88-000847RX Florida Education Association United vs. Department Of Education Status: Closed DOAH Final Order on Wednesday, December 14, 1988.

Summary: Rule mandating retirement age for school bus drivers invalid because not a Bona Fide Occupational Qualification and it contravenes laws against age discrimination. Arbitrary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EDUCATION ASSOCIATION/UNITED, )

)

Petitioner, )

and )

)

FLORIDA TEACHING PROFESSION/NATIONAL )

EDUCATION ASSOCIATION, )

) CASE NO. 88-0847RX

Intervenor, )

)

vs. )

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

________________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on October 10

and 11, 1988, in Tallahassee, Florida, before the Division of Administrative

Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Lorene C. Powell

Assistant General Counsel

FEA/United

208 West Pensacola Street

Tallahassee, Florida 32301

For Respondent: Carl J. Zahner

Carolyn S. Holifield

Assistant General Counsels

Department of Education

Knott Building

Tallahassee, Florida 32399

For Intervenor: Vernon T. Grizzard

Attorney at Law

116 South Monroe Street

Tallahassee, Florida 32301

ISSUE

The ultimate issue is whether Rule 6A-3.0141(1)(a) Florida Administrative

Code, is an invalid exercise of delegated legislative authority.

BACKGROUND AND PROCEDURAL MATTERS

The Petitioner, Florida Education Association/United (FEA/United), filed a

Petition seeking a declaration that Rule 6A-3.0141, where a maximum age for

employment of school bus drivers is established, is an invalid exercise of

delegated legislative authority in that it constitutes age discrimination in

violation of the Florida Human Rights Act, Section 760.10, Florida Statutes, and

Section 112.044, Florida Statutes, and the Age Discrimination in Employment Act

of 1967, 29 U.S.C. Section 621, et seq., as well as the Fourteenth Amendment of

the United States Constitution and Article I Section 2 of the Florida

Constitution. Intervenor, Florida Teaching Profession/National Education

Association (FTP-NEA), joined in the Petition.

FEA/United presented the testimony of Sue H. Schler, M.D., Harvey L.

Sterns, Ph.D., and Marc G. Gertz, Ph.D. Petitioner's Exhibits 1, 2, 3A, 3B, 4-

8, and 10 (a late filed exhibit) are admitted in evidence.

FTP-NEA presented the testimony of Mark Ross Trammell and had FTP Exhibit 1

admitted in evidence.

Respondent, Department of Education (the Department) presented the

testimony of Larry McEntire, Patricia F. Waller, Ph.D., and Julian A. Waller,

M.D. Respondent's Exhibits A-D, G, H, IA, IB, and J are admitted in evidence.

Post hearing, FTP-NEA filed a Request for Official Recognition which was

opposed by the Department. The Request for Official Recognition was denied by

Order dated November 22 1988.

The transcript of the proceedings was filed on October 26, 1988. The

parties timely filed their proposed findings of fact and conclusions of law on

November 16 and 17, 1988. All proposed findings of fact and conclusions of law

have been considered. Specific ruling on each proposed finding of fact is made

in the Appendix attached hereto and made a part of this Final Order.

FINDINGS OF FACT

A. History of Rule 6A-0141

1. Prior to the promulgation of Rule 6A-3.0141, effective August 1, 1986,

the Department did not have an established mandatory retirement age for public

school bus drivers. It is not known how many drivers remained employed after

reaching age 70.

2. The mandatory retirement age of 70 originated from the concern

expressed by transportation personnel in several local school districts about

the great variance in the quality of physical examinations given to screen

drivers for safety. The old rule allowed school districts to designate any

licensed physician to administer the physical, and, in many cases, drivers were

going to family physicians who were hesitant to fail them. The mandatory

retirement age of 70 was adopted to address this concern, however, the old rule

provision allowing local school districts to designate any licensed physician to

conduct physical exams went unchanged.

3. Larry McEntire, Administrator of the Department's School Transportation

Management Section, worked to formulate the new rule with the five or six

members of the standing rules committee of the Florida Association for Pupil

Transportation (FAPT), which is comprised of personnel from the local school

districts. The rule change instituted comprehensive classroom and on-the-road

driver training requirements. The anew age restriction was not controversial;

in fact the official published justification for the rule mentioned only the new

training requirements, not the new mandatory retirement age.

4. The particular age of 70 was arrived at through information provided by

other states, ten of which had a mandatory retirement age of 70, consistent with

the age-70 limitation on coverage under the federal ADEA at the time. No

Florida school bus accident data, which was then viewed as unreliable, was used

in choosing 70 as the age for mandatory retirement. No Florida statute

suggested that age in general, or age 70 in particular, be used as a criterion

in establishing qualifications for Florida school bus drivers.

5. With regard to training and increased frequency of physical

examinations at age 65 and over, the rule is patterned after the safety

standards of the National Highway Traffic Safety Administration (NHTSA).

However, the mandatory retirement age of 70 is in direct conflict with the NHTSA

standards in effect then and now, which recommend no mandatory retirement age.

6. The Department received a survey of state directors of pupil

transportation on September 3, 1985, which was issued August 29, 1985, by the

National School Transportation Association, indicating that at least 30 states

had no age limit at that time for employment as a school bus driver.

7. Although Mr. McEntire had previously seen the 1969 study by Promisel in

his master's program in transportation and safety at Florida State University,

neither that study nor any other study or data analysis was presented to or

considered by the FAPT rules committee or others in the Department. Mr.

McEntire is not aware of any study, data, or analysis considered during

rulemaking which contained a recommendation that age 70 be adopted as a

mandatory retirement age for school bus drivers.

8. Mr. McEntire is unaware of whether the School Health Advisory Committee

of the Florida Medical Association (FMA), which has a longstanding relationship

with the Department, has ever recommended adoption of a mandatory retirement age

of 70 as a means of ensuring that school bus drivers have the necessary

qualifications to drive safely.

9. Mr. McEntire and the FAPT rules committee did see a two-page document

from Iowa entitled "In re Sievert Van Dyke" which reported, among other things,

that "school bus drivers under 30 years and over 65 have a disproportionately

large number of accidents," that "30, 40, 50 percent of the variability can be

predicted on the basis of age," and that "sudden incapacity due to medical

defects becomes significantly more frequent in any group reaching age 60."

10. In Rule 6A-3.0141 several statutes are cited as specific authority for

the rule and certain other statutes are cited as the specific laws implemented.

None of the provisions of law mentioned in the rule requires a mandatory 70 year

retirement age for public school bus drivers.

11. The Student Transportation Coordinator for the Florida Highway Patrol,

which has regulatory jurisdiction over approximately 4,000 private school bus

drivers in Florida, was aware when the Department of Education instituted a

mandatory retirement age of 70. The jurisdiction and mission of the Florida

Highway Patrol in this regard directly parallels the mission of the Department

of Education concerning public school bus drivers.

12. While the Florida Highway Patrol requires drivers age 65 and over to

have a physical examination semiannually rather than annually, as does the

Department of Education, there is no age limitation for driver certification,

there has never been one, and no change is planned in this policy.

B. Age and Accident Risk

13. Patricia J. Waller, Ph.D., is the Associate Director for Driver

Studies at the University of North Carolina, Highway Safety Research Center,

Director of the University of North Carolina Injury Prevention Research Center,

and research professor at the University of North Carolina Center for Policy and

Health. She is an expert in the area of driver licensing and crash safety.

14. Dr. Patricia Waller has studied the relationship between age and

accident rate. The results of Dr. Waller's research as it relates to age and

crash risk are that when number of miles driven is considered, there is an

increase in crash risk.

15. Dr. Patricia Waller was commissioned by the National Academy of

Sciences to write a paper, "Renewal Licensure of the Elderly Driver," to be

included in a comprehensive study that was done on transportation in an aging

society. The publication in which Dr. Waller's paper appears officially came

out in October 11, 1988.

16. Dr. Patricia Waller's paper, "Renewal Licensure of the Elderly

Driver", was done after a review of all the literature that was available on the

topic of licensure and re-licensure of older drivers. The literature available

included studies related to age and accident rate.

17. Studies have shown that drivers over 65 years of age as a group behave

very responsibly in driving situations. Older drivers tend to restrict their

own driving to the best time and locations. For example, because of marked

vision changes that occur with increasing age, older drivers reduce their

nighttime driving; also, older drivers also tend to reduce their driving in

cases of inclement weather or during heavy traffic times.

18. Despite the fact that older drivers restrict their own driving so that

it is less demanding, there is still an increase in crash risk with increasing

age.

19. The crash rate increases for people in their middle to late fifties,

particularly when the number of miles driven in considered. However, the crash

risk increases even more for individuals in their early to late sixties. With

respect to drivers in their sixties and seventies, age is associated with an

increasingly accelerated risk of crash. There is also an increase in crash risk

per mile with increasing age.

20. It is Dr. P. Waller's opinion that the Department should set a

mandatory retirement age for school bus drivers because the crash data on

licensed drivers indicates increasing involvement after age 65.

21. It is also Dr. P. Waller's opinion that it is in everybody's best

interest that older people as a group be allowed to meet personal transportation

needs by retaining their driver's license for as long as possible. She feels

there are tradeoffs that allow us to say we are willing to accept the highway

safety risk in order to enable this person to continue to function

independently.

22. Dr. P. Waller does not believe that the state of the art permits

adequate testing to determine the ability to safely drive; however, she is not a

medical doctor fully versed in medical testing.

23. For her proposition that older school bus drivers should have the same

crash risk as older drivers generally, Dr. P. Waller relied on the Promisel

data. The Promisel data, set forth in a 1969 report from Dunlap and Associates

on school bus safety and operator age in relation to school bus accidents, shows

that the number of crashes increases very dramatically with age, particularly

when the number of miles driven is considered.

24. The Promisel study found no correlation between age and accident

severity, recommended against the establishment of school bus driver age limits,

specifically disclaimed any causal relationship between age and accidents, and

made no analysis of accident risk associated with age 65 or over.

25. The skewed age population in the Promisel study and the "generational

cohort effect" (simply stated, the older a study of drivers, the less validity

it may have for current drivers) render any accident risk projections from that

study to today's 70-and-over Florida school bus drivers unreliable.

26. Finally, it is Dr. P. Waller's opinion that age 70 is an arbitrary

number and that any set age is arbitrary, however, she is aware of no alterative

to using age as the cutoff standard in order to maximize safety.

27. Dr. Julian Waller is a medical doctor and also has a Master of Public

Health Degree in Epidemiology. For the past 20 years, he has been employed at

the University of Vermont College of Medicine. Since 1978, Dr. J. Waller has

been a professor of medicine in the geriatric unit. Dr. J. Waller is an expert

in the areas of human physiology as it relates to driving and medical impairment

to driving; also, Dr. J. Waller is an expert in the area of statistics. Dr. J.

Waller has not examined a patient since 1961. He is not certified in the sub-

specialty of geriatric medicine and he is not familiar with the term

heteroschistosity. He has not personally studied bus drivers.

28. According to Dr. J. Waller, there are four basic driving tasks, all of

which involve some type of commercial driving, that put excessive stress on

drivers. The specific categories are: driving a bus, driving a large truck,

driving an ambulance, and driving a police or fire vehicle.

29. In order to drive a vehicle of any type, four types of capabilities

are needed: (1) the person must be alert; (2) the person must be able to

identify things in the environment that potentially represent a threat; (3) the

person must be able to make timely and appropriate decisions; and (4) the person

must be capable of carrying out the decision in a timely and appropriate manner.

30. Normal changes occur as an individual ages that may affect his ability

to perform the tasks required in a driving situation.

31. Vision normally deteriorates with increasing age. There may be a

narrowing of visual fields, a decrease in ability to adapt to dark situations,

and problems associated with glare.

32. An area of concern that may affect older individuals is contrast

sensitivity. An individual with problems in this area may have absolutely

normal static visual acuity. That is, he can read a typical Snellan chart very

easily, but cannot read signs or other things in the environmental which are not

perfect contrast of black and white. A person affected by contrast sensitivity

may not be aware of many things in their environment, such as traffic signs and

street signs unless they are black and white.

33. Complex reaction time is an important factor to consider for a person

in a driving situation who is required to make decisions. Older people often do

not do well in complex situations where reaction time is critical.

34. A problem among older individuals is the beginning of alteration of

consciousness for very brief periods of which they are not totally aware.

35. A physical examination or a mental examination evaluates the

performance of the individual at that particular time only. An individual's

performance may vary from day to day or moment to moment.

36. During the early stages, Alzheimer's disease may be difficult to

identify. However, it is during this time that individuals are most likely to

be driving. The symptoms which the disease manifests, though not apparent

during a physical examination, may affect an individual's driving.

37. Everyone has a variability in their performance. However, because an

older person's spare capacity has been eroded, they have less spare capacity to

respond to the demands of driving situations. As a result, what may be even a

relatively normal variation may put the older person below the minimum that is

required to deal with increased demand required to meet emergencies and more

demanding driving situations.

38. Further, according to Dr. J. Waller, the physiological changes that

affect a person's vision, stamina, and ability to deal with time-bound decision

making and response time so as to effect crash rate begins at about age 55. By

age 65, the increased crash risk of all drivers is significant enough to cause

concern about people this age performing a special driving task such as driving

a school bus.

39. Dr. J. Waller believes that health-related criteria used in a physical

examination lack the precise, predictable cutoff points to distinguish between

those older drivers who should be permitted to drive and those who should not be

permitted to drive.

40. In areas where special licensing procedures are used to license older

drivers, there is still the same increased crash risk for older drivers.

41. It is Dr. J. Waller's opinion that as people grow older they have more

crashes per unit of miles driven and turn out to be responsible for those

crashes more frequently.

42. It is Dr. J. Waller's opinion that it is reasonable for the Department

to set an age limit for school bus drivers and that such an age should not be

much past the age of about 65. He bases this opinion on his experience in

working with departments of motor vehicles through the years.

43. It is also Dr. J. Waller's opinion that the problem of physical

impairment and driving and crash risk is too inexact to permit appropriate

identifying criteria for those drivers who should not be permitted to drive.

Dr. J. Waller served on a committee of the American Medical Association that

attempted to put together an appropriate set of identifying criteria and the

doctors were unable to agree. According to Dr. Waller, this lack of agreement

reflects basically a lack of progress in the predictive capabilities of physical

examination that has existed since 1927.

44. Dr. J. Waller feels that the Folstein mini-mental examination cannot

identify early Alzheimer's disease. It is Dr. J. Waller's further opinion that

physical examinations do not reveal subtle degradation and reduced capacity in

individuals.

45. Dr. J. Waller believes that subtle degradation changes cannot be

measured, but have individual components which may be testable under certain

circumstances. However, the way they all relate to each other has never been

tested. It is his opinion that the way we know that they exist, since they

cannot be tested, is because we see what is the end result.

46. Dr. J. Waller presented a bar graph, marked as Respondent's Exhibit K,

which he relied on for his opinion that the relationship between age and

accident risk is approaching an exponential relationship. That graph and the

opinion based on it are unreliable. The graph is not statistically accurate, is

visually deceptive as drawn, and is an unsubstantiated data analysis.

47. Marc G. Gertz, Ph.D., is a professor at Florida State University and

president of Research Network, an independent data analysis, survey, research

methodology and political polling firm. As part of his duties at F.S.U., Dr.

Gertz teaches many of the graduate courses in research methodology and

statistics as well as having been chairman of and serving on the Ph.D. Methods

Comprehensive Examination Committee for the previous eleven years.

48. Dr. Gertz was employed by FEA/United to conduct an analysis of school

bus drivers and accident rates in the State of Florida. In collecting data for

this project, Dr. Gertz was not able to find any previous study ever done in

Florida on school bus drivers and accident rates.

49. This project entailed the collection of three sets of data. One set

of data was obtained from the Department of Highway Safety and Motor Vehicles

(DMV). The second set of data was obtained from the Department of Education

(DOE) and the third set of data was a complete enumeration (as opposed to a

random sample) obtained from individual counties, specifically Dade, Pinellas,

Okaloosa and Hendry.

50. Dr. Gertz performed a number of statistical analyses on the data

collected and compiled it into a report. Dr. Gertz pointed out that this is an

original collection of data as opposed to a summary of data from the agencies in

question that have control of the data. This data is known as primary data

which is data you collect yourself as opposed to secondary data, which is

someone else's data used to do your analysis. The problem with secondary data,

according to Dr. Gertz, is you don't know what went into their choice of

variables, their choice of case, how they operationalized, how they defined the

terms or how they manipulated the data.

51. An example of one piece of primary or "raw" data that was collected by

Dr. Gertz for this study is the individual accident reports on file with the

DMV.

52. The DMV data was compared for years 1984 and 1985 for each of the

different variables, for example, the number of injuries or the number of

fatalities was compared with age to obtain both simple correlations and age as a

curvilinear function.

53. Based on his research, Dr. Gertz found from the DMV data that age had

no statistically significant correlation with accidents of school bus drivers in

Florida. Dr. Gertz explained the negative numbers of page 1 of his report as

negative correlations which indicate that younger drivers are more likely to

have accidents, although he was not comfortable saying that the correlation was

statistically significant.

54. Dr. Gertz pointed out that in his examination of the DMV data, what is

called an accident may not be what all of us would call an accident. For

example, if you knock over a tree limb or if the bus mirror is damaged, this

could result in an accident report being filed with the DMV. In the bottom half

of page 1 of his report, age was squared to give more weight to the younger and

older people to see if age was a curvilinear function of these variables, but

this analysis did not change the statistical results.

55. Dr. Gertz performed more sophisticated analyses on the data sets he

collected such as regression analysis and discrimination function analysis, but

could still not explain the variation in accidents with any of the variables

tested to correlate age with any of those variables.

56. The second set of data was obtained from the DOE for the years 1986

and 1987. The results of Dr. Gertz's analyses are found on page 2 of his

report. This data revealed three significant relationships, although in Dr.

Gertz's opinion the significance was at a very, very low level. The statistical

significance found by Dr. Gertz is .05 which means that 95 times out of 100

times it would not be happening at random. These three significant relationship

are (a) in 1986 younger drivers were more likely to have had prior accidents;

(b) in 1987 the younger drivers were most statistically likely to have been

charged in the accident; and (c) in 1986 bus drivers who did have in-service

training were less likely to have had accidents. For (c) the statistical

significance is .01.

57. On page 3 of his report, age was cited as a percentage for the years

1984-1987 using both the DMV data and the DOE data. Dr. Gertz explained this

data in terms of the "n" sizes. The "n" size means the sample size. The rule

of thumb, according to Dr. Gertz, is that you don't analyze columns that have

less than 25 cases in the sample. In the data provided, however, some sample

sizes were smaller than 25 which skews the percentage. The closest comparison

in this data is in the 1984 Department of Motor Vehicle Data in which a sample

size of 18-24 year olds contained 24 cases. The analysis revealed that for all

accidents, the percentage where the driver was not charged is 72 percent for 18-

24 year olds and 87 percent in the 65 and older group.

58. Petitioner's Exhibit 1, pages 4 and 5 (Gertz's report) contains the

data from the third data set. This data was collected directly from the

counties and contains a complete enumeration and includes all school bus

drivers, those who did not have accidents as well as those who did have

accidents.

59. Based on all the data and his analyses, it was Dr. Gertz's opinion

that age did not explain why accidents occurred among school bus drivers in the

State of Florida. There is no statistically significant correlation between

increased age of public school bus drivers and increased accident risk. In

fact, the only slight correlation is between younger drivers and increased

accident risk. His conclusion is that, based on the current Florida data, age

is no factor in accident risk for public school bus drivers. His opinions are

accepted as most creditable because they are based on current Florida data

regarding school bus drivers.

C. Individual Medical Testing

60. Dr. Sue H. Schler is a medical doctor and holds a Master's degree in

public health and biostatistics and epidemiology.

61. Dr. Schler is an expert in the field of geriatric medicine.

62. Dr. Schler passed the first subspeciality certification examination in

geriatric medicine ever offered, making geriatric medicine officially a

subspeciality of internal medicine as of 1988. Dr. Schler teaches medical

students at the University of South Florida College of Medicine.

63. Dr. Schler believes that the average physician in Florida could easily

be trained to conduct a physical examination (including a neurological exam) on

a school bus driver that would take about half an hour to perform which would

screen out the safe from the unsafe driver of any age.

64. Dr. Schler explained the principle of heteroschistosity. The

principle of heteroschistosity means that there is an increasing variability

between individuals of increasing age as for as their physical health and their

functional capacity. In light of this principle, medical examinations are

increasingly likely to detect medical impairments of both a pathological and a

normative nature as individuals increase in age.

65. In Dr. Schler's opinion, functional assessment is the most appropriate

method of testing individuals to determine physical and mental capabilities.

Functional assessment is one of the big trends in geriatric medicine and in the

past few years has been proven to have predictive value for morbidity and

mortality.

66. Dr. Schler examined ESE Form No. 479, which is the application for a

license to drive a school bus, and found it to be grossly inadequate to safely

screen a driver of any age.

67. Florida's physical examination for school bus drivers could be

substantially improved by assuring the quality and competence of the physician

and his familiarity with the particular procedures used, and by adding more

"hands-on" procedures. The current examination form requires only that "vital

signs" be taken and a basic "20/20" vision test be performed, and then asks the

physician to answer 12 questions "yes" or "no" with a "brief explanation" for

any "no" answer. The physician's certification was recently amended to include

the limiting language "on that date" regarding the school bus driver's

condition.

68. Dr. Schler believes Florida's screening procedure could be made

adequate for school bus drivers if certain additional tests and procedures were

added to the current form. Dr. Schler specifically mentioned a better medical

history, a better physical examination, including a complete neurological exam,

and a mental status examination such as the Folstein Mini Mental Status Test,

and additional testing of vision and hearing, including measuring static and

dynamic visual acuity, night vision, response to glare, color vision, visual

fields and depth perception. She also believes that a more extensive history of

the use of medications and alcohol should be included.

69. According to Dr. Schler, the more comprehensive testing would not be

difficult and would not require expensive equipment. The additional equipment

required for more precise vision testing could be found at most optometrist's

offices in addition to the equipment normally found in a doctor's office.

Further, these tests can be effectively and inexpensively accomplished through

cooperative arrangements with established vision-related companies like Pearle

Vision Center.

70. Dr. Schler makes the clear distinction between the abilities of a

healthy individual as opposed to a sick person of any age. An example she gave

is that cardiac sudden death is estimated to occur in thirty percent of all

people who have heart disease. Forty-year old men or women who have heart

attacks have a thirty percent rate of sudden death, the same as with an eighty

year old man or woman. Chronic heart disease can be easily diagnosed with a

physical examination, according to Dr. Schler.

71. Dr. Schler believes that vascular disease could be screened to

eliminate the risk of strokes. Dr. Schler also states that a lot of vascular

disease is asymptomatic for the first twenty to thirty years but can be

identified with testing.

72. In Dr. Schler's opinion the standard confidence rate, with which you

predict accuracy in the kinds of physical examinations which she described, is

approximately ninety-five percent, i.e., a person's capabilities can be

predicted with ninety-five percent accuracy from the examinations given by Dr.

Schler and her colleagues.

73. In Dr. Schler's practice she finds that she screens out a person as

unsafe to drive prior to the DMV doing so through their driver license retesting

program.

74. Dr. Schler stated that the application for a license to drive a school

bus, although she feels it is inadequate to test school bus drivers, is still

much more comprehensive than the driver licensing and retesting given for a

regular drivers license.

75. In Dr. Schler's opinion, the written statements by Dr. Julian Waller,

M.D., stating that physical changes take place in people that are unmeasurable

was the state of medicine ten or twenty years ago. Currently, in Dr. Schler's

opinion, medical doctors are very good at screening out even subtle changes of

illness and aging especially as related to driving ability.

76. Dr. Schler clearly believes that in healthy older drivers, who have

the benefit of experience in driving a school bus, experience has been proven to

be a major benefit in terms of safety.

77. According to Dr. Schler, age should only be used as an added safety

factor if there were no other way of safely and effectively testing school bus

drivers. In her opinion, however, the State of Florida can today efficiently,

cheaply and accurately test these drivers annually to determine which drivers

are safe and which drivers are not.

78. Dr. Schler's testimony and opinions are taken as creditable and are

accepted instead of the opinions of Dr. J. Waller. Dr. J. Waller's opinions and

information are out of date and out of step with the current state of the art in

geriatrics.

D. Individual Performance Testing, Training and

Evaluation

79. Harvey Leonard Sterns, Ph.D., currently holds three titles: 1)

research professor of psychology at the University of Akron, Ohio, 2) Director,

Institute for Life-Span Development and the Gerontology Fellow at the University

of Akron, and 3) research professor of gerontology at Northeastern Ohio

University College of Medicine. Dr. Sterns is an expert in the field of

industrial gerontology.

80. Dr. Sterns has conducted research on driving as it relates to aging.

The research conducted was keyed to the development of a diagnostic battery of

tests to determine areas in which older drivers may have difficulty and to

assist them with the training program so that they may perform at higher levels.

This research also included an individual training approach which was modified

in subsequent years in an attempt to attain maximum efficiency.

81. As a foundation for his research, Dr. Sterns identified three issues

of observable approaches to the driving analysis which are called intrinsic

predictors. These are 1) perceptual style, i.e., how people extract relevant

and irrelevant information from the visual array; 2) selective attention, i.e.,

a measure of central processing ability that is highly predictive of incident

involvement; and 3) perceptual motor reaction, i.e., dealing with simple and

complex choices in complex reactions.

82. Dr. Sterns also researched the actual driving of a school bus in

Alabama. In this research he examined the job of school bus driver from a task

analysis perspective and observed first hand what was actually involved in

driving the school bus.

83. Based on this experience Dr. Sterns believes that driving a school bus

on a specified route is different than normal everyday driving because, for

example, the school bus driver is clearly aware of problem situations coming up

such as demanding intersections or curves or other areas of potential danger.

84. Dr. Sterns points out that school bus accidents are reported any time

anything happens to the bus, including a bus getting stuck in the mud,

scratched, or backed into a pole or into another bus. This is described in the

literature as an "accident or a crash." The majority of accidents that we know

about are property damage as opposed to accidents involving injury or

fatalities.

85. Dr. Sterns stated that Dr. Julian Waller in his book Injury Events

states that school bus safety is not a major safety problem because out of

approximately twenty million children who are transported by school busy every

year there are twenty fatalities.

86. School bus transportation may well be the safest form of

transportation there is.

87. Dr. Sterns cites numerous authorities and studies done both in the

United States and Europe which support his opinion that experience is a critical

factor in the ability to safely drive a school bus.

88. Competency and skills involved in driving a school bus could be

greatly enhanced by additional supervised on-the-road training experience

together with training evaluations as opposed to using the age as criterion.

89. The job of driving a school bus involves much more than just driving.

Dr. Sterns cites the Iowa 1986 data which contained eighteen fatalities and of

those, three fatalities were actually on the bus. Therefore he believes that a

check ride with passengers actually on the bus is an important part of the

observation of the performance level of the school bus driver.

90. According to Dr. Sterns, the addition of the intrinsic performance

evaluators which have relative predictive validity, such as selective attention,

perceptual style and motor reaction time, together with enhanced training and on

board evaluation of school bus drivers, is far superior to determining who a

good employee performer might be as opposed to the use of any arbitrary

chronological age.

91. It is Dr. Sterns' opinion that if it were necessary to be very

conservative in the setting of standards for school bus drivers, one commonly

used technique in industrial psychology is that of using the median of the young

group. That is, taking the younger group of employees and determining their

median standard of performance and using that median as the cut off score for

any older person with the result that any older person performing below that

median cutoff score would not be allowed to drive a school bus.

92. In metro transit authorities (public transportation), a method used to

judge performance is to have a "checker" ride the bus as a passenger or follow

in a car to see whether or not the bus driver is performing appropriately. This

method would be of practical use in training school bus drivers as well.

93. Past driving record is predictive of future accident risk.

94. In a study of commercial drivers, performance training was

demonstrated, with statistical significance, to reduce accident risk by

approximately 16 percent.

95. Performance evaluation can appropriately exclude young drivers who

have functional problems related to drug or alcohol use or neurological

deficits.

96. Performance training has been developed and demonstrated to be

effective at improving the performance level of both older and younger adult

drivers.

97. Performance evaluation through "on board" check rides, a "follow car"

procedure, or closely "monitoring" drivers can reduce accident risk, especially

when such evaluation is based upon an accurate task analysis.

98. The 1969 Promisel Study as discussed by Dr. Sterns also relates the

benefit of experience even for drivers who began to drive a school bus in their

sixties, because even these drivers show an improvement in their driving ability

with training and experience. The study also states on page 90 that there is no

evidence to show that the severity of an accident is related to driver age and

further that more than half or 50-60 percent of the difference that occurs in

accident rate can be predicted only by factors other than age.

99. Performance evaluation over a period of several days, as occurs in

Florida's public school bus driver licensing process, is more reliable in

determining driver capability than the single-incidence licensing which is

typical of the private, noncommercial licensing process.

CONCLUSIONS OF LAW

100. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.56(1),

Florida Statutes.

101. At issue is the validity of Rule 6A-3.0141(1)(a) and (5)(a), Florida

Administrative Code, which states in pertinent part:

(1) At the time of initial employment the

school board shall assure that the driver of a

school bus meets the following requirements:

(a) Is under seventy (70) years of

age . . . .

* * *

(5) At the time of reemployment or

reappointment, the school district shall

assure that the driver of a school bus meets

the following requirements:

(a) All the requirements of Rule 6A-

3.0141(1) and (3)(a), FAC.

102. The rule cites Sections 112.044(3), 120.55(1)(a), 234.02, 234.091,

and 234.101, Florida Statutes, as the laws implemented by it. These sections

state in relevant part:

112.044(3): PROHIBITED ACTIVITIES;

EXCEPTIONS.-

(a) Except as provided in paragraph (f)

it is unlawful for an employer to:

1. Fail or refuse to hire, discharge or

mandatorily retire, or otherwise discriminate

against any individual . . . because of age.

* * *

(f) It is not unlawful for an

employer . . . to:

1. Take any action otherwise prohibited

under paragraphs (a), (b), (c), or (e), based

on a bona fide occupational qualification

reasonably necessary to the normal operation

of the particular business.

234.02: Maximum regard for safety and

adequate protection of health shall be

primary requirements which shall be observed

by school boards in routing buses, appointing

drivers, and providing and operating

equipment, in accordance with all

requirements of law and regulations of the

state board.

* * *

234.091: Each school bus driver shall be

of good moral character, of good vision and

hearing, able-bodied, free from communicable

diseases, mentally alert, and sufficiently

strong physically to handle the bus with ease

and to make emergency repairs, and he shall

possess such other qualifications as are

prescribed by the state board, and he shall

hold a valid chauffeur's license issued by

the Department of Highway Safety and Motor

Vehicles.

234.101: (1) The State Board of

Education shall adopt requirements which

school bus drivers must meet prior to

employment by district school boards.

* * *

103. This action is brought pursuant to Section 120.56(1):

(1) Any person substantially affected by

a rule may seek an administrative

determination of the invalidity of the rule

on the ground that the rule is an invalid

exercise of delegated legislative authority.

104. The standard to be applied is found in Section 120.52(8):

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if anyone or more of the following apply:

* * *

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

Of further note in relation to the issues here are two statutes which codify the

state's position on age discrimination. Section 112.044(1) states the

legislative purpose behind Section 112.044(3), one of the sections implemented

by the challenged rule.

Section 112.044(1) LEGISLATIVE INTENT;

PURPOSE.--The Legislature finds and

declares that in the face of rising

productivity and affluence, older workers

find themselves disadvantaged, both in

their efforts to retain employment and in

their efforts to regain employment when

displaced from jobs. The setting of

arbitrary age limits, irrespective of

capability for job performance, has become

a common practice, and certain otherwise

desirable practices may work to the

disadvantage of older persons.

In comparison to the incidence of

unemployment among younger workers, the

incidence of unemployment, especially long-

term unemployment with resultant

deterioration of skill, morale, and employer

acceptability, is high among older workers,

whose numbers are great and growing and whose

employment problems are grave. In industries

affecting commerce, the existence of

arbitrary discrimination in employment

because of age burdens commerce and the free

flow of goods. It is the purpose of this act

to promote employment of older persons based

on ability rather than age and to prohibit

arbitrary age discrimination in employment.

[Emphasis Supplied]

Finally, Section 760.10(1)(a) and (8)(a) of the Human Rights Act of 1977 outlaws

age discrimination with one pertinent exception:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual . . . because of such

individual's . . . age . .

* * *

(8) Notwithstanding any other provision

of this section, it is not an unlawful

employment practice under ss. 760.01-760.10

for an employer . . . to:

(a) Take or fail to take any action on

the basis of . . . age . . . in those

certain circumstances in which . . .

age . . . is a bona fide occupational

qualification reasonably necessary for the

performance of the particular employment to

which such action or inaction is related.

105. The Florida Supreme Court in Morrow v. Duval County School Board,

514 So.2d 1086 (Fla. 1987), invalidated the mandatory retirement of a teacher at

age 70. In doing so, the Court found that Section 231.031 (the statute which

contained the age 70 limitation) "should be read in pari materia with section

760.10 and section 112.044, in a manner that gives effect to the purposes of all

three statutory provisions." Morrow at 1088. Further, the Court noted the

similarity between Section 112.044, Section 760.10, and the federal Age

Discrimination in Employment Act (ADEA), 29 U.S.C. Section 621 et seq., and

stated:

The policy behind Florida's statute is

similar to the policy behind the federal

legislation, "to promote employment of

older persons based on their ability rather

than age" and to "prohibit arbitrary age

discrimination in employment." [Citations

omitted] As remedial legislation, Florida's

act should be liberally construed to promote

its intended purpose.

106. The question here is whether the six words in the rule (a) enlarge,

modify, or contravene the laws implemented; or (b) are arbitrary or capricious.

107. Clearly none of the statutes implemented mandate or even mention a

mandatory retirement age for school bus drivers. In fact, Section 112.044(3)

specifically outlaws such a mandatory retirement age unless it is shown that age

is a bona fide occupational qualification (BFOQ). If Sections 112.044, 760.10,

and the other statutes implemented are read in pari materia, the inescapable

conclusion is that the rule enlarges and contravenes the laws implemented unless

the BFOQ exception applies.

108. The leading case outlining the test for establishing a BFOQ is

Western Air Lines Inc. v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d

321 (1985). Criswell utilized and crystallized the standard set forth in Usery

v. Tamiami Trail Tours Inc., 531 F.2d 224 (5th Cir. 1976). Summarized, the two

pronged test requires

1. The job qualification must be reasonably

necessary to the essence of the business.

The greater the safety factor, the more

stringent may be the job qualifications

designed to ensure safe driving.

2. The age qualification must be something

more than convenient or reasonable; it

must be reasonably necessary to the

particular business. The employer must

be compelled to rely on age as a proxy

for the safety-related job qualifications

validated in the first inquiry.

Id. at 105 S.Ct. 2751. The second prong of the test may be satisfied in two

ways.

a. The employer can establish a factual

basis for believing that all or

substantially all persons over the age

qualification would be unable to perform

safely and efficiently the duties of the

job involved; or

b. The employer can establish that age is a

legitimate proxy for the safety-related

job qualifications by proving that it is

impossible or highly impractical to deal

with older employees on an individualized

basis.

Id. at 105 S.Ct. 2751-52. Finally, the Court in Criswell specified that one way

the employer can meet its burden under the second prong of the test is "to

establish that some members of the discriminated-against class possess a trait

precluding safe and efficient job performance that cannot be ascertained by

means other than knowledge of the applicant's membership in the class." Id. at

105 S.Ct. 2752. The Court also recognized that the BFOQ exception "was in fact

meant to be an extremely narrow exception to the n i a g a " n o i t i b i h o r p l a r e n e g  s t

age discrimination.

109. It is concluded from the evidence that an essential job qualification

which is reasonably necessary is the physical and mental ability to safely drive

a school bus. However, the Department did not carry its burden under the second

prong of the test. The Department essentially proved only that data exists

which shows a higher accident rate among all drivers over age 65.

110. In E.E.O.C. v. State of Mississippi, 837 F.2d 1398 (5th Cir. 1988),

and in E.E.O.C. v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir. 1987),

it is made clear that before an employer can prove that all or substantially all

persons over the age qualification would be unable to meet the standards of safe

performance, the employer must develop, implement and enforce minimum standards

of health and fitness that would justify the BFOQ. This threshold limits an

employer's discretion in establishing a BFOQ defense. "Not only would a finding

of minimum standards limit an employer's discretion, but also it. . . would

ensure both that a good faith decision on required qualifications was made by a

competent authority and that the use of age as a proxy was proper." Id. at P.

1401. In the Mississippi case, as here, the Court found that such minimum

standards were not developed and therefore "there is no essential job

qualification in this case that age can stand as a proxy for." Id. at 1402.

Under such circumstances, the "BFOQ 'escape clause'" is not available. Id. at

1402.

111. Further, in the Pennsylvania case, the Court held that "before a

characteristic can be a reasonably necessary BFOQ, it must be a trait that the

employer at least attempts to require of employees of all ages." Here, the

Department has not attempted to require of all school bus drivers that they

belong to a class with a low accident rate. It is particularly noted that young

drivers have similar accident rates to old drivers, yet a licensed driver could

conceivably become a school bus driver in Florida at age 19, after five years of

licensed driving including the learner's license issuable at age 14. Yet, the

data analysis is clear that such young drivers have similar accident rates as

drivers over age 65.

112. The only justification given by the Department for its use of age as

job qualifications was in the form of statistical proof. In rejecting

"statistical evidence indicating that there is a correlation between age and

accident frequency," the Court in Maki v. Commissioner of Education, 568 F.

Supp. 252 (N.D.N.Y. 1983), summarily affirmed, 742 F.2d 1437 (2d Cir. 1984),

noted:

Regardless of the efficacy of these

statistics, these reports, in and of

themselves, are an insufficient showing

"because an examination may reveal whether

a job applicant possesses any of the

passenger-endangering physical liabilities

that many older people have. In other

words, the correlation [between age and

accident frequency] is to physical

deficiencies, not to age per se." Usery v.

Tamiami Trail Tours, Inc., supra, 531 F.

2d at 237.

Similarly, here the Department has failed to carry its burden of establishing

that age per se may be used as a proxy based only on statistical evidence of age

and accident rate. This is particularly so where the testimony of all the

Department's witnesses specified a rise in age/accident rate at age 65, not 70.

Hence no age was shown to be an appropriate proxy for the job qualification.

113. The Department also produced testimony by Dr. Julian Waller to

support its position that it is impossible or highly impractical to deal with

older employees on an individualized basis because there are not adequate

physical and mental examinations which could effectively screen for traits that

would preclude safe and efficient job performance. However, Dr. Waller's

testimony was found to be less credible than the testimony of Dr. Schler wherein

Dr. Schler identified the type and scope of examinations which could be

practically, easily, and efficiently done to achieve the end of safe job

performance by older school bus drivers.

114. Taken in its best light, the evidence adduced by the Department

failed to meet the BFOQ standards and the BFOQ defense is rejected. The

mandatory retirement age of 70 directly contravenes the law implemented, Section

112.044, and is an invalid exercise of delegated legislative authority pursuant

to section 120.52(8)(c).

115. It is also concluded that the mandatory retirement age in the rule is

arbitrary and is therefore an invalid exercise of delegated legislative

authority under Section 120.52(8)(e). The rule is not reasonably related to the

purpose of the enabling legislation and it is not appropriate to the ends

specified in the legislative act. Agrico Chemical Co. v. Department of

Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). The clearly

expressed legislative purpose of Section 112.044 is to prohibit arbitrary age

discrimination and the use of arbitrary age limits. "An arbitrary decision is

one not supported by facts or logic, or despotic." Id. at 763. The facts set

forth in the competent substantial evidence in this case is that the age limit

in the rule is arbitrary. In fact, the Department's own witness testified that

the use of age 70 was arbitrary because the use of age 65 is better supported by

the statistical accident rate data. There is simply no factual evidence to show

that age 70, as opposed to 65 or 68 or 71 or 75 is appropriate and is reasonably

related to the legislative purpose.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is

ORDERED that Rule 6A-3.0141(1)(a) , Florida Administrative Code, which

states "Is under seventy (70) years of age," constitutes an invalid exercise of

delegated legislative authority.

DONE and ORDERED this 14th day of December, 1988, in Tallahassee, Florida.

_________________________________

DIANE K. KIELSLING

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 1988.

APPENDIX TO FINAL ORDER, CASE NO. 88-0847RX

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on the proposed findings of fact submitted by the

parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida

Education Association/United

1. Each of the following proposed findings of fact are adopted

in substance as modified in the Final Order. The number in

parentheses is the Finding of Fact which so adopts the

proposed finding of fact: 1-7(60-66); 8-17(68-77); 18(68);

19-26(79-86); 27-31(88-92); 38(98); 41-52(47-58); 54(59);

75(10); 83(13); 88(20); 89(21); 91(22); 95(23); 96-98(27-

29); 102-106(41-45); and 110 & 111(27)

2. Proposed findings of fact 32 and 33 are irrelevant.

3. Proposed findings of fact 34-37, 39, 40, 53, 55, 56, 90,

112, and 113 are unnecessary.

4. Proposed findings of fact 57-74, 76-82, 84-87, 92-94, 99-

101, and 107-109 are subordinate to the facts actually found

in this Final Order.

5. Proposed findings of fact 114-116 are rejected as being

unsupported by the competent, substantial evidence.

Specifically, the exhibits cited were not admitted in

evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Florida

Teaching Profession/National Education Association

1. Each of the following proposed findings of fact are adopted

in substance as modified in the Final Order. The number in

parentheses is the Finding of Fact which so adopts the

proposed finding of fact: 1-9(1-9); 10(11); 11(12); 13(64);

14(72); 15(67); 16 & 17(68); 18(70); 19-23(93-97); 26(99);

27(86); and 36 & 37(46)

2. Proposed findings of fact 12, 24, 25, 28-33, and 35 are

subordinate to the facts actually found in this Final Order. 3. Proposed

finding of fact 34 is unnecessary.

4. Proposed finding of fact 38 is unsupported by the competent,

substantial evidence. Specifically it makes reference to an

exhibit not admitted in evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent,

Department of Education

1. Each of the following proposed findings of fact are adopted

in substance as modified in the Final Order. The number in

parentheses is the Finding of Fact which so adopts the

proposed finding of fact: 8(3); 11-16(13-18); 18-20(19);

21(23); 25-32(27-34); 34-39(35-40); 51(60); 53(79); and

54(47).

2. Proposed findings of fact 1, 3-7, 10, 22, 23, 33, 43-43 and

48 are subordinate to the facts actually found in this Final

Order.

3. Proposed findings of fact 2 and 9 are unnecessary.

4. Proposed findings of fact 17, 44-46, and 56 are irrelevant.

5. Proposed findings of fact 40, 47, 49, 50, 52, 55, and 57-60

are unsupported by the competent, substantial evidence.

COPIES FURNISHED:

Lorene C. Powell

Assistant General Counsel

FEA/United

208 West Pensacola Street

Tallahassee, Florida 32301

Carl J. Zahner

Carolyn S. Holifield

Assistant General Counsels

Department of Education

Knott Building

Tallahassee, Florida 32399

Vernon T. Grizzard

Attorney at Law

116 South Monroe Street

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code

1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32301

Honorable Betty Castor

Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 ENTITLED, TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FINDING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.