92-000550RX Richard Barsallo, Maria Barsallo, Susan Beatty, Karen C. Blizzard, Et Al. vs. Palm Beach County School Board Status: Closed DOAH Final Order on Thursday, May 7, 1992.

Summary: Rule which sets criteria for student busing and school board's application neither invalid nor arbitrary/capricious and consistent with enabling statute

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD BARSALLO, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0550RX

)

THE SCHOOL BOARD OF PALM BEACH )

COUNTY, FLORIDA, )

)

Respondent. )

_________________________________)

FINAL ORDER

A hearing was held in this case in Boca Raton, Florida, on February 28,

1992, before Arnold H. Pollock, a Hearing Officer with the Division of

Administrative Hearings.

APPEARANCES

For the Petitioner: Mark L. Bregar, Esquire

Sachs & Sax, P.A.

Post Office Box 810037

Boca Raton, Florida 33431

For the Respondent: Bob Rosillo, Esquire

Palm Beach County School Board

3970 RCA Boulevard, Suite 7010

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Respondent's Rule

6A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a

properly promulgated rule.

PRELIMINARY MATTERS

By undated Petition, the Petitioners, parents of children attending public

school provided by the Respondent, Palm Beach County School Board, challenge the

Respondent's Rule 6A-3.001 as an invalid rule. Petitioners' claim that the

Respondent's interpretation of that rule to deny their children bus

transportation to and from the school to which they have been assigned has

invalidly deprived them of a service to which they are entitled under Florida

law and endangers their health, safety, and well-being in violation of the

mandate of Section 234.02, Florida Statutes. It is also, Petitioners' claim,

without statutory or other legal basis and is, therefore, invalid.

The Petition was filed with the Division of Administrative Hearings on

January 29, 1992. Thereafter, by Notice of Hearing dated February 3, 1992, the

undersigned set the matter for hearing in Boca Raton on February 28, 1992, at

which time it was held as scheduled.

At the hearing, Petitioners presented the testimony of Jacob Wattenberg, a

traffic engineer and expert in traffic analysis and route determination; Diane

Gutermuth, one of the Petitioners; and Tandy M. Stoltz, vice president of Stoltz

Management, the organization which developed and manages the apartment complex

in question where the Petitioners reside. Petitioners also introduced

Petitioners' Exhibits 1 through 3. Respondent presented the testimony of

Sergeant Susan J. Szczepanski, the officer in charge of the school crossing

division of the Palm Beach County Sheriff's Office; Yevola Falana, Safety

Coordinator for Employee and Student Programs at the Palm Beach County School

Board; George E. Baker, Director of Transportation for the Board; and Larry H.

McEntire, Chief, Bureau of School Bus Services for the State of Florida's

Department of Education. Respondent also introduced Respondent's Exhibits A

through D. The parties agreed to the admission of Joint Exhibits 1 through 3.

A transcript was provided and both parties submitted Proposed Findings of

Fact which have been ruled upon in the Appendix to this Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, School

Board of Palm Beach County, (Board), was the agency responsible for providing

public school bus transportation to eligible students in the public schools of

Palm Beach County, Florida. The Petitioners were the parents of children

enrolled in and attending Hammock Pointe Elementary School, a public school in

Palm Beach County operated by the Respondent.

2. Prior to January 17, 1992, the Petitioners' children were enrolled in

and attending Whispering Pines Elementary School, operated by the Board, and,

because that school was located sufficiently far from the students' homes, were

receiving public school bus transportation furnished by the Respondent.

3. After the beginning of the 1991-1992 school year, the Respondent

advised the Petitioners that in January, 1992, their children would be

reassigned from Whispering Pines to Hammock Pointe Elementary School located

somewhat closer to their residences at the Boca Palms apartment complex

located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the

new school was to begin on January 21, 1992. The Petitioners were also advised

that because Boca Palms was located within two miles of Hammock Pointe School,

based upon the Board's interpretation of the pertinent rules regulating school

bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided

with public bus transportation to that school. This interpretation was made by

the Board's Director of school bus transportation.

4. Rule 6A-3.001, which implements the provisions of Sections 230.23 and

234.01, Florida Statutes, requires school boards to provide bus transportation

to those students whose homes are beyond a reasonable walking distance from the

assigned public school. The term, "reasonable walking distance", for a student

who is not handicapped, is defined by the rule as:

[A]ny distance not more than two (2) miles

between the home and school or one and one-

half (1 1/2) miles between the home and the

assigned bus stop. Such distance shall be

measured from the closest pedestrian entry

point of the property where the student

resides to the closest pedestrian entry point

of the assigned school building or to the

assigned bus stop. The District shall

determine the shortest pedestrian route

whether or not it is accessible to motor

vehicle traffic.

5. Though the rule does not specifically define it, the Board's Director

of bus transportation interpreted the phrase, "closest pedestrian entry point of

the property where the student resides" as meaning that point where the public

right of way ends whether or not that point constitutes a pedestrian entry

point. Measuring the shortest pedestrian route from the school building to the

junction of the public street adjacent to the apartment complex and the complex

entry drive, the Board indicates a distance of 1.9 miles, within the rule

definition of reasonable walking distance. Mr. Wattenberg, the Petitioners'

expert, who personally walked the route with a walking wheel, determined the

distance from the gate to the school to be 10,692 feet. The distance from the

aforementioned junction, down the complex entry drive to the actual gatehouse,

is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance

leaves a balance from the school to the junction of 10,415 feet. This is barely

under 2 miles, (10,560 feet).

6. From the gate to the closest residence within the complex is an

additional 255 feet, and from the gate to the southwest corner of the complex is

an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant

on the basis of his interpretation of the term "entry point of the property"

which, he feels, is the individual students' homes. All of those would lie well

outside the 2 mile cut-off point. His position has some merit in light of the

fact that the complex is surrounded by either a man made or vegetative fence

which restrict pedestrian entry and exit to through the gate. Were the children

to be able to walk directly from their homes to the school, they would have less

distance to travel because all homes are currently located in an area to the

south of the gate, and the walking route, for the most part, is to the south and

east of the complex. However, under the circumstances here, the children have

to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and

then from 255 to 1,000 feet more from the gate to their homes. Together, this

is all in excess of 2 miles, but the Department's interpretation makes the

controlling distance less than 2 miles.

7. Even if the distance is less than 2 miles, however, the Board will

provide transportation if it is determined that hazards exist along the route

that would endanger the student. Here, the Board has also taken the position

that the route to be followed by the students does not present any hazardous

conditions within the meaning of Section 234.021, Florida Statutes. This

position is supported by the opinion of Sergeant Szczepanski, the Sheriff

Department's head of the school crossing division. She is familiar with the

route proposed from Boca Palms to the school and drove it at the request of the

Board's head of risk management. Her viewing convinced her that there was a

hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with

that individual was satisfied that the danger has been abated. If she felt it

were unsafe she would say so and when she has done so in the past, the Board has

uniformly acceded to her determination and provided bus transport. Whenever

hazardous conditions are identified, the bussing is provided only so long as

those conditions persist, and when the hazard is removed, the bussing is

terminated.

8. Ms. Falana, the Board's risk management expert reviewed the route

several times while the school was being considered and built and found nothing

which, to her, met the statutory criteria. As she saw it, going by the

statutory criteria, there was no need even for crossing guards, but there is at

least one guard along the projected route and a total of three for the entire

school area. Ms. Falana walked the route herself and did not merely drive it.

She was specifically looking for hazards to children and found none. She

coordinated with Sgt. Szczepanski and determined that there were no complaints

registered by any of the parents with the bussing division, with her office, or

with Sgt. Szczepanski's office.

9. Ms. Falana recognizes that along the projected route there is a dogleg

with a rise in the side of the street, (without a walkway), where a child might

slip down into the roadway. She feels this is not a problem, however, because

there are other similar areas in the county and there has never been an accident

at one of those sites. Only where children have to cross a major highway or an

unusual traffic situation is a crossing guard required.

10. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's

assessments of the hazard situation and contends there are several. One is at

the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the

view of drivers. The intersection at 8th Street and 57th Avenue is also

dangerous but there will be a crossing guard there. From 57th Avenue east the

route is on a service road which runs along a canal that has no sidewalk or

guardrail.

11. Mr. Wattenberg, an adult, required 45 minutes to traverse the route

which has 10 cross streets intersecting with it. There will be between 40 and

45 children who will have to make this walk at least twice a day, five days a

week, in all kinds of weather. The evidence is not clearly dispositive of the

issue.

12. According to Mr. Baker, the Board's director of transportation, the

decision on whether to provide bus transport is made on the basis of both

distance and hazardous conditions. He measured the distance electronically with

a measuring device calibrated for accuracy both before and after each use.

There is no dispute as to the actual distances involved, only at what point the

distance is to be measured. School Board policy requires that the distance be

measured according to the terms of the Department of Education rule, (6A-

3.001(3)), which refers to "... the closest entry point of the property where

the student resides." He measured the shortest route from the school to that

point where the public sidewalk meet the private property on the abutting

thoroughfare and found the distance to be 178 feet short of two miles. On that

basis, the transportation was denied.

13. Mr. Baker also looked at the issue of hazardous conditions and relied

on the determination of Ms. Falana who has the authority to determine if there

is such a condition. Here, she determined there was no hazard requiring

transport within the criteria in the statute.

14. To be certain of his position, Mr. Baker wrote to the State Department

of Education which rendered an opinion that the starting point for measurement

is the point of demarcation between the public street and the private property.

According to Mr. McBride, the Department of Education's school bus chief, there

is no statutory definition of "pedestrian entry point." However, the

Department, and the state auditors, always use the property line between

private and public property as the line of demarcation. In this case,

then, even though the entry gate is 277 feet further in from the property line,

the entry to the property, for bussing purposes, is at the property line at the

street. To the best of his knowledge, there has been no official determination

on this point by court, rule, or statute.

15. Ms. Gudermuth, one of the Petitioners, indicates that at the present

time, since the school change, the management at Boca Palms has been providing

bus transport for the 35 or so children who are involved. If the complex did not

do so, she would not allow her seven year old child to walk to the school. She

could take her daughter to school in the morning, but because she works outside

the home, could not come to get her after school without switching to part time

work. Many other parents are in the same situation. Car pooling is not a viable

option because she, and each other parent who participated, would still need to

take time off from work when it was her or his turn to drive.

16. Boca Palms has indicated that though it is currently providing

transportation to its tenants by leased bus, it cannot

continue to do so. Because of the cost of $1.00 per mile per student, plus

insurance and driver salary, the cost cannot reasonably be passed on to tenants

through rent increases because of existing economic conditions. When the issue

was raised with several of the parents, they were uniformly opposed to it.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of these proceedings. Section 120.57(1), Florida

Statutes.

18. The School Board of Palm Beach County has made an administrative

determination denying school bus transportation to children living in the Boca

Palms Racquet Club who attend Hammock Pointe Elementary School on the basis that

the distance between the school and the residence is less than the two mile

criteria set out in the Board's policy, based on a Department of Education rule,

for the provision of bus transportation, and that no hazardous condition

has been shown sufficient to create an exception to the rule's and policy's

application. The burden is on the Petitioners to demonstrate, by a

preponderance of the evidence, that the Board's interpretation and application

of it's policy is incorrect.

19. The law is clear in this state that ordinarily, administrative or

legislative determinations or findings of fact are given great weight and should

not be lightly tampered with or voided absent a clear showing that such

determinations or findings are arbitrary, capricious, oppressive, erroneous, an

abuse of agency discretion or an invalid exercise of delegated legislative

authority. Charlotte County vs. Fiske, 350 So.2d 578 (Fla. 2 DCA 1977).

However, this deference is not absolute, and when an agency's construction or

interpretation clearly contradicts the unambiguous language of a rule, that

construction or interpretation cannot stand. Woodley v. Department of Health and

Rehabilitative Services, 505 So.2d 676 Fla. 1 DCA 1987).

20. Generally, in Florida, when an agency acts in good faith, its

decisions will not be overturned by the courts even though those decisions may

be based on facts upon which reasonable men may differ and which may appear to

some to be erroneous. Volume Service Div., etc. v. Canteen Corp., 369 So.2d

391 (Fla. 2DCA 1979). Further, when rules and the meaning assigned to them by

officials charged with their administration have been in effect over an extended

period of time, they will usually be given great weight unless shown to be

clearly erroneous, State Department of Commerce v. Matthews Corp., 358 So.2d 256

(Fla. 1DCA 1978), and an agency's administrative interpretation of its own rules

will usually be given great weight by the courts. Franklin Ambulance Service v.

Department of Health and Rehabilitative Service, 450 So.2d 580 (Fla. 1 DCA

1984).

21. The provisions of Section 234.01(1), Florida Statutes, require local

school boards to provide transportation for each student up through grade 12

when, and only when, transportation is necessary and to students whose homes are

more than a reasonable walking distance, as defined by rules of the state board,

from the nearest school. Children up through grade 6 shall be provided

transportation regardless of distance if the walking route would subject them to

hazardous conditions.

22. Section 234.021(3)(a)1, Florida Statutes, defines a hazardous walkway

parallel to the road as one:

... where there is not an area at least 4 feet

wide adjacent to the road, having a surface

upon which students may walk without being

required to walk on the road surface. ...

23. In this case, several experienced individuals, both the Board's risk

management expert, Ms. Falana, and Sergeant Szczepanski, head of the Sheriff's

Department's school crossing guard program, examined the route and concluded it

was not hazardous. On the other hand, Mr. Wattenberg, a traffic engineer and an

expert in traffic analysis, opined that in certain sections, it was hazardous.

The conflicting testimony regarding this point does not clearly dispose of the

issue. It cannot be said then, that the Petitioner's have established, by a

preponderance of the evidence, that the route to be traveled by the Boca Palms

children is sufficiently hazardous to constitute an exception to the two mile

rule though potential hazards may exist.

24. This, then, leaves for resolution the correctness of the Board's

determination that the distance between the closest pedestrian access point at

Boca Palms and that at Hammock Pointe Elementary School is less than two miles

so as to justify denial of Board provided transport.

25. Rule 6A-3.001(3), F.A.C., a rule of the state Department of Education,

as applicable to school bus transportation reads:

A reasonable walking distance for any student

who is not physically handicapped is any

distance not more than two (2) miles between

the home and school or one and one-half (1

1/2) miles between the home and the assigned

bus stop. Such distance shall be measured

from the closest pedestrian entry point of the

property where the student resides to the

closest pedestrian entry point of the assigned

school building or to the assigned bus stop.

The district shall determine the shortest

pedestrian route whether or not it is

accessible to motor vehicle traffic.

26. By its Rule 2.23, the Board has enacted standards consistent with the

state Rule.

27. Mr. Baker, the Board's director of transportation, based on the

information available to him both as to distance and to safety, concluded that

the distance from the school to what he determined to be the pedestrian entry

point of the property where the concerned students reside was 178 feet less than

two miles, and, therefore, those students were not entitled to Board provided

transportation. There is no dispute as to the accuracy of the distances

involved - only as to the pertinent pedestrian entry points. Even then, the

entry point at the school is not questioned.

28. The Board determined that the entry point to the Boca Palms complex

was at the juncture of the complex's formal gate house drive with the public

street running along the eastern boundary of the complex. Petitioners,

supported by Mr. Wattenburg, have taken the position that since the public has

access to the entry way up to the gate house, the gate house location, some 277

feet from the public street junction, is the controlling pedestrian entry point.

29. The evidence of record does not indicate any other recognized

pedestrian entry points on the perimeter of the complex though, to be sure,

individuals can enter through the construction area to the north and through the

vegetation along the southeast perimeter line. Taken together, however, the

Department's interpretation, as restrictive as it may be, cannot be said to be

arbitrary, capricious, erroneous, illegal, oppressive or an invalid exercise of

delegated legislative authority, especially in light of the fact it is

consistent with the state Department of Education rule and stated practice.

Instead, the evidence demonstrates that the Board's action, while possibly

imposing some hardship on Petitioners, is consistent with the enabling statute

and the Department of Education's rule on the same subject. Petitioners have

failed to establish otherwise.

30. Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore:

ORDERED that the Petitioners' challenge to Rule A-3.001(3), F.A.C., and

the School Board of Palm Beach County's Policy 2.25 based thereon, pertaining to

school bus transportation is hereby dismissed.

DONE and ORDERED in Tallahassee, Florida this 7th day of May, 1992.

_________________________________

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May, 1992.

APPENDIX TO FINAL ORDER

IN CASE NO. 92-0550-RX

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties to this case.

FOR THE PETITIONERS:

1. & 2. Accepted and incorporated herein.

3. - 6. Accepted and incorporated herein.

7. - 10. Accepted.

11 & 12. Accepted.

13 & 14. Accepted and incorporated herein.

15 & 16. Accepted.

17 & 18. Accepted and incorporated herein.

FOR THE RESPONDENT:

1 - 3. Accepted and incorporated herein.

4. Accepted.

5. & 6. Accepted and incorporated herein.

7. Accepted and incorporated herein.

COPIES FURNISHED:

Max Bregar, Esquire

Sachs & Sax

Post Office Box 810037

Boca Raton, Florida 33431

Robert A. Rosillo, Esquire

School Board of Palm Beach County

3970 RCA Blvd. Suite 7010

Palm Beach Gardens, Florida 33410

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol, Room 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Thomas J. Mills, Superintendent

Palm Beach County School Board

3323 Belvedere Road

West Palm Beach, Florida 33402

Honorable Betty Castor

Commissioner of Education

Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to

Judicial Review pursuant to Section 120.68, Florida Statutes. Review

proceedings are governed by the Florida Rules of Appellate Procedure. Such

proceedings are commenced by filing 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, (or, when appropriate, a

certificate of indigence), 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.