99-001707 Usa Training Company, Inc. vs. Department Of Highway Safety And Motor Vehicles
 Status: Closed
Recommended Order on Thursday, October 28, 1999.


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Summary: Petitioner`s driver improvement course entitled to approval even though innovative delivery system utilized.

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.

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Date
Proceedings
Date: 11/22/1999
Proceedings: Final Order filed.
PDF:
Date: 11/19/1999
Proceedings: Agency Final Order
PDF:
Date: 11/19/1999
Proceedings: Recommended Order
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
 

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Related Florida Statute(s) (8):

Related Florida Rule(s) (3):