17-000629RP Shari Burke, Tara Burke, Mark Burke, Sharon Burke, Sophia Osorio, Sarah Osorio, Carolina Cordona-Lilly, Hunter Nodine, Katrina Nodine, Julie Ann Nodine, Niah J. Stone, Larondar A. Stone, Cameron Darby, Lucas Darby, Et Al vs. School Board Of Pasco County Status: Closed DOAH Final Order on Thursday, April 27, 2017.

Summary: Now school attendance boundary is a rule; Petitioners failed to show it is an invalid exercise of delegated legislative authority,

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARI BURKE, TARA BURKE, MARK

BURKE, SHARON BURKE, SOPHIA

OS O RIO, SARAH OSORIO, CAROLINA

CORDONA - LILLY, HUNTER NODINE,

KATRINA NODINE, JULIE ANN

NODINE, NIAH J. STONE, LARONDAR

A. STONE, CAMERON DA RBY, LUCAS

DARBY, JAMES DARBY, WENDY DARBY,

ZOE ALYSSA WOOD, AND DOUG WOOD,

Petitioner s,

vs. Case No. 17 - 0629RP

SCHOOL BOARD OF PASCO COUNTY,

Respondent .

__ _____________________________/

FINAL ORDER

D. R. Alexander, an Administrative Law Judge of the

Division of Administrative Hearings , conducted a final hearing

in this case on March 15, 2017, in Land O' Lakes, Florida.

APP EARANCES

For Petitioner s : Robert Anthony Stines, Esquire

Phelps Dunbar LLP

Suite 1900

100 South Ashley Drive

Ta mpa , Florida 33602 - 5304

For Respondent : Dennis J. Alfonso, Esquire

Knute J. Nathe, Esquire

Carl J. DiCampli, 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 school

attendance boundaries for four midd le schools and four high

schools ( East Side Schools) located in eastern Pasco County

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

invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

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

(School Board or district ) approved a change of school

attendance boundarie s for East Side Schools for school year

2017 - 2018 . On January 2 6 , 2017, Petitioners , 22 students and/ or

their parents , filed a Petition Challenging Validity of Proposed

Rule (Petition) , as later amended, contending the new boundary

for the Ea st Side Schoo ls is an invalid exercise of delegated

legislative authority . As a basis for relief, it relies

primarily on procedural errors allegedly committed by the

district during the rezoning process. T wo Petitioners were

later authorized to withdraw as parties. Because Francessca

Huber was una vailable for deposition, the parties stipulated

that she and her daughter were no longer parties.

At the hearing, the parties agreed that one parent, either

the mother or father, could testify on behalf of the entire

family. Thereafter, Petitioners presented the testimony of s ix

parents . Petitioners' Exhibits 1 through 16 were accepted in

evidence. The School Board presented the testimony of four

witnesses. School Board Exhibits 1 through 30 were accepted in

evidence. Ex hibit 28 is the deposition testimony of

Superintendent Kurt S. Browning. The four - volume Transcript in

Case No. 17 - 0495RU , which involved the rezoning of the

district's West Side Schools, was made a part of this record.

A two - volume Transcript of the proc eeding was filed.

P roposed final orders (PFOs) were filed by Petitioners and 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 se ctions 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 d rawing school attendance boundaries. At

issue here is an area that encompasses the East Side Schools,

comprised of around 40 designated areas, all east of the

Sunshine Parkway or Interstate 75 , in which f our middle schools

and f our high schools are locate d .

3. Petitioners are students or parents who reside in the

Country Walk community in area 16. Students in area 16 are

currently assigned to Wiregrass Ranch High School (Wiregrass)

and Dr. John Long Middle School (John Long) . W ith the

exceptions cited below, under the new attendance plan, area 16

students will be reassigned to Thomas E. Weightman Middle School

(Weightman) and Wesley Chapel High School (Wesley Chapel)

beginning in school year 2017 - 2018. Only the rezoning for

area 16 is being challeng ed in this case.

4 . Sarah Osorio is a student in the fourth grade and is

unaffected by the boundary change. Lucas Darby is a student in

the first grade and is unaffected by the boundary change.

Lyric Hunter is a student in the second grade and is unaff ected

by the boundary change. Zoe Alyssa Wood is a student in the

11th grade ; as a rising senior , she will be allowed to remain in

Wiregrass . Katrina Nodine is currently in the fifth grade and

is already scheduled to change schools at the end of the scho ol

year as a result of her graduation from elementary school.

Cameron Darby is currently in the eighth grade and is already

scheduled to change schools at the end of the year as a result

of his graduation from middle school. The parents of these

students are also unaffected by the new plan .

5 . The County is experiencing an increase in population

caused by "intense" new residential development in the eastern

part of the County. As a result, enrollment in most East Side

S chools ha s exceeded capacity. I n school year 2016 - 2017,

Wiregrass exceeds capacity by 50.4 percent, while John Long

exceeds capacity by 40.6 percent. If no changes are made, the

two schools are projected to be operating at approximately

1 54.2 and 1 47 percent capacity , respectively , in s chool year

2017 - 2018 . In contrast, Wesley Chapel and Weightman, while

exceeding their permanent capacity , are operating at less

capacity than Wiregrass and John Long. The district is expected

to open a new combined middle - high school (Cypress Creek) in

A ugust 2017, but the student population must still be

redistributed to address the capacity issue in Wiregrass and

John Long.

6 . Because of anticipated growth in th e County, and

existing disparities in school enrollment, in August 2016, the

Superintenden t instructed his planning staff to begin the

process of developing a plan for amending school attendance

boundaries , including the East Side Schools . He further

directed that a recommendation be formulated in time for the

School Board to approve a new pla n 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 boundar y 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 another school, i.e., in this

case their former school .

7 . The School Board has adop ted 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. a t 1 . The policy

spells out in detail the procedural requirements for adopting

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

hearing, preparation of a rulemaking record, School Board

action , and notices . Id. at 2 - 3. The policy also des cribes how

a substantially affected person may challenge a proposed policy.

Id. at 4.

8 . Reference to a "rule" and chapter 120 was made in

various announcements, notices, and statements throughout the

rezoning process. Even so, the School Board takes the position

that its policies and chapter 120 do not govern the redrawing of

attendance boundaries. As a consequence, the Superintendent did

not review the Bylaws and Policies or chapter 120 before he

began the rezoning process.

9 . The Superintende nt opted to use the same rezoning

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

boundary committee , advisory in nature, is appointed for the

purpose of developing multiple boundary maps and then

recommending one of them to the Superintendent . The

Superintendent does not attend the committee meetings or direct

any member to draw a plan in a particular way. He considers,

but is not required to accept, the committee recommendation.

A parent meeting is also conducted to allow parents to provide

inp ut into the process. A fter the committee and parent meetings

are concluded, the committee submits a recommendation to the

Superintendent, who then submits a final recommendation to the

School Board. By law, t wo adoption hearings must be conducted

by the School Board , which makes the final decision.

10 . A b oundary committee i s comprised of two parents from

each affected school , district staff , and principals of affected

schools . The committee is intended to represent the interests

of students, parents, communities, schools, and the district.

The committee for the East Side Schools consisted of 21 members.

11 . D uring the rezoning process, a committee will

typically conduct t hree meetings before making its

recommendation. In this case, the Superinten dent scheduled a

fourth meeting to be held after the parent meeting so that

parent input could be considered.

12. In developing new school attendance boundaries, the

committee was instructed to follow certain guidelines. Under

these guidelines, a new b oundar 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 constr uction plans. See Pet'r

Ex. 11 . The committee was also given extensive data 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 scho ol; 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 3 . 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 by the public .

In addition, a special zoning website was estab lished during the

rezoning process . 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 4 . The district also operates a program known as Sch ool

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 telephone number

listed on a student's information card informing the parents o f

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, listen

to the recorded message, or remember its substance. School

Con nect also sent emails and texts to parents, including

notification of the plan the Superintendent was going to

recommend to the School Board.

1 5 . Signs and notices regarding the rezoning were not

posted in the Country Walk neighborhood before any meeting.

However, multiple notices were posted on social media and

websites, and text messages, emails, and telephone messages

were sent to the parents. This constituted substantial

compliance with the requirement that notice of rulemaking be

"post[ed] in appro priate 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 6 . Besides telephone calls, text messages, emails, and

social media, on November 8 , 2016, the Superintendent se nt a

letter to affected parents informing them of the parent meeting

on November 29 , 2016. See Resp. Ex. 3 . The letter noted that

attendance boundary lines for East Side Schools would be redrawn

to "relieve crowding" at those schools , and it included the new

proposed boundary lines being considered , along with reference

to a website where more details could be found. Th rough School

Connect, th e School Board then sent parents reminder

notifications via telephone and email.

1 7 . All Petitioners acknowledge d receiving some form of

notice of the process during the fall of 2016 , and all had

actual notice well in advance of the last committee meeting.

Some parents attended committee meetings , the parent meeting, or

spoke at both School Board meetings. During this same period of

time, parents sent emails to the School Board or Superintendent

expressing their views on rezoning.

1 8 . On September 6, 2016, the procedures for s chool

rezoning were announced on Facebook and other social media. A

press release for va rious media was issued on September 1 3 ,

2016. The press release announced the appointment of the

boundary committee and provided the day , time, and location of

each committee meeting . The press release was also published on

the School Board's Twitter acc ount. On October 3, 2016, a n

informational video regarding the rezoning process and featuring

the Superintendent and district Planning Director was published

on the School Board website and Twitter and Facebook accounts.

1 9 . C ommittee meetings were condu cted on September 16,

September 29, October 20, and December 2, 2016. These meeting s

were open to the public, and all were live - streamed on

YouTube.com. Except for the last meeting, very few parents

attended the me eting s .

20 . 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 member a question before o r after the

meeting, or in another setting. C ommittee members were

encouraged to speak to the parents to keep them updated on what

was occurring. All documents considered by the committee were

posted on the School Board and special zoning websites. M inu tes

for each meeting, which summarized decisions of the committee

and gave notice to parents as to which path the committee was

taking, were published before the following meeting.

2 1 . On November 29 , 2016, hundred s of parents , including

four of the six who testified at hearing, attended a parent

meeting . So that parent input would be considered, the

Superintendent scheduled a fourth committee meeting on

December 2, 2016.

22 . Four rezoning plans were considered by the committee ,

all addressing the o vercrowding problem in different ways . On

December 2, 2016, by a 16 - to - 5 vote, the committee recommended

approval of Option 20, which did not affect area 16. The plan

with the second most votes, Option 13, supported by district

staff, reassigned students in area 16 to Wesley Chapel and

Weightman . The new schools lie north of Country Walk , but are

a pproximately the same distance from Country Walk as are

Wiregrass and John Long , which lie directly south of area 16.

23 . The Superintende nt chose not to ac cept the committee's

recommended option. Instead, he chose to recommend Option 13 to

the School Board for adoption. This decision was reached after

consultations with the district Planning Director. The only

difference between the two Options is that Op tion 20 reassigns

areas 8, 9, 11, and 12 to Wesley Chapel and Weightman, leaving

areas 16, 17, 20, and 21 unchanged, while Option 13 reassigns

areas 16, 17, 20, and 21 to the new schools, leaving areas 8, 9,

11, and 12 unchanged.

24. In developing Option 13 , the committee and

Superintendent followed the guidelines established at the outset

of the process. Option 13 takes into account future growth and

capacity of the schools. Consideration is also given to

providing socioeconomic balance. Subdivision in tegrity is

maintained, in that the entire Country Walk community is

assigned to the same schools. During the development of this

option, the committee had available the long - term school

construction plans of the district. The transportation director

was a member of the committe e and provided assurance that the

new plan provides safe and efficient transportation. Finally,

because of overcrowding and anticipated growth in the area, the

school feeder pattern structure, which now directs area 16

student s to Wiregrass and John Long, was necessarily impacted.

On balance, however, the guidelines were observed.

2 5 . Pursuant to other district policies, c ertain

exception s apply to the new attendance boundar y . S tudent s who

are rising senior s at Wiregrass are gran dfathered and remain at

Wiregrass. S tudent s who are approved under the School Choice

program to remain in Wiregrass or John Long may do so . To take

advantage of this program, a student must give a valid reason,

such as hardship, separation of siblings, o r participation in

certain extracurricular activities. There is, however, no

guarantee that a request for School Choice will be approved.

26. Notice of the Superintendent's recommended plan, the

School Board agenda, memorandum to the School Board, and m ap

were published on the School Board's website seven days before

the first School Board meeting. In addition, the same

information was published on the district's Twitter and Facebook

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

addres s. Finally, the Superintendent published a letter/email

on December 12, 2016, explaining his reasons for recommending

Option 13. It is fair to say that all parents had actual notice

well before the first School Board meeting that area 16 was

being reassi gned to different schools.

2 7 . 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 fina l action would

be taken at a second meeting on January 17, 2017. See Pet'r

Ex. 2. 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 Sc hool Board of Pasco County

intends to change attendance boundaries for

the 2017 - 2018 school year for the schools

listed below:

* * *

New Middle/High School GGG (Cypress Creek

Middle/High), Charles S. Rushe Middle ,

Dr. John Long Middle, Thomas E. Weightman

Middle, Sunlake High, Wesley Chap e l High,

Wiregrass Ranch High

* * *

First reading on this matter is scheduled

for the regular meeting of the District

School Board of Pasco County on December 20,

2016 at 6:00 p.m. in the W. David Mobley

Media Center, School Board Room, 7205 Land

O' Lakes Blvd . , Land O' Lakes, Florida.

School Board action on this matter is

scheduled for the regular meeting of the

District School Board of Pasco County on

January 17, 2017 [at the same time and

location] .

2 8 . Although all Petitioners stated they did not read the

Notice, they no netheless complain the Notice does not contain a

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

grant of rulemaking author ity, 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 la ck of more information in the Notice.

With the exception of those parents who voluntarily chose not to

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

not out of town had actual notice and attended the meetings.

2 9 . At both School Board m eetings, 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, f or a total

of three hours. To accommodate the large number of parents

wish ing to speak (33) , only 90 seconds was allotted to each

speaker , including those representing groups. Gi ven the time

constraints, not every parent was given the opportunity to

speak. However, 14 speakers who were not allowed to speak at

the first meeting were scheduled to speak first at the se c on d

meeting on January 17, 2017. All Petitioners attended at le ast

one of the two School Board meetings.

30 . Committee members were not required to attend either

School Board meeting to explain Option 13 (or why it was not

their first choice ) or to answer questions posed by the

audience. At this point in the process , the Superintendent, and

not the committee, bore the responsibility of making a final

recommendation to the School Board and to answer any questions

members had. At the close of public comment, the School Board

considered and approved Option 13 .

31 . O n 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 authorize d by Section 1001.42, Florida Statutes.

In addition, the Administrative Procedures [sic] Act requires

that the District publish a Notice of Intent to Adopt a Rule

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

was held on December 20, 201 6. " Pet'r Ex. 19.

3 2 . At the beginning of the meeting on January 17, 2017,

the Superintendent commented on his recommendation to adopt

Option 13. After public comment, by a 4 - to - 1 vote the School

Board adopted Option 13 for the East Side Schools. Unl ike

typical agency rulemaking, the adopted plan is in the form of a

map, rather than a numbered rule.

33 . As 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 secon d meeting.

3 4 . The cost for parents to transport their children to

the new school s is highly speculative, but it should be similar

to the current costs, as the new schools are the same distance

from Country Walk. There was no evidence to show that the n ew

plan would increase regulatory costs, directly or indirectly,

more than $200 ,0 00.00 within one year after implementation. See

§ 120.541(1)(b), Fla. Stat. Therefore, a statement of estimated

regulatory costs for implementing the new boundary lines was not

prepared by the School Board, and none was requested nor

submitted by a third party.

35. The parties agreed that had the students who are named

as parties testified at the final hearing, they would have

reiterated the allegations set forth in the Firs t Amended

Petition. These include allegations that the students will be

emotionally affected by the transfer ; they will be separated

from friends, teachers, counselors , and certain academic and

extracurricular programs ; and they will be limited in their

a bility to walk or bike to school.

3 6 . The parents expressed a wide range of concerns with

the new attendance boundaries. All wondered why Option 20,

which was recommended by the committee, was not accepted by the

Superintendent , rather than Option 13. H owever, in an email

dated December 12, 2016, the Superintendent explained that

O ption 13 provided the least disruption for all students. He

pointed out that if Option 20 were adopted, "some students could

attend four different schools in their secondary y ears. They

could conceivably start 6th grade at John Long Middle School ,

move to Weightman Middle School by the 8th grade, start 9th

grade at Wesley Chapel High School, and be moved to Cypress

Creek High School [a new high school] before graduation."

Pe t'r Ex. 8. He added that under Option 13, "the projected

average daily membership for Wiregrass Ranch High School will

decrease after the seniors graduate in 2017. Projected

enrollment goes down to 2,124 in 2018 and 1,956 in 2019." Id.

The Superintende nt further testified that by choosing Option 13,

"it kept [him] from having to move portables from Wiregras s

Ranch High School to Wesley Chapel High School," and it

"accomplished our goal of reducing student enrollment at

Wiregrass High School to get us of f the 10 - period day." Resp.

Ex. 28, p. 141. These reasons are sufficient to validate the

change in the boundary. Therefore, the undersigned will not

engage in an exercise to determine if another Option, or

variation thereof, might be better for, or more advantageous to ,

a particular neighborhood .

3 7 . Although the new schools are the same distance from

Country Walk as the current schools, the parents are concerned

with traffic conditions on State Road 54 and Meadow Pointe

Boulevard , roads they say must b e used in order to travel to the

new schools. They point out that these roads are far more

dangerous than the roads they now use to travel to their current

schools, and both roads have had a sharp increase in serious

accidents during the last two years. However, the district

T ransportation D irector stated that regardless of the route

taken, he had no concerns regarding the district's ability to

develop bus routes that result in safe transportation of

students to and from their schools. Notably, all major roads in

the Country Walk area are currently used by the district for bus

transportation and there are no safety concerns regarding their

continued use.

3 8 . Several parents expressed a concern that the value of

their homes would decline since buyers woul d not choose to

purchase a home in Country Walk if their children were forced to

attend Wesley Chapel or Weightman. 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 h omeowners have not

been able to sell their homes due to the proposed rezoning.

3 9 . P arents are concerned that the new schools do not have

the same clubs , extracurricular activities , or educational

opportunities that are found at Wiregrass and John Long. The re

is no credible evidence that substantially - similar educational

opportunities will not be available to students at Wesley Chapel

and Weightman. And t here is no credible evidence that any

student currently involved in a course of study unavailable at

the new school will be negatively impacted by curriculum

differences.

CONCLUSIONS OF LAW

4 0 . A threshold issue in this proceeding is whether the

redrawing of attendance boundaries is a rule. Despite having

made numerous references to rulemaking through out the

process, the School Board contends its assignment of students

to schools constitutes legislative action taken pursuant to

section 1001.41(6), and not rulemaking. It asserts Petitioners'

only remedy is to file an action in circuit court.

4 1 . The power to adopt new boundary lines is found in

section 1001.41(6), which 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.

4 2 . To implement this duty, section 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) auth orizes district school boards to "[a]dopt

rules pursuant 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."

4 3 . The t erm "rule" is defined in section 120.52(16) to

mean:

Each 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 impos es

any requirement or solicits any information

not specifically required by statute or an

existing rule. The term also includes the

amendment or repeal of a rule.

4 4 . As the First District Court of Appeal explained

many years ago, "[t]he breadth of t he 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) .

4 5 . An agency statement can be a declaration, expression,

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 ge neral applicability in that it applies uniformly to

students who attend East Side Schools and reside within that

geographic area, and it implements the general power to assign

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

section 120.52(16).

4 6 . This conclusion is consistent with a long string of

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 Homeown ers 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 , 9 51 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 Leon 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 adopt ing the attendance plan constituted

the making of a rule").

4 7 . 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.

4 8 . Administrative controversies concerning school

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

sec tion 230.23(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).

49 . This statutory scheme continued, with minor

modifications and renumbering, unti l 2002, when the Legislature

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 s " pursuant to section 1001.41(6), and to implement

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

and 1001.41(2). Nothing in the current statutory scheme or

legislative history suggests that the Legislature inte nded to

"implicitly abrogate" the process of changing boundary lines by

rulemaking in favor of legislative action. The contention is

rejected.

5 0 . In its PFO, the School Board asserts that if the new

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

rule, rather than a proposed rule, as the School Board adopted

the boundaries at its January 17 meeting, and it became

effective on that date.

5 1 . Resolution of this issue is significant because it

determines which party has the burden of pro of and whether the

challenged rule is entitled to a presumption 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

becomes effective "when adopted by the agency head." However,

section 120.54(3)(e)6. cannot be squared with the periods

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

rule. One statutory time period for challenging a p roposed rule

is "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 shortly after the second School Board

meeting. If the proposed rule became effective upon ad option,

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). The construction of the statute in this

manner would pr oduce an absurd result and be inconsistent with

the intent underlying chapter 120 to allow wide citizen

participation. The Petition is properly framed as a challenge

to a proposed rule.

5 2 . Petitioners hav e the burden of proving by a

preponderance of th e evidence that they are substantially

affected 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 valid , notwithstanding

the Petitioners' object ions. Id.

5 3 . 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 basis for the agency action. Standing 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 students (and their parents)

named in Finding of Fact 4, each parent 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 affects the subst antial interests of parents

of children).

5 4 . 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 rul e is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1; [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 va gue, 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 objec tives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties grante d by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the 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.

5 5 . 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. S tat. ("Notwithstanding 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.").

5 6 . Of the lettered paragraphs in section 120.52(8),

Petitioners' challenge t o the proposed rule is based upon

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

Compliance with Rulemaking Procedures

5 7 . The Petition raises multiple procedural grounds upon

which Petitioners argue that the proposed rule is invalid under

section 120.52(8)(a) . They essentially boil down to alleged

publication and notice errors and other procedural errors

committed during the rulemaking process.

5 8 . The School Board is an agency for purposes of

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

are ex empted from filing documents with the Joint Administrative

Procedure s 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. A lso, they are not required

to incl ude the full text of the rule in notices. Id. However,

they are not exempt from any other steps in the rulemaking

process.

59 . The rulemaking process requires notice and opportunity

for public input during the rule development phase and rule

adoption ph ase. See § 120.54(2) and (3), Fla. Stat.

6 0 . Petitioners contend notice of rule development was not

given , as required by section 120.81(1)(d) , which governs notice

procedures for educational units . To comply with the statute,

the School Board must pr ovide 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 proceedings and to

organizations representing persons affecte d

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 1 . Rule development must have occurred between September

and early December 201 6 when four committee meetings and one

parent meeting were conducted. 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, School Connect , press releases , and letters to

parents . These are "appropriate places" for posting notices and

constitute substantial compliance with the statute . Petitioners

contend otherwise and assert that signs and notices must be

posted in the affected neighborho ods in order to satisfy the

statute. But this would be impractical , as it would require the

School Board to post a sign or notice in every street and

neighborhood of the County where an affected person might

reside.

6 2 . Petitioners contend the School B oard erred by failing

to mail a notice of rulemaking to the Country Walk Homeowners

Association. While this type of notice was not provided, each

Petitioner received actual notice of the boundary process well

before the boundary committee, Superintendent, or School Board

took action to recommend or adopt the new attendance boundaries.

Moreover, advance written notice of rule development meetings

was not requested by any individual or organization. If there

was an error, it was harmless, as Petitioners ha d actual notice

of the zoning 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).

6 3 . Even though Petitioners did not read the Notice for

the adoption hearings , they contend it was flawed because it

failed to include all information required by the statute . The

legal advertisement published 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 the Notice lacked the detail normally provided

in agency rulemaking, 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, 2 016, and

January 17, 2017. Moreover, through other types of notice, such

as letters, emails, telephone calls, social media, and the map

itself, Petitioners 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. D ep't of Nat 'l Res . , 625 So. 2d 1263, 1269 (Fla. 4th DCA

1993)(petitioner 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).

6 4 . As to any ot her procedural errors not directly

addressed herein, a failure 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); Stuar t Yacht Club , 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, which was not shown here,

the rule is not invalid under section 120 .52(8)(a).

Vagueness, Inadequate Standards , or Vesting Unbridled

Discretion in School Board

6 5 . Petitioners contend the proposed rule is vague.

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

intelligence must guess at its meaning or applicati on.

Petitioners 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

s tudents or School Choice. The purpose of the rule was only to

establish new school attendance boundaries, and not to address

other standards. Th o se standards are found in other policies

and were not the subject of the district's rulemaking. The

proposed rule provides sufficient standards and details to guide

the rezoning process. The preponderance of the evidence

demonstrates that the proposed rule establishes adequate

standards for agency decisions and does not vest unbridled

discretion in the School B oard. It is not invalid under

section 120.52(8)(d).

A rbitrary and Capricious

6 6 . Petitioners contend the proposed rule is arbitrary and

capricious. "An arbitrary decision is one not supported by

facts or logic, or despotic." Bd. of Trs. of Int. Imp. T rust

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 justifiable "under any analysis that a

reasonabl e 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).

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

thoughtful consideratio n 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 irrationally. The

rule is not invalid under sec tion 120.52(8)(e).

Statement of Estimated Regulatory Costs

6 8 . Section 120.541(1) governs the preparation and

consideration of statements of estimated regulatory costs. In

this case, Petitioners did not request or submit a lower cost

regulatory alternati ve to the proposed rule. Likewise, there is

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. Therefore,

preparation of a statement of e stimated regulatory costs was not

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

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

of delegated legislative authority.

DISPOSITION

Based on the foregoing Findings of Fact and Conclus ions of

Law, it is

ORDERED that Option 13 is not a n in valid exercise of

delegated le gislative authority as to the objections raised .

The First Amended Petition is denied.

DONE AND ORDERED this 27th day of April, 2017, in

T alla hassee, Leon County, Flori da.

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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divis ion of Administrative Hearings

this 27th day of April , 2017.

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, Nathe, a nd 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)

Kurt S. Brownin g, Superintendent

Pasco County School Board

7227 Land O' Lakes Boulevard

Land O' Lakes, Florida 346 3 8 - 2826

Ernest Reddick, Chief

A my Grosen baugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

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 is entitle d

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.