99-001707
Usa Training Company, Inc. vs.
Department Of Highway Safety And Motor Vehicles
Status: Closed
Recommended Order on Thursday, October 28, 1999.
Recommended Order on Thursday, October 28, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8USA TRAINING COMPANY, INC., )
13)
14Petitioner, )
16)
17vs. ) Case No. 99-1707
22)
23DEPARTMENT OF HIGHWAY SAFETY )
28AND MOTOR VEHICLES, )
32)
33Respondent. )
35__________________________________)
36RECOMMENDED ORDER
38Pursuant to Notice, t his cause was heard by Linda M. Rigot,
50the assigned Administrative Law Judge of the Division of
59Administrative Hearings, on August 3 and 4, 1999, in Tallahassee,
69Florida.
70APPEARANCES
71For Petitioner: Mark K. Logan, Esquire
77Smith, Ballard & Logan, P.A.
82403 East Park Avenue
86Tallahassee, Florida 32301
89For Respondent: Enoch Jon Whitney, General Counsel
96Michael J. Alderman, Esquire
100Department of Highway Safety
104and Motor Vehicles
107Neil Kirkman Building, Room A432
112Tallahassee, Florida 32302-0504
115STATEMENT OF THE ISSUES
119The issues presented are whether the Department has the
128authority to approve Petitioner's distance-learning driver
134improvement course, whether Petitioner's delivery system is
141effective, and whether Petitioner's method of delivery complies
149with statutory and rule requirements.
154PRELIMINARY STATEMENT
156Petitioner submitted its application for ap proval of a
165driver improvement course in 1997. By letter dated March 8,
1751999, the Department denied Petitioner's application, and
182Petitioner timely requested an evidentiary hearing regarding that
190denial. This cause was thereafter transferred to the Division of
200Administrative Hearings to conduct the evidentiary proceeding.
207Petitioner presented the testimony of Barbara Lauer; Phil
215Ward; Marshall Scott Owens; Rick Whitworth; Tommy Edwards; Milton
224Grosz; Jon Crumpacker; Terry Heller, Ph.D., and Sandra Lambert.
233The Department presented the testimony of Richard I. Wark, Ph.D.,
243and Sandra Lambert. Additionally, Petitioner's Exhibits numbered
2501-12 and 14-20 and the Department's Exhibit numbered 1 were
260admitted in evidence.
263FINDINGS OF FACT
2661. Petitioner is a provider of basic driver improvement
275courses in a number of states, including Florida, Texas, and
285New York. These courses use the traditional classroom setting.
2942. Petitioner also provides its course via distance
302learning in California and Texas. That course is conducted using
312video and computer technology. The Texas course has been
321evaluated three times by the Texas education agency, which has
331determined that the delivery system is effective in achieving
340behavioral and attitudinal changes in drivers taking the course.
3493. In 1996 Petitioner's representatives met informally with
357the Department's representative, Milton Grosz, to discuss
364offering in Florida Petitioner's interactive video course which
372is the same course as Petitioner's already-approved basic driver
381improvement course. As a result of that meeting, Grosz, who
391heads the Department's review committee, researched the
398literature regarding the effectiveness of distance learning. His
406research revealed a growing body of literature supporting
414learning by interactive video but none in the field of driver
425improvement. Grosz noted that other providers would complain
433that the course's methodology does not work or that it offers the
445potential for cheating but the literature did not support such
455claims. Grosz recommended that the Department pilot test
463Petitioner's course in a limited geographic area.
4704. In 1997, Petitioner's representative in Tallahassee met
478with the Department's Director and explained that Petitioner
486proposed to introduce its distance-learning version of its course
495in Florida. After being encouraged to submit an application for
505approval, Petitioner did so on August 5, 1997.
5135. On August 20, 1997, Barbara Lauer, the Chief of the
524Department's Bureau of Driver Education and DUI Programs, wrote
533to Petitioner advising that the Department had decided to proceed
543with the development of interactive video methodology, limited to
552a single judicial circuit until the Department could pilot test
562that delivery system for effectiveness in Florida. That letter
571had been approved by the Director and the Assistant Director of
582the Department's Division of Driver's Licenses.
5886. Petitioner's proposal for Florida uses video and
596computer technology. The process begins when a person cited for
606certain non-criminal traffic infractions elects to attend a basic
615driver improvement course approved by the Department in lieu of a
626court appearance. A person choosing Petitioner's interactive
633video course would check out a laptop computer and four-hour
643video tape from a Blockbuster Video outlet after signing a
653contract. The contract provides that the student pay a fee,
663agree to the terms of the course, acknowledge that he or she will
676be subject to a validation process, acknowledge that he or she
687will be tested as to the content and must answer correctly 32 of
700the 40 questions in order to pass the course, and forfeit all
712money paid if he or she does not pass the course.
7237. Once the student agrees to the contractual terms, the
733student takes the video home, watches the video, and uses the
744laptop computer, linked to a data-base via modem, to answer
754questions generated by the computer based on the course content.
764The student must log into Petitioner's system several times
773during the course process. He or she is then subjected to a
785combination of verification and content questions including a
793final exam. The student also must answer unique identifying
802questions particular to the student taking the course which are
812intended to ensure that the person answering the questions via
822the computer is the student who registered for the course.
8328. The course contains situational learning segments where
840the student is encouraged to reflect on the driving situation
850covered. Throughout the course process the student is encouraged
859to use Petitioner's 1-800 number, manned by Florida-certified
867instructors 24 hours a day, should the student have a question
878about the course content or wish to discuss other driving
888situations. A different 1-800 number is provided for technical
897assistance 24 hours a day.
9029. Upon return of the equipment to the Blockbuster Video
912location, the student is informed as to whether he or she passed
924or failed the course. If the student passed, he or she is issued
937a certificate of completion from Petitioner's central office. If
946the student failed, he or she is given a phone number to call
959which results in the student being given a verbal quiz by a
971course instructor, who can then determine that the student has
981passed the course. Five to seven percent of students typically
991fail the course.
99410. Petitioner would establish a single Florida base of
1003operations if the course were approved for use in this State.
1014The address of each Blockbuster Video store where the course
1024computer and materials are available would be registered with the
1034State as a school.
103811. Petitioner's interactive video course would be
1045available in many languages and would be offered in several
1055versions for handicapped and hearing-impaired individuals. Thus,
1062the course would be uniquely accessible to drivers whose
1071handicaps may not be accommodated by places where the traditional
1081classroom version of the course may be offered. The course would
1092be available also for drivers whose work schedules or personal
1102obligations do not allow them to take the basic driver
1112improvement course when offered in a classroom setting.
112012. Several requests for additional information were made
1128by the Department, and Petitioner responded to all. By letter
1138dated July 6, 1998, the Department notified Petitioner that its
1148application for course approval was complete and could be
1157evaluated for content.
116013. The Department routinely reviews applications for
1167driver improvement course approval by using a review committee.
1176The committee determines whether the application meets the
1184requirements of the administrative code (the Department's rules)
1192and the statutes and determines whether the course curriculum
1201should be approved for use in Florida. The review committee
1211members are the only Department personnel who have actually
1220reviewed the curriculum, have sat through the videotaped course,
1229and have used the interactive computer.
123514. The review committee recommended that Petitioner's
1242interactive video course be approved. Accordingly, the
1249Department determined that the course content promotes driver
1257safety, driver awareness, and accident avoidance techniques.
126415. In November 1998, the Director of the Department's
1273Division of Driver's Licenses was contacted by a reporter
1282regarding the use of Petitioner's interactive video course in a
1292single county in Florida. After the article appeared, the
1301Department's Executive Director received numerous letters from
1308Petitioner's competitors.
131016. The Department has never before denied an application
1319which received the approval of its review committee. However, by
1329letter dated March 8, 1999, the Department advised Petitioner
1338that its application for approval was denied for the reasons that
1349the law does not contemplate approval of a basic driver
1359improvement course conducted in a non-classroom setting although
1367the law does not prohibit such approval, that the Department had
1378never before approved such a course, and that the concept of
1389independent study was not the best choice for effectuating
1398behavioral and attitudinal changes.
140217. No one from the Department questioned its legal
1411authority to approve Petitioner's interactive video course until
1419Petitioner's competitors began contacting the Department. Even
1426after those contacts, the Department did not raise any concern
1436about its legal authority although it continued to correspond
1445with Petitioner regarding other aspects of Petitioner's
1452application. Only when the denial letter was issued did the
1462Department advise Petitioner that it did not have authority to
1472approve the course even though such approval was not prohibited.
148218. Petitioner provided to the Department as part of its
1492application the effectiveness study performed for the State of
1501Texas which had reviewed Petitioner's interactive video course
1509three times, approving it on each occasion. That study concludes
1519that the course is effective in changing driver behavior. The
1529Department has historically accepted effectiveness studies done
1536for other states. Further, the Department does not require the
1546submission of an effectiveness study for approval of a course to
1557be offered in a single judicial circuit.
156419. The Department determined that the course participation
1572validation process was acceptable and does not challenge that
1581process now.
158320. Jon Crumpacker, an expert in distance learning, has
1592worked on distance learning projects for the Florida Departments
1601of Corrections, Agriculture and Consumer Services, Education,
1608Transportation, Management Services, Military Affairs, Juvenile
1614Justice, and the Lottery, which have all embraced and used
1624interactive technology similar to that proposed by Petitioner.
1632He found Petitioner's technology to be effective in delivering
1641course content and to be a particularly reliable form of
1651interactive technology. He also concluded that Petitioner's
1658technology is not "radical" as previously characterized by the
1667Department.
166821. A delivery system or mechanism is how a particular
1678course content is imparted to a student. There are a variety of
1690systems used today, including traditional classroom, computer-
1697assisted instruction, and virtual classrooms on the Internet.
1705The contractual element of Petitioner's course motivates students
1713to participate in the learning process, as does the testing
1723component, particularly when compared with the traditional
1730classroom delivery system of the basic driver improvement course
1739which includes no testing component. Petitioner's delivery
1746system is a true interactive system and is an effective delivery
1757system, likely to cause changes in attitude and behavior.
1766CONCLUSIONS OF LAW
176922. The Division of Administrative Hearings has
1776jurisdiction over the subject matter hereof and the parties
1785hereto. Sections 120.569 and 120.57(1), Florida Statutes.
179223. Section 318.14(9), Florida Statutes, provides, in part,
1800that a person charged with certain traffic infractions
1808. . . may, in lieu of a court appearance,
1818elect to attend in the location of his or her
1828choice within this state a basic driver
1835improvement course approved by the Department
1841of Highway Safety and Motor Vehicles.
1847[Emphasis supplied.]
1849Although this Subsection uses the language "attend . . . a basic
1861driver improvement course," Subsection (5) uses the language
"1869attendance at a driver improvement school," and Subsection
187710(a)(1) uses the language "attend a driver improvement course."
1886Similarly, Section 318.1451, Florida Statutes, speaks in terms of
1895both courses and schools. See Subsections (1), (3), and (4).
1905Section 318.15(1), Florida Statutes, uses language concerning
1912attending schools, but Section 322.0261 regulates driver
1919improvement courses as does Section 322.095.
192524. The statutes provide no definitions for the words
"1934attend" or "school." The Department has enacted rules regarding
1943driver improvement courses. Chapter 15A-8, Florida
1949Administrative Code. Rule 15A-8.001 provides that the purpose of
1958the Chapter is to establish "the standards for approval of driver
1969improvement courses," and the remainder of the Chapter does that.
1979It does not appear to regulate schools. Rule 15A-8.002(7) does,
1989however, contain a definition of a driver improvement school, as
1999follows:
2000An authorized person, firm, partnership,
2005association, corporation, public school
2009system, public community college or public
2015university which conducts Department approved
2020Basic Driver Improvement, Advanced Driver
2025Improvement, or Traffic Law and Substance
2031Abuse Education courses in the State of
2038Florida.
2039Thus, any entity can be called a school so long as it conducts an
2053approved course. Petitioner intends to designate each
2060Blockbuster outlet it uses as a school.
206725. The Department's denial letter advised Petitioner that
2075no take-home course had ever been approved. The Department
2084conceded at final hearing that no prior application had been
2094considered. The fact that no one else has proposed offering such
2105a course is not a serious reason for denying the application but
2117merely sets forth that there is no precedent for approving or
2128denying such a course.
213226. The denial letter also advised Petitioner that
2140independent study is not the "best choice." The Department has
2150cited no statute or rule, and none has been found, which
2161establishes "best choice" as a criterion for review or approval
2171of a driver improvement course in the State of Florida. Further,
2182the Department's explanation in its letter as to why independent
2192study is not the "best choice" is not supported by the weight of
2205the evidence in this cause. Rather, the weight of the evidence
2216is that Petitioner's interactive video course is reliable and
2225effective in achieving behavioral and attitudinal changes, and
2233that a student voluntarily electing that delivery method is well
2243motivated to learn using it.
224827. The Department's primary reason for denying
2255Petitioner's application is the Department's lack of authority to
2264approve such a delivery system. The Department readily concedes
2273that the law does not prohibit such a delivery system. The
2284Department also concedes that it can pilot test innovative
2293programs for driver training. See , for example, Section 322.025,
2302Florida Statutes, and Rule 15A-8.006(3), Florida Administrative
2309Code.
231028. Petitioner bears the burden of showing that its
2319proposed interactive video course complies with all statutory and
2328rule criteria. The statutes and rules do not specify the method
2339of delivery of courses approved by the Department. Accordingly,
2348the Department can interpret the statutes and rules to restrict
2358the delivery method to only traditional classroom instruction, or
2367the Department can interpret those same statutes and rules to
2377allow for various delivery methods so long as the course content
2388meets the statutory and rule requirements, as Petitioner's
2396proposed course does.
239929. The Department has enunciated no policy reason for
2408interpreting Chapter 318 to permit only a traditional classroom
2417setting. Moreover, there is no language in the governing
2426statutes or in the Department's implementing rules requiring that
2435the traditional classroom setting be the only delivery system for
2445approved courses. The statutes and rules speak only in terms of
2456the Department regulating course content, not the delivery
2464system. It follows, then, that the Department does have the
2474authority to permit the use of different delivery systems for
2484courses where, as here, the course content complies with all
2494statutory and rule criteria. Finally, the Department has
2502articulated no reason for not permitting the use of Petitioner's
2512interactive video course on a trial basis in a single judicial
2523circuit, authority it readily admits it has.
253030. The Department's arguments that it would have to adopt
2540additional rules or amend its existing rules and that the Supreme
2551Court of Florida would have to amend its traffic school Rule
25626.330 are not persuasive and do not control the outcome of this
2574proceeding. The Department does not derive its legal authority
2583to regulate driver improvement courses from either of those
2592sources.
259331. Equally unpersuasive is the Department's argument that
2601Petitioner's delivery method precludes students from
2607participating freely in the course. An instructor is available
2616at all times to discuss course content or other driving concerns
2627with a student taking Petitioner's interactive video course, and
2636the selection of Petitioner's course is only by the student's own
2647choice. No competent or credible evidence was offered that
2656students learn more or better only if other students are present.
2667Further, the "participate freely" requirement is only found in
2676the Department's rules and is a subjective term.
268432. Lastly, the Department argues that the course should
2693not be approved because it includes a test and a test is not
2706required under Florida law. No one is required to take
2716Petitioner's course. If people choose to take it, and it is
2727harder than the other courses approved by the Department, so be
2738it. It is strange for the Department to argue for denial of the
2751application because it exceeds minimum requirements or because
2759the delivery system assures that students have learned something
2768from the course, assumedly one of the Department's goals.
277733. Petitioner correctly argues that the Legislature h as
2786embraced the concept of distance learning, as evidenced by
2795Section 364.507, Florida Statutes. Indeed, the Legislature has
2803established the Florida Distance Learning Network. Although
2810there is no evidence that Petitioner's proposed course is part of
2821that system, Petitioner's argument is more persuasive as to
2830legislative intent than the Department's. In other words, where
2839the Legislature has considered different methods of delivery of
2848curriculum, it has approved distance learning.
2854RECOMMENDATION
2855Based upon the foregoing Findings of Fact and Conclusions
2864of Law, it is
2868RECOMMENDED that a final order be entered granting
2876Petitioner's application for approval of its interactive video
2884course.
2885DONE AND ENTERED this 28th day of October, 1999, in
2895Tallahassee, Leon County, Florida.
2899___________________________________
2900LINDA M. RIGOT
2903Administrative Law Judge
2906Division of Administrative Hearings
2910The DeSoto Building
29131230 Apalachee Parkway
2916Tallahassee, Florida 32399-3060
2919(850) 488-9675 SUNCOM 278-9675
2923Fax Filing (850) 921-6847
2927www.doah.state.fl.us
2928Filed with the Clerk of the
2934Division of Administrative Hearings
2938this 28th day of October, 1999.
2944COPIES FURNISHED:
2946Charles J. Brantley, Director
2950Department of Highway Safety
2954and Motor Vehicles
2957Neil Kirkman Building, Room B439
2962Tallahassee, Florida 32399-5000
2965Enoch Jon Whitney, General Counsel
2970Department of Highway Safety
2974and Motor Vehicles
2977Neil Kirkman Building, Room B439
2982Tallahassee, Florida 32399-5000
2985Michael J. Alderman, Esquire
2989Department of Highway Safety
2993And Motor Vehicles
2996Neil Kirkman Building, Room B439
3001Tallahassee, Florida 32399-5000
3004Mark K. Logan, Esquire
3008Smith, Ballard & Logan, P.A.
3013403 East Park Avenue
3017Tallahassee, Florida 32301
3020NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3026All parties have the right to submit written exceptions within 15
3037days from the date of this Recommended Order. Any exceptions to
3048this Recommended Order should be filed with the agency that will
3059issue the Final Order in this case.
- Date
- Proceedings
- Date: 11/22/1999
- Proceedings: Final Order filed.
- PDF:
- Date: 10/28/1999
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held August 3 and 4, 1999.
- Date: 10/01/1999
- Proceedings: Opinion and Mandate Petition for Review filed.
- Date: 09/10/1999
- Proceedings: (E. Whitney, M. Alderman) Proposed Recommended Order (for Judge Signature); Disk filed.
- Date: 09/10/1999
- Proceedings: USA Training Company, Inc.`s Proposed Recommended Order filed.
- Date: 08/23/1999
- Proceedings: Order sent out. (parties shall have up to 9/10/99 to file proposed recommended orders)
- Date: 08/20/1999
- Proceedings: Joint Motion for Extension of Time filed.
- Date: 08/19/1999
- Proceedings: Notice of Filing; (Volumes 1-3 of 3) DOAH Court Reporter Final Hearing Transcript filed.
- Date: 08/18/1999
- Proceedings: (M. Logan) Amended Motion to Strike filed.
- Date: 08/16/1999
- Proceedings: (M. Logan) Motion to Strike filed.
- Date: 08/06/1999
- Proceedings: (FACTS) Petition for Review of Non-Final Administrative Action filed.
- Date: 08/03/1999
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/28/1999
- Proceedings: Joint Prehearing Stipulation (filed via facsimile).
- Date: 07/14/1999
- Proceedings: (Petitioner) Notice of Taking Telephonic Deposition Duces Tecum filed.
- Date: 07/09/1999
- Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for August 3 and 4, 1999; 9:30am; Tallahassee)
- Date: 07/07/1999
- Proceedings: Order sent out. (Petition to Intervene is denied)
- Date: 07/07/1999
- Proceedings: (M. Alderman) Motion for Continuance (filed via facsimile).
- Date: 06/29/1999
- Proceedings: (R. Rigsby) Notice of Telephonic Hearing (7/6/99; 2:00 p.m.) filed.
- Date: 06/24/1999
- Proceedings: (Petitioner) Response to Petition to Intervene; Notice of Taking Depositions filed.
- Date: 06/23/1999
- Proceedings: Notice of Service of Respondent`s Responses to Petitioner`s Second Set of Interrogatories; Notice of Service of Respondent`s Response to Petitioner`s Request for Production (filed via facsimile).
- Date: 06/17/1999
- Proceedings: (Florida Association of Concerned Traffic Schools, Inc.) Petition to Intervene filed.
- Date: 06/03/1999
- Proceedings: (M. Logan) Notice of Taking Depositions filed.
- Date: 05/24/1999
- Proceedings: (M. Logan) Request for Production; Notice of Service of Second Set of Interrogatories by Petitioner, USA Training Company, Inc. to Respondent, Department of Highway Safety and Motor Vehicles filed.
- Date: 05/05/1999
- Proceedings: Order of Pre-Hearing Instructions sent out.
- Date: 05/05/1999
- Proceedings: Notice of Hearing sent out. (hearing set for July 13 and 14, 1999; 9:30 a.m.; Tallahassee, FL)
- Date: 05/05/1999
- Proceedings: (M. Logan) Notice of Taking Depositions filed.
- Date: 04/29/1999
- Proceedings: Joint Response to Initial Order filed.
- Date: 04/23/1999
- Proceedings: Notice of Service of First Set of Interrogatories by Petitioner, USA Training Company, Inc. to Respondent, Department of Highway Safety and Motor Vehicles filed.
- Date: 04/23/1999
- Proceedings: Notice of Service of First Set of Request for Admissions by Petitioner, USA Training Company, Inc. to Respondent, Department of Highway Safety and Motor Vehicles filed.
- Date: 04/19/1999
- Proceedings: Initial Order issued.
- Date: 04/13/1999
- Proceedings: Agency Referral Letter; Petition for Formal Administrative Hearing; Agency Action Letter filed.
Case Information
- Judge:
- LINDA M. RIGOT
- Date Filed:
- 04/13/1999
- Date Assignment:
- 04/19/1999
- Last Docket Entry:
- 11/22/1999
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO