18-003481 J.L. Nieman And Ryan A. Johnson vs. St. Johns County School Board Status: Closed Recommended Order on Friday, April 5, 2019.

Summary: Petitioner did not prove that Respondent erred in calculating the distance between his home and his children's assigned school, or that the most direct traveled route constituted a walking hazard, such that they are entitled to bus transportation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RYAN A. JOHNSON,

Petitioner,

vs. Case No. 18 - 3481

ST. JOHNS COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed hearing was held o n February 15, 2019, in

St. Augustine, Florida, before Suzanne Van Wyk, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ryan Alan Johnson, pro se

120 South Arabella Way

St. Johns, Flor ida 32259

For Respondent: Frank D. Upchurch, Esquire

Upchurch , Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 9066

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to bus transportation for his

child ren to and from Liberty Pines Academy , pursuant to section

1006.21(3)(a), Florida Statutes ; F lorida Administrative Code

Rule 6A - 3.001; and operative rules of the St. Johns County School

Board.

PRELIMINARY STATEMENT

On June 4, 2018, Respondent notified Peti tioner that school

bus transportation for his children to and from Liberty Pines

Academy (Ðthe AcademyÑ) would not be provided for the 2018 - 2019

school year. On June 8, 2018, Petitioner sent a letter to

Respondent opposing the termination of bus transport ation to and

from the Academy for his children, and other students residing in

his neighborhood, and requesting reconsideration. On June 22,

2018, RespondentÓs Superintendent communicated to Petitioner his

intent to move forward with termination of bus tr ansportation,

and Petitioner responded with his intent to request a hearing

before the Division of Administrative Hearings (Ð the DivisionÑ).

On July 5, 2018, Respondent forwarded PetitionerÓs

communications to the Division and requested assignment of an

Ad ministrative Law Judge to conduct an administrative hearing

pursuant to RespondentÓs contract with the Division. The

undersigned originally scheduled the matter for hearing on

September 10 and 11, 2018, but the case was subsequently abated

for Respondent to take official action, at a publicly - noticed

meeting, on the SuperintendentÓs recommendation to terminate bus

transportation. The School Board took that action on October 9,

2018, and by subsequent status report to the undersigned, the

parties requested the matter be rescheduled for hearing. The

case was scheduled for hearing on January 17, 2019, and

subsequently rescheduled to February 15, 2019.

At the final hearing, Petitioner testified on his own behalf

and introduced the testimony of Frank Sebregand io and Sonya Cook.

PetitionerÓs Exhibits P3 through P11 were admitted in evidence.

Respondent introduced the testimony of Alfred Pantano and

Tim Forson. RespondentÓs Exhibits R1 through R35 were admitted

in evidence.

A one - volume Transcript of the procee dings was filed on

March 6, 2019. The parties timely filed Proposed Recommended

Orders on March 18, 2019, which have been considered by the

undersigned in preparing this Recommended Order.

Unless otherwise noted, all references to the Florida

Statutes are to the 2018 version.

FINDING S OF FACT

1. Petitioner, Ryan A. Johnson, is the parent of two

elementary - school - aged children who attend the Academy , a public

school operated by Respondent. The Academy is located on Russell

Sampson Road in northern St. Joh ns County.

2. Petitioner and his children reside at 120 South Arabella

Way in the St. Johns Forest subdivision (Ðthe subdivisionÑ) in

St. Johns County. The subdivision is a large, gated, planned

unit development in northern St. Johns County. The subdivi sion

is roughly bounded by County Road 2209 (ÐCR 2209Ñ) on the east,

Russell Sampson Road on the west, and County Road 210 West

(ÐCR 210Ñ) on the south.

3. Respondent, St. Johns County School Board, is the

constitutional entity authorized to operate, cont rol, and

supervise the public schools within St. Johns County. See

Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.

4. Respondent is required to provide transportation for

public school students Ðwhose homes are more than a reasonable

walking dista nceÑ from their designated school, as defined by the

rules of the State Board of Education. § 1006.21(3)(a),

Fla. Stat.

5. The State Board of Education defines Ðreasonable walking

distanceÑ as Ðnot more than two (2) miles between the home and

school.Ñ Fla. Admin. Code R. 6A - 3.001(3).

Background

6. Prior to the 2018 - 2019 school year, Respondent provided

bus transportation for PetitionerÓs children as Ðcourtesy

riders,Ñ students who live within two miles of their assigned

school, but for whom transporta tion is provided by special

authorization of the Superintendent.

7. In this case, there was a direct route of two miles or

less between the subdivision and the Academy . P art of the route

proceeded through a wooded area out of sight of the roadway.

Resp ondent deemed the route Ðtoo great a riskÑ for the

students, 1/ and provided bus transportation by special

authorization.

8. Prior to the beginning of the 2018 - 2019 school year, the

Florida Department of Transportation built an interchange at the

intersec tion of CR 2209 and State Road 9B (ÐSR 9BÑ), northwest of

the subdivision. SR 9B is a divided highway that runs from

Interstate 295, across Interstate 95, to CR 2209 .

9. In connection with the interchange construction, a new

sidewalk was constructed con necting the existing sidewalk along

CR 2209 to the Academy, via a route parallel to CR 2209 and a

portion of the SR 9B entrance ramp.

10. In the spring of 2018, RespondentÓs transportation

staff reevaluated the eligibility of students residing in the

sub division for bus transportation to and from the Academy.

11. Based on the reevaluation, the Superintendent

recommended termination of bus transportation to and from the

subdivision. On October 9, 2018, Respondent voted to approve the

SuperintendentÓs re commendation to terminate bus transportation

between the Academy and the subdivision. The decision to

terminate was based on RespondentÓs finding that the subdivision

is located within a reasonable walking distance from the Academy.

Petitioner Ó s Challenge

12. Petitioner challenges RespondentÓs decision to

terminate bus transportation on three grounds. First, he asserts

that Respondent incorrectly calculated the distance of the most

direct traveled route between the Academy and his residence.

Second, Pe titioner asserts that the route constitutes a hazardous

walking condition under state law. Third, Petitioner argues

RespondentÓs decision was arbitrary, capricious, oppressive,

erroneous, an abuse of agency discretion, or an invalid exercise

of delegated authority.

RespondentÓs Calculation

13. To determine whether Academy students living in the

subdivision would be eligible for bus transportation for the

2018 - 2019 school year, RespondentÓs transportation staff

calculated the walking distance from their ho mes to the Academy,

measured from the end of their driveways, along interior

subdivision sidewalks, through the North Arabella Way pedestrian

gate, along the CR 2209 sidewalk to the Academy front door.

Transportation staff determined this route to be the Ðmost direct

traveled routeÑ to and from the school.

14. PetitionerÓs ho me is located 6,740 feet (1.276 miles )

from the Academy, calculated based on the most direct traveled

route. On that basis, Respondent determined PetitionerÓs

children are not entitl ed to bus transportation to and from the

Academy.

15. Petitioner disputes the calculation because the

designated Ðmost direct traveled routeÑ requires access through

the North Arabella Way pedestrian gate, which he argues is not

accessible to school - aged children.

16. The gate is equipped with a locking mechanism.

Residents may gain access from the sidewalk into the subdivision

at the gate with an electronic access card issued by the

subdivisionÓs homeownerÓs association (ÐHOAÑ).

17. Pursuant to the su bdivisionÓs master property ownersÓ

association rules and regulations, no electronic access card may

be issued to residents under the age of 15.

18. The subdivisionÓs declaration of covenants and

restrictions states, in pertinent part:

Minors shall not be permitted to use the

Common Area except under the supervision of

an adult Owner or lawful occupant over the

age of eighteen (18) years, except under such

conditions as the Board may from time to time

establish . (emphasis added) .

The Common Area is defin ed broadly to include Ðall real property

dedicated to, owned by, or held by the Association, or intended

by the Declarant to be devoted to the common use or enjoyment of

the Members,Ñ and includes streets, landscaping, fencing,

signage, buffer areas, conse rvation areas, and Ðentry features,Ñ

as well as the clubhouse and recreational facilities.

19. The subdivisionÓs controlling documents allow for

exceptions to be made at the BoardÓs discretion. In other words,

the subdivisionÓs HOA, not Respondent, has control over whether

Academy students can access the North Arabella Way pedestrian

gate.

20. Petitioner did not introduce any evidence supporting a

finding that Respondent is required to consider, in determining

the most direct traveled route, whether acc ess is limited by

private property restrictions.

21. Nothing in the state statute or rules require

Respondent to consider whether a pedestrian entry point is

privately controlled.

22. The HOA has the authority to create an exception to the

gate entry res triction, which apparently would not even require

an amendment to the subdivision covenants and restrictions.

23. Further, pursuant to r ule 6A - 3.001, the reasonable

walking distance Ðshall be measured from the closest pedestrian

entry point of the propert y where the student residesÑ to the

closest school entrance. The rule provides that the pedestrian

entry point of the residence Ðshall be where private property

meets the public right - of - way.Ñ Fla. Admin. Code R. 6A - 3.001(3).

24. The public right - of - wa y is located 81 feet west of the

North Arabella Way pedestrian gate, where the subdivision Ós

private property ends. The rule does not require Respondent to

include in its measurement the distance between PetitionerÓs

driveway and the right - of - way. Thus, the rule does not

anticipate consideration of any gate, or other entry structure,

beyond the right - of - way.

25. The distance from the public right - of - way outside the

North Arabella Way entrance to the school entrance is 0.816

miles. RespondentÓs much more generous calculation errs in favor

of PetitionerÓs children. 2/

Hazardous Walking Conditions

26. Even if the subdivision were less than two miles from

the Academy, Respondent would be required to provide

transportation for PetitionerÓs elementary school children if

they were subject to hazardous walking conditions on the most

direct traveled route. See § 1006.21(3)(b), Fla. Stat.

27. Petitioner argues that his children are entitled to bus

transportation to and from the Academy because the most direct

tr aveled route identified by Respondent subjects his children to

hazardous walking conditions.

28. Section 1006.23 defines hazardous walking conditions

with respect to walkways parallel to a road, perpendicular to a

road, and crossings over a road.

29. In the instant case, PetitionerÓs children will travel

through the North Arabella Way pedestrian gate and follow a

sidewalk parallel to CR 2209 , and parallel, for a short distance,

to the SR 9B entrance ramp.

30. For walkways parallel to a road, Ð[i]t shall be

considered a hazardous walking condition with respect to any road

along which students must walk . . . if there is not an area at

least 4 feet wide adjacent to the road . . . having a surface

upon which students may walk.Ñ £ 1006.23(2)(a)1., Fla. Stat.

31. This requirement is referred to as a Ðsuitable walk

area,Ñ and is not required to contain a paved sidewalk.

32. The walk area parallel to CR 2209 and entrance ramp to

SR 9B is improved with a continuous concrete sidewalk that is a

minimum of five fe et wide.

33. The statute additionally requires, where the road is

uncurbed, the walking area be offset three feet from the edge of

the roadway.

34. In the instant case, CR 2209 and SR 9B are both curbed

roadways. Nevertheless, the sidewalk along the wal king route is

set off a minimum distance of three feet from the edge of the

curb. That area is referred to as the Ðutility areaÑ and is a

grassed area between the edge of the curb and the edge of the

sidewalk.

35. There are no other applicable statutory components to

the definition of hazardous walking condition.

36. Despite the conformance of the route with the Ðsuitable

walk areaÑ requirements, Petitioner maintains the walking route

poses a hazardous walking condition because of the speed with

which tr affic travels the adjacent roadways, the proximity of the

sidewalk to those roadways, and documented instances of vehicle

accidents in the area, at least one of which resulted in an

overturned car on the subject sidewalk.

37. The posted speed limit on CR 2209 is 45 miles per hour.

The posted speed on the SR 9B entrance ramp increases to 50 miles

per hour. The posted increased speed limit is located on the

ramp after the subject sidewalk ÐjogsÑ away from SR 9B to the

Academy.

38. Petitioner points to Sch ool Board Rule 8.13(8), which

provides as follows:

Maximum regard for the safety of students and

due consideration for the protection of

health of all students transported shall be

primary requirements in the routing of buses,

establishing student stops, a ppointing

drivers, and in providing and operating

transportation equipment.

Petitioner argues that RespondentÓs decision to terminate bus

transportation to his children violates this rule. He argues

that making his children walk along roadways with a pos ted speed

limit of 45 miles per hour, and along an entrance ramp where cars

are accelerating to a speed of 50 miles per hour, and where

documented accidents have occurred, including one which resulted

in an overturned car on the sidewalk, does not take int o account

maximum regard for their safety. He argues that maximum regard

for their safety dictates providing bus transportation between

the subdivision and the Academy.

39. PetitionerÓs argument fails because rule 8.13 applies

to RespondentÓs transporta tion program, not determinations of

hazardous walking conditions. S ubs ection (8) governs decisions

regarding bus routes, establishing bus stops, selecting and

appointing drivers, and operating buses and equipment.

S ubs ection (8) does not govern Responden tÓs decisions whether to

provide courtesy bus transportation to students within a

reasonable walking distance to the Academy. 3/

40. The route identified by Respondent for PetitionerÓs

children to walk to and from the Academy does not contain any

hazardou s walking condition as defined in section 1006.23(2)(a).

CONCLUSIONS OF LAW

41. The Division has jurisdiction over the subject matter

and parties in this case, pursuant to sections 120.569 and

120.57(1), Florida Statutes. 4/

42. Petitioner seeks to esta blish entitlement to bus

transportation for his children between the subdivision and the

Academy. As the party asserting the affirmative of the issue,

Petitioner has the burden to prove said entitlement by a

preponderance of the evidence. Fla. DepÓt of T ransp. v. J.W.C.

Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. DepÓt of HRS ,

348 So. 2d 349 (Fla. 1st DCA 1977); § 120.57(1)(j), Fla. Stat.

43. Petitioner did not meet his burden in this case. While

Petitioner introduced evidence that access to the North Arabella

Way pedestrian gate is controlled by the HOA, that fact alone

does not render incorrect RespondentÓs calculation of the

distance between PetitionerÓs residence and the Academy entrance

by the most direct traveled route.

44. Petitioner did n ot prove that the Academy is not within

a reasonable walking distance from his home to require bus

transportation for his children.

45. Petitioner likewise failed to establish that the Ðmost

direct traveled routeÑ designated by Respondent presents

hazardo us walking conditions for his children, pursuant to the

governing statute. The route actually exceeds the statutory

requirements for a suitable walk area because it contains a paved

sidewalk a minimum of five feet wide, as well as an additional

three - foot utility area. 5/

46. Petitioner challenged RespondentÓs determination on a

third ground: the decision was arbitrary, capricious,

oppressive, erroneous, an abuse of agency discretion, or an

invalid exercise of delegated authority. As authority for this

a rgument, Petitioner cites the Federal Administrative Procedure

Act, 5 U.S.C. § 706.

47. PetitionerÓs argument is misplaced. The instant action

is governed by sections 120.569 and 120.57(1) of the Florida

Administrative Procedure Act, not the Federal Admi nistrative

Procedure Act.

48. Petitioner failed to establish entitlement to bus

transportation for his children between the subdivision and the

Academy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the St. Johns County School Board

enter a final order dismissing PetitionerÓs challenge and

affirming its decision to terminate bus transportation for

PetitionerÓs children, unless a special authorization is granted

by the Superintendent.

DONE AND ENTERED this 5 th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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

Division of Administrative Hearings

this 5 th day of April , 2019 .

ENDNOTE S

1/ T.148:16 - 17.

2/ Respondent calculates Ðreasonable walking distanceÑ broadly.

Ra ther than measuring from the public right - of - way located

outside the subdivision entrance, to the school entrance,

Respondent calculates the distance between the end of the

studentÓs driveway to the school entrance. RespondentÓs

Director of Transportation , Alfred Pantano, explained that

RespondentÓs interpretation ensures that no child has to walk

two miles or more from where they actually reside.

3/ This finding should not be construed to imply that Respondent

has no duty to consider student safety othe r than in designing

bus routes, selecting bus stops, appointing bus drivers, and

operating buses and other equipment. The finding simply

confirms that the statute governing Ðhazardous walking

conditionsÑ is the controlling authority in the instant case;

n ot rule 8.13.

4/ Pursuant to a contract between Respondent and the Division,

the provisions of chapter 120 apply to proceedings determining

the substantial interests of a party, such as Petitioner.

5/ This conclusion should not be construed to minimiz e

PetitionerÓs substantial fears for the safety of his children

walking along CR 2209 and the entrance ramp to SR 9B. However,

a s noted by the undersigned at the final hearing, School Board

Rule 8.13(3)(a) authorizes the Superintendent to provide school

b us service to students living within two miles of their

designated school by Ðspecial authorization,Ñ even if they are

not eligible for state transportation funding. The undersigned

has no authority to recommend an equitable remedy, such as

granting a Ðsp ecial authorizationÑ in this case.

COPIES FURNISHED:

Jason Nieman

832 Chanterelle Way

Fruit Cove, Florida 32259

(eServed)

Frank D. Upchurch, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 9066

(eSe rved)

Ryan Alan Johnson, Esquire

120 South Arabella Way

St. Johns, Florida 32259

(eServed)

Tim Forson, Superintendent

St. Johns County School District

40 Orange Street

St. Augustine, Florida 32084 - 3693

Richard Corcoran, Commissioner of Education

Depa rtment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(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 SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issu e the Final Order in this case.