will

be approved.

2 8 . Notice of the Superintendent's recommended plan ,

including the map, was posted on the Board's webs ite seven days

before the first School Board meeting. In addition, the same

information was posted on the district's Twitter and Facebook

accounts, and emails were sent to those parents who provided an

email address . Finally, the Superintendent published a letter

on December 12, 2016, explaining his reasons for recommending

Plan 4A2. It is fair to say that all parents had actual notice

well before the first School Board meeting that area 12 was

being reassigned to different schools .

29 . On November 20 , 2016, a P ublic N otice (Notice) was

published in the Tampa Times advising that a first reading on

the new school attendance boundaries would be conducted by the

School Board on December 20, 2016, and that final action would

be taken at a second meeting on January 17, 2017. The Notice

read in relevant part as follows:

PUBLIC NOTICE

INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL

BOUNDARIES FOR THE 2017 - 2018 SCHOOL YEAR

The District School Board of Pasco County

intends to change attendance boundar ies for

the 2017 - 2018 school year for the schools

listed below:

* * *

West Pasco County Schools

Chasco Middle, Gulf Middle, Paul R. Smith

Middle, River Ridge Middle, Seven Springs

Middle, Anclote High, Gulf High, J.W.

Mitchell High, Ridgewood High, River Ridge

High

First reading on this matter is scheduled

for the regular meeting of the District

School Board of Pasco County on December 20,

2016 .

School Board action on this matter is

scheduled for the regular meeting of the

Dis trict School Board of Pasco County on

January 17, 2017 .

30 . Even though none of Petitioners or Intervenors read

the Notice , they now complain that it d oes not contain a

detailed summary of the new boundary lines, a reference to the

grant of rulemaking au thority, a reference to the statute being

implemented, a summary of the estimated regulatory costs, or the

other details normally included in agency rulemaking pursuant to

section 120.54. There is, however, no evidence that the parents

were prejudiced by a lack of more information in the Notice.

With the exception of those parents who voluntarily chose not to

attend, virtually all other parents who were not working or were

not out of town had actual notice and attended the two School

Board meetings.

3 1 . Sensing that Plan 4A2 was going to be selected, on

December 17, 2016, with the assistance of a committee member who

happened to be an attorney, Petitioners James Stanley and

Cecilia Loyola, husband and wife, drafted a letter to the

Superintendent and Schoo l Board Chairman. See Pet'r Ex. 2. The

letter stated the proposed rule (new attendance boundaries) was

arbitrary and capricious. It requested (a) a workshop pursuant

to section 120.54(2)(c) mediated by a neutral party, and (b) the

attendance of committe e members at the workshop to answer

questions. The letter also asked that if a workshop was not

conducted, the rulemaking process be suspended and a separate

draw - out proceeding be conducted pursuant to sections 120.569

and 120.57. Finally, the letter as serted that by limiting each

speaker to only " one or three minutes, " the School Board was

violating section 120.54(3)(c). This was the first and only

time that a parent invoke d a chapter 120 rulemaking requirement

in an effort to slow or derail the rezoni ng process.

3 2 . The letter was delivered to the Superintendent and

Board Chairman on the day of the meeting. By that late date,

the request w as untimely, and the Superintendent had

insufficient time to prepare a written response stating why a

workshop wa s unnecessary, as required by section 120.54(2)(c).

See § 120.54(3)(c)2., Fla. Stat. (a person must " timely " assert

and affirmatively demonstrate to the agency that the rulemaking

proceeding does not protect his substantial interests). N o

draw - out or wor kshop was conducted , and except for the

Superintendent's reply letter, discussed below, no formal ruling

was made by the School Board at the meeting on the untimely

draw - out and workshop request s .

3 3 . On February 17, 2017, the Superintendent replied to

th e Stanley/Loyola letter. See Pet'r Ex. 3. The three - page

letter outlined the multi - step rezoning process that was

followed by the School Board , the efforts to solicit and

facilitate parent participation, and the numerous types of

notice given to the pare nts. Thus, he concluded that a workshop

was unnecessary.

3 4 . At both School Board meetings, members of the public

were allowed to speak. Normally, one hour of public testimony

is permitted for an agenda item, with a three - minute time

limitation for each speaker. Because three sets of attendance

boundary plans were being considered as a single item, this time

was expanded, and each plan was allotted one hour, for a total

of three hours. To accommodate the large turnout of parents

wishing to speak (58) , only 90 seconds was allotted to each

speaker , including those representing groups . Given the time

constraints, not every parent was given the opportunity to

speak. However, 16 speakers who were not allowed to speak at

the first meeting were scheduled to speak first at the second

meeting on January 17, 2017.

3 5 . Committee m embers were not required to attend either

School Board meeting to explain P lan 4A2 or to answer questions

posed by the audience . At this point in the process, the

Superintendent , and n ot the committee, bore the responsibility

of making a final recommendation to the School Board and to

answer any questions members had. A t the close of public

comment on December 20, 2016 , the School Board considered and

approved P lan 4A 2 . However, one B oard member suggested a

modification to P lan 4A 2 , which would delay by one year the

reassignment of students in areas 1 through 4 from Mitchell and

Seven Springs to Gulf High School and Gulf Middle School. In

all other respects, P lan 4A 2 remained the same . Th is suggestion

was to be reviewed by the Superintendent prior to the second

meeting the following month .

3 6 . On January 17, 2017, the day of the second School

Board meeting, the Superintendent sent a memorandum to School

Board members regarding the rezoning issue. Among other things,

he stated that "[t]he establishment of school attendance

boundaries is authorized by Section 1001.42, Florida Statutes.

In addition, the Administrative Procedures [sic] Act requires

that the District publish a Notice o f Intent to Adopt a Rule

twenty - one days prior to the public hearing. The first reading

was held on December 20, 2016. " Pet'r Ex. 19.

3 7 . On January 17, 2017, the day of the second School

Board meeting, the Superintendent tweeted on his Twitter accoun t

that he intended to recommend the adoption of Plan 4A2, as

modified. See Pet'r Ex. 9. After public comment, f inal action

was taken by the School Board and Plan 4A2 was adopted as the

new school attendance boundaries for the West Side Schools.

Unlike t ypical agency rulemaking, the adopted plan is in the

form of a map, rather than a numbered rule. See Resp. Ex. 16.

3 8 . The additional cost for parents to transport their

children to a new school is highly speculative, and no evidence

was adduced to sho w that the new plan would increase regulatory

costs, directly or indirectly, more than $200,000.00 within one

year after implementation. See § 120.54(3)(a)b., Fla. Stat.

Therefore, a statement of estimated regulatory costs for

implementing the new bounda ry lines was not prepared by the

School Board, and none was requested n or submitted by a third

party .

39. A s required by section 120.54(3)(e) 6 ., a copy of the

new boundaries was filed with the "office of the agency head"

after it was adopted at the se cond meeting.

40 . The parties stipulated that had the students who are

named as parties testified at the final hearing, they would have

reiterated the allegations set forth in the Second Amended

Petition and Motion for Leave to Intervene. These include

allegations that the students will be emotionally affected by

the transfer ; they will be separated from friends, teachers,

counselors , and certain extracurricular programs in which they

now participate; the change will limit the ir ability to walk or

bike to school; and they will have increased travel time to

attend the new schools.

4 1 . The parents expressed a wide range of concerns with

the new attendance boundaries. Many wondered why area 1 3 , which

lies just west of area 12 , was not reassigned to River Ridge .

However, the committee decided early on to use State Road 54 as

a demarcation line, sending students who reside north of State

Road 54 to River Ridge. Area 12 lies north of the roadway,

while area 13 is just south of the line. The reassignment of

area 12 students was based on this consideration and is not

ill ogical or un reasonable.

4 2 . Most parents purchased their homes with the

understanding that their children would always be attending the

schools located closest to their homes. The new school

assignments will result in longer bus rides, inconvenience for

parents who drive their children to school in the morning, or

pick them up after regular school hours if the y participate in

extracurricular activities . The parents also noted that driving

on Starkey Boulevard (Starkey) is the shortest route to the new

schools. The y described th e route as unsafe and one that

requires them to make a difficult left turn onto Starkey when

leaving Longleaf . There are, however, other routes to the new

school , and the district transportation coordinator established

that student safety is a top priority .

4 3 . Several parents, including one who is a realtor,

expressed a concern that the value of their homes would decline

since buyers would not choose to purchase a home if their

children could not attend the schools closest to their homes.

However, the record gives no indication that any homes have been

offered for sale, any homes have been sold at a distressed

price , or any homeowners have not been able to sell the ir homes

due to the proposed rezoning.

4 4 . P arents are concerned that River Ridge does not have

the same clubs , extracurricular activities , or educational

opportunities that are found in Mitchell and Seven Hills. The

record shows, however, that both sc hools are ranked as "B"

schools ; they have the same core academic and educational

programmatic offerings; they both have advanced offerings for

students who excel; they both have magnet programs; and both are

accredited by AdvancED/Southern Association of Colleges and

Schools. There is no evidence that classes currently available

at Mitchell and Seven Hills will not be available at River Ridge

this fall, or even that such classes will remain available to

the students at Seven Springs and Mitchell. In summ ary, t here

is no evidence that the students will not have the same

educational opportunities at the River Ridge schools as they now

receive at Mitchell and Seven Springs.

4 5 . Some students visit doctors and dentists who have

offices near Mitchell and Seve n Springs . Having to travel from

River Ridge to those offices will be more time - consuming and

inconvenient. This is not, however, a ground to invalidate a

rule.

4 6 . It was contended that some parents p rovide a false

address to the School Board in order to have their child ren

enrolled in Mitchell and Seven Springs , rather than the ir

assigned school s under the current school attendance plan.

Petitioners assert that if all address es are verified, those

students can be removed, and the overcrowding at Mitch ell and

Seven Springs alleviated . However, no evidence to support this

assertion was produced .

4 7 . Some parents complained that emails requesting answers

to questions that were sent to the Superintendent or planning

staff during the process were never a nswered. Although the

Superintendent instructed staff to reply to all emails, if

hundreds or thousands of emails were received by staff during

the process, it is likely that some were not answered.

CONCLUSIONS OF LAW

4 8 . A threshold issue in this proceed ing is whether the

redrawing of attendance boundaries is a rule. Despite conceding

that section 120.54 applies to school rezoning, and having made

numerous references to rulemaking throughout the process, the

School Board contends assigning students to sc hools constitutes

legislative action taken pursuant to section 1001.41(6) , and not

rulemaking . It asserts that Petitioners' only remedy is to file

an action in circuit court .

4 9 . The power to adopt new boundary lines is found in

section 1001.41(6) , whi ch provides as follows:

The district school board, after considering

recommendations submitted by the district

school superintendent, shall exercise the

following general powers:

* * *

(6) Assign students to schools.

* * *

50 . To implement this duty, s ection 120.81(1)(a) provides

in part that "district school boards may adopt rules to

implement their general powers under s. 1001.41." Also, section

1001.41(2) authorizes district school boards to "[a]dopt rules

p ursuant to ss. 120.536(1) and 120.54 to implement the

provisions of law conferring duties upon it to supplement those

prescribed by the State Board of Education and the Commissioner

of Education."

5 1 . The term "rule" is defined in section 120.52(16) to

me an :

E ach agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

no t specifically required by statute or an

existing rule. The term also includes the

amendment or repeal of a rule.

52. As the First District Court of Appeal explained many

years ago, " [ t ] he breadth of the definition in section

120.52(1[6]) indicates that the legislature intended the term to

cover a great variety of agency statements regardless of how the

agency designates them." State Dep't of Admin. v. Harvey , 356

So. 2d 323, 325 (Fla. 1st DCA 1977).

53. An agency statement can be a declaration, expr ession,

communication , or even a map . The map reflects the School

Board's position with regard to school attendance boundaries,

and there is little or no room for discretionary application.

It has general applicability in that it applies uniformly to

stu dents who attend West Side Schools and reside within

areas 1 through 35 , and it implements the general power to

assign students to schools . The map is a rule , as defined by

section 120.52(16).

54. This conclusion is consistent with a long string o f

administrative decisions , which hold that the drawing of school

attendance boundaries is a rule . See Fischer v. Orange Cnty.

Sch. Bd. , Case No. 07 - 2760RP (Fla. DOAH Apr. 11, 2008); Citrus

Oaks Homeowners Ass'n, Inc. v. Orange Cnty. Sch. Bd. , Case

No . 05 - 0160RP (Fla. DOAH Aug. 1, 2005), aff'd 942 So. 2d 897

(Fla. 4th DCA 2006); SC Read, Inc. v. Seminole Cnty. Sch. Bd. ,

Case No. 04 - 4304RP (Fla. DOAH Mar. 17, 2005) , aff'd 951 So. 3d 3

(Fla. 5th DCA 2007) ; Plantation Residents' Ass'n, Inc. v. Sch.

Bd. of Broward Cnty. , Case No. 82 - 0951RP (Fla. DOAH July 14,

1982) , aff'd 424 So. 2d 879 (Fla. 1st DCA 1982) , pet. for rev.

denied , 436 So. 2d 100 (Fla. 1983) ; White v. Sch. Bd. of Leon

Cnty. , Case No. 81 - 1608RP (Fla. DOAH Aug. 10, 1981); McGill v.

Sch. Bd. of Le on Cnty. , Case No. 80 - 0775RP (Fla. DOAH July 11,

1980) . See also Polk v. Sch. Bd. of Polk Cnty. , 373 So. 2d 960,

961 (Fla. 2d DCA 1979)("[b]y definition, the action of the

school board in adopting the attendance plan constituted the

making of a rule").

55. The School Board contends , however, that chapter 1001,

which replaced former chapter 230 in 2002 , implicitly abrogates

the requirement that school boards assign students to schools

through rulemaking.

56. A dministrative controversies concerning sch ool

attendance zones began in the late 1970s . Under the statutory

scheme in place at that time , schools boards were granted the

general power to adopt student "attendance areas" pursuant to

section 230.2 3 ( 4 ) (a) , Florida Statutes (1979) . To implement

this duty , school boards were authorized to " adopt rules and

regulations. " See § 230.22 (2) , Fla. Stat. (1979) .

57. This statutory scheme continued, with minor

modifications and renumbering , until 2002, when the L egislature

repealed chapter 230 and replaced it with new chapter 1001.

Except for renumbering and minor changes in the text , the

rezoning process is essentially the same. Under existing law,

school boards still have the general power to "assign students

to school " pursuant to section 1001.41(6), a nd to implement that

power by adopting rules pursuant to sections 120.81(1)(a) and

1001.41(2) . Nothing in the c urrent statutory scheme or

legislative history suggests that the L egislature intended to

"implicitly abrogate" the process of changing boundary lines by

rule making in favor of legislative action. The contention is

rejected.

5 8 . In its PFO, t he School Board contends that if the new

boundary is a rule, any challenge would be against an existing

rule , rather than a proposed rule, as the School Bo ard adopted

the boundaries at its January 17 meeting , and it became

effective on that date .

59. Resolution of this issue is significant because it

determines which party has the burden of proof and whether the

challenged rule is entitled to a presumptio n of validity in this

proceeding. The School Board's argument is based on language in

section 120.54(3)(e)6., which provides that if an agency does

not have to file its rule with the Department of State, the rule

become s effective "when adopted by the age ncy head." However,

section 120.54( 3 )(e)6. c annot be squared with the periods

established in section 120.56(2)(a) for challenging a proposed

rule. Under the latter statute, a proposed rule can be

challenged "within 10 days after the final public hearing is

held on the proposed rule as provided in s. 120.54(3) (e)2."

The Petition in this case was filed three days after the second

School Board meeting. If the proposed rule became effective

upon adoption, as the School Board contends, Petitioners and

other substantially affected persons would have been denied

their right to challenge the rule within the period provided by

section 120.56(2)(a). Th e construction of the statute in this

manner would produce an absurd result and be inconsistent with

the inten t underlying chapter 120 to allow wide citizen

participation . The Petition is properly framed as a challenge

to a proposed rule.

60 . Petitioners and Intervenors have the burden of proving

by a preponderance of the evidence that they are substantially

affe cted by the proposed rule. See § 120.56(2)(a), Fla. Stat.

The School Board then has the burden to prove by a preponderance

of the evidence that the proposed rule is not an invalid

exercise of delegated legislative authority as to the objections

raised. Id.

6 1 . To have standing to challenge a proposed rule, the

challenger must be "substantially affected" by the proposed

rule. § 120.56(2)(a), Fla. Stat. A person is substantially

affected if the proposed rule is or will be applied to that

person as a b asis for the agency action. S tanding is not

predicated on showing that the challenger would prevail on the

merits of the proceeding. It is sufficient to show that the

challenger was subjected to the rule as a basis for the School

Board's action. Except for the four students named in Finding

of Fact 4 , each parent/student presented evidence to show they

have substantial interests that could be affected by the

proposed rule. Therefore, they have standing to challenge the

new boundaries. See , e.g. , Abbott Labs. v . Mylan Pharms. ,

15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009); Cole Vision Corp. v.

Dep't of Bus. & Prof'l Reg. , 688 So. 2d 404, 407 (Fla. 1st DCA

1997)(recognizing "a less demanding standard applies in a rule

challenge proceeding than an action at law, and that the

standard differs from the 'substantial interest' standard of a

licensure proceeding") . See also Cortese v. Sch. Bd. of Palm

Bch. Cnty. , 425 So. 2d 554, 555 (Fla. 4th DCA 1982) ( changing of

school boundaries affect s the substantial inte rests of parents

of children ).

6 2 . Section 120.52(8) defines "invalid exercise of

delegated legislative authority" to mean:

[A]ction that goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an inv alid exercise of delegated legislative

authority if any one of the following

applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant o f

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1; [or]

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A g rant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the en abling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency h ave the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

6 3 . The unlettered, "flush left" paragraph at the end of

section 120.52(8) is not implicated in this proceeding. See

§ 120.81(1)(a), Fla. Stat. ("Notw ithstanding s. 120.536(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.") .

6 4 . Of the lettered paragraphs in section 120.52(8),

Petitioners ' challenge to the propo sed rule is based upon

paragraphs (a), (d), (e), and (f).

Compliance with Rulemaking Procedures

6 5 . Although t he Petition raises 19 procedural grounds,

upon which Petitioners argue that the proposed rule is invalid

under section 120.52(8)(a) , in the main, these grounds boil down

to alleged procedural errors during the rule development and

rule adoption phases of rulemaking .

66. The School Board is an agency for purposes of

chapter 120. See § 120.52(1)( a), Fla. Stat. Educational units

are exempted from filing documents with the Joint Administrative

Procedure Committee and may publish their notices in a local

newspaper rather than the Florida Administrative Register . See

§ 120.81(1)(d) and (e), Fla. Stat. And they are not required to

include the full t ext of the rule in notices. Id. However,

they are not exempt from any other step s in the rulemaking

process.

6 7 . The rulemaking process requires notice and opportunity

for public input during the rule development phase and rule

adoption phase. See § 12 0.54(2) and (3), Fla. Stat.

6 8 . Petitioners contend that proper notice of rule

development was not made , as required by section 120.54(2) (a) .

However, n otice procedures for educational units are governed by

section 120.81(1) (d) , and not section 120.54. To comply with

the statute, the School Board must provide notice :

1. By publication in a newspaper of general

circulation in the affected area;

2. By mail to all persons who have made

requests of the educational unit for advance

notice of its proceed ings and to

organizations representing persons affected

by the proposed rule; and

3. By posting in appropriate places so that

those particular classes of persons to whom

the intended action is directed may be duly

notified.

6 9 . Ru le development must have occurred during October and

November 2016 when four committee meetings and one parent

meeting were conducted. Although not labeled as such, these

meeting s could also constitute a workshop. A legal

advertisement for this phase of the process was not published ,

but notice was provided through the School Board's website,

special rezoning website, social media, and School Connect.

There is no evidence that any person requested advance written

notice of rule development meetings. It is fair to conclude

from the evidence that Petitioners and Intervenors had actual

notice of the committee and parent meetings, as most attended or

watched the committee meetings by live streaming , they provided

comments at the parent meeting , or the y voluntarily chose not to

attend . Thus, a failure to properly notice rule development was

harmless error where Petitioners had actual notice of the

process. See Ag. for Health Care Admin. v. Fla. Coal . of Prof 'l

Lab. Org s. , Inc. , 718 So. 2d 869, 873 (Fla. 1st DCA 1994).

70 . An agency "may" hold a workshop on rule development.

§ 120.54(2)(c), Fla. Stat. It "must" hold one "if requested in

writing by any affected person, unless the agency head explains

in writing why a workshop is unnecessary. " Id. In this case, a

written req uest was filed after the rule development phase was

completed, and on the day of the first adoption hearing. Under

these circumstances, it was impossible for the Superintendent to

prepare a reasoned response in a timely fashion. Under any

reasonable inte rpretation of the statute, the request was

untimely , as the statute contemplates that the written request

be filed and considered during the rule development phase, and

not during the adoption phase . Even if the committee and

parent meetings did not cons titute a workshop under section

120.54(2) (c) , t here was no error in failing to conduct one .

7 1 . No requests for advance written notice of the adoption

hearings were submitted by any person . However, Petitioners

contend the newspaper notice for the adop tion hearings was

flawed. The legal advertisement published by the School Board

on November 20, 2016, satisfied the requirement that

"publication [be made] in a newspaper of general circulation in

the affected area." § 120.81(1)(d)1., Fla. Stat. While i t did

not contain a great deal of detail, it was sufficient to put

members of the public on notice that new school boundaries would

be adopted by the School Board at meetings on December 20, 2016,

and January 17, 2017. Moreover, through other types of not ice,

such as letters, emails, telephone calls, and social media,

Petitioners and Intervenors had actual notice of the meetings

and the Superintendent's recommended plan . All parents either

participated in the process to the extent they were able, or

chose not to participate. Any failure to provide constructive

notice was harmless error and was cured by the parents' receipt

of actual notice. See, e.g. , Stuart Yacht Club & Marina , Inc.

v. Dep't of Nat 'l Res . , 625 So. 2d 1263, 1269 (Fla. 4th DCA

1993)( p etit ioner was not prejudiced by lack of direct notice of

agency's proposed rules because it received indirect notice and

it filed a petition challenging the proposed rules ).

7 2 . Petitioners also contend the School Board erred by not

conducting a draw - out pr oceeding after a written request was

filed on December 20, 2016. But section 120.54(3)(c)2. requires

that such a request be "timely" filed with the School Board , and

not hours before the adoption hearing. A ssuming arguendo that

Petitioners satisfied the first part of the statute by

demonstra t ing that " the proceeding [did] not provide adequate

opportunity to protect [their] interests," the request was still

un timely. There was no error in not conducting a draw - out

proceeding.

7 3 . As to any other procedu ral errors not directly

addressed herein , a f ailure to follow all procedural steps does

not necessarily render the rule invalid. Only when the agency

materially fails to follow the applicable rulemaking procedures

or requirements will the rule be declared invalid under section

120.52(8)(a). See, e.g. , Dep't of Health & Rehab. Servs. v.

Wright , 439 So. 2d 937, 940 - 41 (Fla. 1st DCA 1983) (compliance

with procedural aspects of rulemaking process is subject to

"statutory harmless error" rule) ; Stuart Yacht Clu b , supra . The

steps taken by the School Board during the rezoning process

substantially comply with all procedural requirements . Absent a

showing of prejudice by Petitioners , the rule is not invalid

under section 120.52(8)(a).

Vagueness, Inadequate Sta ndards , or Vesting Unbridled

Discretion in School Board

7 4 . Petitioner s contend the proposed rule is vague .

However, the map is not so vague that persons of common

intelligence must guess at its meaning or application.

Petiti oners further contend the rule fails to establish adequate

standards for district decisions and vests unbridled discretion

in the district. Specifically, they assert the rule fails to

contain any district standards governing grandfathering of

students, sch ool choice, or addre ss verification. The purpose

of the rule was only to establish new school attendance

boundaries , and not to address s tandards for grandfathering,

school choice, and address verification . These standards are

found in other policies and were not the subjec t of th e

district's rulemaking. The proposed rule provides sufficient

standards and detail s to guide the rezoning process. The

preponderance of the evidence demonstrates that the proposed

rule establishes adequate standards for agency decisions and

do es not vest unbridled discretion in the School Board. It is

not invalid under section 120.52(8) (d).

A rbitrary and Capricious

75. Petitioners contend the proposed rule is arbitrary and

capricious. "An arbitrary decision is one not supported by

facts or logi c, or despotic." Bd. of Trs. of Int. Impust

Fund v. Levy , 656 So. 2d 1359, 1362 (Fla. 1st DCA 1995). "A

capricious action is one taken without thought or reason or

irrationally." Id. A determination is not arbitrary or

capricious if it is justifiab le "under any analysis that a

reasonable person would use to reach a decision of similar

importance." Dravo Basic Materials Co., Inc. v. State of Fla.,

Dep't of Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

7 6 . The School Board's proposed rule was the product of

thoughtful consideration by the committee and Superintendent

during an extensive rulemaking development process. There is no

credible evidence that the proposed rule is capricious or that

it was taken without thought or reason or irrationa lly. The

rule is not invalid under section 120.52(8)(e).

Statement of Estimated Regulatory Costs

7 7 . Section 120.541(1) governs the preparation and

consideration of statements of estimated regulatory costs. In

this case, Petitioners did not request or s ubmit a lower cost

regulatory alternative to the proposed rule. Likewise, there i s

no evidence that the rule is likely to directly or indirectly

increase regulatory costs in excess of $200,000 .00 in the

aggregate within one year after implementation. The refore,

preparation of a statement of estimated regulatory costs was not

necessary. The rule is not invalid under section 120.52(8)( f).

78. In summary, the map is a rule and is a valid exercise

of delegated legislative authority.

DISPOSITION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that P lan 4A2 , as modified, is a valid exercise of

delegated le gislative authority , as to the objections raised in

the Second Amended Petition , which is denied.

DONE AND ORDERED this 1 3th day of April , 2017, in

T alla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April , 2017.

ENDNOTE S

1/ In their P F O, Petitioners and Intervenors state that four

I ntervenors , Lorenzo Santalasci, Christina Santalasci, Eric

San talasci, and Thomas Pirozzi and Minor Children, have withdr awn

as parties to this action at some point in the proceeding .

However, a notice of voluntary dismissal was never filed, and no

order was entered to confirm their withdrawal. For the sake of

effi ciency, however, the undersigned has treated this

representation in the P F O as a notice of voluntary dismissal and

amended the style of the case to reflect this action.

2/ The exhibit , a 47 - page document labeled as an expert report,

was not provided to o pposing counsel until Petitioners' rebuttal

case on the second day of hearing. The name of the expert

witness sponsoring the exhibit was not disclosed until after the

discovery cutoff date, one working day before the hearing , and

then only as a fact witne ss . Her testimony and exhibit were

excluded as being untimely .

COPIES FURNISHED:

Robert Anthony Stines, Esquire

Phelps Dunbar LLP

Suite 1900

100 South Ashley Drive

Ta mpa , Florida 3 3602 - 5304

(eServed)

Dennis J. Alfonso , Esquire

McClain, Alfonso, N athe, and DiCampli, P.A.

Post Office Box 4

Dade City , Florida 33526 - 0004

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Redd ick, Chief

A nya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Kurt S. Browning, Superintendent

Pasco County School Board

7227 Land O' Lakes Boulevard

Land O' Lakes, Florida 34628 - 2826

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proc eedings are commenced by filing the original

notice 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 District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.