STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK D. PATZ, )

)

Petitioner, )

)

vs. ) Case No. 98-2770RP

)

ORANGE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Daniel M. Kilbride, Administrative Law Judge, took under advisement the Prehearing Stipulation and Stipulated Facts of the parties. The parties waived a formal hearing.

APPEARANCES

For Petitioner: Mark D. Patz, pro se

3843 Gatlin Woods Drive Orlando, Florida 32812-7673

For Respondent: Andrew B. Thomas, Esquire

Broad and Cassel

390 North Orange Avenue, Suite 1100 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the School Board's decision of March 26, 1998, to designate attendance zone for a new elementary school in Orange County was a "Rule," as defined in Section 120.52(15), Florida Statutes.

Whether Petitioner has standing to bring a rule challenge in

this tribunal.

Whether the School Board's adoption of a new attendance zone is invalid because:

It only received an affirmative vote of four of the Board's seven members on March 26, 1998; changes to Shenandoah's attendance zones were not considered in any planning or workshop prior to the March 26 meeting; and/or the failure of the School Board to publish notice of adoption of a rule 28 days in advance of its March 26 meeting makes the decision invalid.

Whether the School Board was required to provide notice of development of a rule prior to its decision to include the area in question (the two neighborhoods which had been in the Shenandoah attendance zone) in the Lake George attendance zone and, if so, whether that renders the School Board's March 26 action invalid, pursuant to Sections 120.54(2)(a) and (c), Florida Statutes.

Whether DOAH has the authority to grant freedom of choice for the residents of the two neighborhoods to pick which of the two schools (Shenandoah or Lake George) to attend.

Whether the School Board's unanimous approval of the minutes of its March 26 meeting cures any defects in the process.

PRELIMINARY STATEMENT

At the conclusion of its second public hearing on changes to the attendance zone rule for elementary schools on March 26, 1998, Respondent voted in favor of the advertised proposal. On

May 12, 1998, Petitioner addressed the Respondent in regard to its alleged deficiencies in rulemaking in regard to attendance zones. Petitioner filed his Petition for Formal Administrative Hearing with the Respondent on May 29, 1998. At Petitioner's request, the Respondent forwarded the Petition to the Division of Administrative Hearings on June 18, 1998.

Upon assignment of this case to the undersigned Administrative Law Judge, it was determined that the Petition was in the nature of a challenge to a proposed rule of the Respondent and would proceed pursuant to the provisions of Section 120.56(2), Florida Statutes. Following a prehearing conference, the parties submitted a statement of Stipulated Facts with exhibits on July 8, 1998, and a Prehearing Stipulation on

July 10, 1998, in lieu of live testimony at a formal hearing. Petitioner submitted his Proposed Conclusions of Law and Arguments on July 14, 1998. Respondent submitted its Proposed Final Order on July 15, 1998. No testimony was taken, therefore, no transcript has been prepared. Both parties' proposals have been given careful consideration in the preparation of this final order.

FINDINGS OF FACT

1. This dispute involves the establishment of an attendance zone for a new elementary school in Orange County: Lake George Elementary School.

2. Lake George Elementary School is a new elementary school

   established and to be operated by the School Board of Orange County, Florida. Construction of the school began in the fall of 1997 and the school is scheduled to open shortly, at the beginning of the 1998-99 school year. The site for the school was selected in 1995. It was originally intended to relieve two overcrowded elementary schools: Conway and Dover Shores.

3. Staff will report to Lake George for pre-planning on August 4, 1998, and the first day of classes for students will be August 10, 1998. Orange County's other elementary schools follow the same schedule.

4. The Orange County School District covers the entire county, approximately 1,003 square miles. The population of Orange County, according to The Florida County Atlas, was 727,760 in 1993. During the 1997-98 school year, the District enrollment was 134,292, an increase of nearly 6,000 students over the previous year. Sixty-four thousand two hundred and eight students were enrolled in the District's elementary schools for the 1997-98 school year. As of January 1, 1998, the District operated 91 elementary schools.

5. In March 1997, Orange County School Board staff met with parents of students attending Ventura, McCoy, Conway and Dover Shores Elementary Schools in a public planning session for the development of the new elementary school's attendance zone. (This is the school that would become Lake George Elementary School.) Parents of students attending Shenandoah Elementary

   School were not invited to attend because Shenandoah students were not involved in staff's plans for the new elementary school zone at that time.

6. On January 18, 1998, the School Board published in The Orlando Sentinel (a newspaper of general circulation throughout all of Orange County) a notice of a public workshop to discuss the establishment of the Lake George Elementary School attendance zone. The workshop was scheduled for January 27, 1998. The notice was published on page K-13 of the "Orange Extra," a Sunday supplement in The Orlando Sentinel and was also posted in appropriate locations.

7. On January 27, 1998, the School Board convened in open, public session to hear staff and public input regarding an attendance zone for Lake George Elementary School and discuss options. Three different options for a Lake George Elementary School attendance zone were explained by staff to the School Board. None of those options involved transferring students from the Shenandoah Elementary School attendance zone.

8. On February 4, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed attendance zone for Lake George Elementary School described in this notice did not involve transferring any part of the Shenandoah Elementary School attendance zone to the Lake George Elementary School attendance zone. The notice called

   for a public hearing to be held on February 24, 1998.

   
   

9. On February 24, 1998, the School Board held a public hearing regarding the proposed attendance zone for Lake George Elementary School. Staff explained its recommended proposal to the School Board and additional input was given by members of the public.

10. At the conclusion of the February 24 public hearing, the School Board discussed the staff proposal and, based on input from the public hearing, voted 6-1 to establish the following attendance zone for Lake George Elementary School:

    1. Area transferred from Ventura Elementary School to Lake George Elementary School:

       
       

       The area west of Semoran Boulevard, north of Lake Margaret Drive, east of Dixie Belle Drive, and south of the Orange Orlando Apartments.

       
       

    2. Area transferred from McCoy Elementary School to Lake George Elementary School:

       
       

       The area west of Semoran Boulevard, north of Abercom Road, and east of Kennedy Road.

       
       

    3. Area transferred from Conway Elementary School to Lake George Elementary School:

       
       

       The area south of Michigan Avenue and east of Conway Road, including the east side of Conway Road.

       
       

    4. Area transferred from Dover Shores Elementary School to Lake George Elementary School:

       
       

       The area west of Dixie Belle Drive containing the seven most southern buildings of the Belle Crest Apartment complex.

       
       

11. The zone described in Paragraphs A-D, above, was

    consistent with what had been advertised. However, staff had also recommended that the School Board transfer the seven most northern buildings of the Belle Crest Apartment complex, containing a projected 114 students, from Dover Shores Elementary School to Lake George. After hearing public comment, the School Board decided not to transfer that area.

12. At the conclusion of the February 24 public hearing, based on input from the hearing, the School Board also arrived at a consensus that the following portion of the Shenandoah Elementary School attendance zone be added to the Lake George Elementary School attendance zone:

    
    

    The area north of Gatlin Avenue and east of Conway Road.

    
    

    That area includes the subdivisions cited in the Petition (Gatlin Place and Windward Place.)

13. At the conclusion of the February 24 public hearing, the School Board directed staff to advertise another public hearing so the School Board could hear community input regarding inclusion of the area described in paragraph 12 in the Lake George attendance zone involving Shenandoah Elementary School which includes 104 students.

14. On March 2, the School Board's staff invited the parents of students living in the affected area (i.e., the area described in paragraph 12) to discuss the proposed zone change at a public meeting to be held at Shenandoah Elementary School on

    March 9. The School Board's Office of Pupil Assignment mailed letters to the homes of each elementary school student who had been enrolled at Shenandoah and would be assigned to Lake George if the proposal (described in paragraph 12) were approved.

15. On March 4, 1998, the School Board published in The Orlando Sentinel a second Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed action specified in this published notice called for an attendance zone for Lake George Elementary School that was identical to the one formally adopted (by a 6-1 vote) at the School Board's February 24 meeting, but added to the Lake George Elementary Zone that portion of the Shenandoah Elementary School attendance zone described in paragraph 12, above. This notice was also posted in appropriate locations.

16. The grade structure, program offerings, and educational opportunities to be offered at Lake George Elementary School are comparable to those offered at Shenandoah Elementary School.

17. On March 9, a representative of the School Board's Office of Pupil Assignment who had assisted in preparing the proposal for the Lake George attendance zone met at Shenandoah Elementary School to explain the proposal, solicit public input, and respond to questions and comments about the proposal.

18. At its March 10, 1998, meeting, the School Board unanimously approved its minutes for the February 24 meeting.

19. On March 26, 1998, the School Board held its second

    public hearing on the Lake George Elementary School attendance zone. Twenty-two individuals addressed the School Board, many of whom resided in the portion of the Shenandoah attendance zone that was to be transferred to the Lake George attendance zone.

    Other options suggested by members of the public and discussed by members of the School Board included leaving the Gatlin Place and Windward Place subdivisions at Shenandoah and/or transferring a portion of the Dover Shores zone into Lake George.

20. At the conclusion of the second public hearing on March 26, 1998, after public discussion by members of the School

    Board, a roll-call vote was conducted and the members voted, 4-3, in favor of the advertised proposal. The chairman declared that the motion was approved. Subsequently, the meting adjourned.

21. At its April 14, 1998, meeting the School Board unanimously approved its meetings for the March 26 meeting. In relevant part, the minutes state:

    The motion passed with a majority vote of 4-3.

    
    

22. Prior to October 25, 1993, the School Board had adopted Policy BG stating:

    The School Board shall determine and adopt such rules as are deemed necessary for efficient operation and general improvement of the school system. These rules may be amended, repealed or a new rule adopted as hereinafter prescribed. The term "rule" is defined in Section 120.52(16), Florida Statutes.

    
    

    * * *

    1. Unless an emergency exists any proposal relating to a rule amendment, the repeal of any rule or the adoption of a new rule shall be presented in writing to the School Board including a written explanation of the proposal.

       
       

       * * *

       
       

       1. Any person who is substantially affected by a proposed rule, rule amendment or the repeal of a rule may within 21 days following notice of intent to adopt, amend or repeal such rule, file a written request with the School Board seeking an administrative determination as to the validity of the proposed rule action.

          
          

       2. A vote for adoption shall require a two- thirds affirmative vote (five of the total membership of the School Board.)

          
          

       3. The formal adoption of policies shall be recorded in the minutes of the School Board. Only those written statements so adopted and recorded shall be regarded as official School Board policy.

       
       

       This School Board rule was in effect at all times material to this proceeding, as were the following policies: BBA, BEDH, BGC and CB.

       
       

23. Each member of the School Board took an oath of office to "Perform the duties of Member, School Board of Orange County."

24. On May 12, 1998, Petitioner addressed the School Board, He said that the Board had failed to follow Policy BG (requiring a two-thirds affirmative vote to adopt the modifications to the Lake George Elementary School attendance zone made at the Board's March 26 meeting) and had failed to give proper notice of its

    adoption of that proposal in that Shenandoah's attendance zone was never considered in the planning/workshop meetings and the advertisement was published only 22 days before the vote. He requested that the Board take action to correct those deficiencies.

25. Petitioner filed his Petition for Formal Administrative Hearing with the School Board on May 29, 1998. At Petitioner's request, the School Board forwarded the Petition to the Division of Administrative Hearings on June 18, 1998.

26. On July 1, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George attendance zone which would affect Lake George, Dover Shores, Senandoah, Ventura, McCoy and Conway Elementary Schools. This proposal is the same as was approved by a 4-3 vote on March 26, 1998.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, pursuant to Sections 120.56, Florida Statutes.

    
    

28. Petitioner is the custodial parent of a child who is a student in the Orange County School District, and presently attends Shenandoah Elementary School. Petitioner is a resident of Gatlin Place Subdivision, at 3843 Gatlin Woods Drive, Orlando, Florida 32812-7673, and is affected by the modifications to the

    Lake George Elementary School attendance zone.

    
    

29. The Respondent is the governing body of the school District of Orange County, Florida, pursuant to Chapter 230, Florida Statutes. Respondent is an "agency," as defined in Section 120.52(1)(b), Florida Statutes, and is an "education unit," as defined in Section 120.52(6), Florida Statutes.

30. Under Florida's Administrative Procedure Act, a "Rule" is defined as:

    . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule.

    Section 120.52(15), Florida Statutes (1997).

    
    

31. Florida courts have treated major school rezoning actions as a Rule. See Polk v. School Board of Polk County, 373 So. 2d 960, 961 (Fla. 2d DCA 1979); School Board of Orange County v. Blackford, 369 So. 2d 689, 690 (Fla. 1st DCA 1979). Although the proposed zoning changes involved a small number of elementary school students out of the large number of elementary school students enrolled in the District and the decision involves small portions of the attendance zones of just two of the District's 91 elementary schools, nevertheless, the March 26, 1998, decision meets the statutory definition of a Rule because the definition also includes the amendment of a rule, Section 120.52(16), Florida Statutes. Clearly, changing the attendance area for

students from one zone to another is an amendment to an existing rule and the rulemaking provisions of the Florida Administrative Procedures Act (APA) must be followed. Polk v. School Board of Polk County, supra; School Board of Orange County v. Blackford, supra.

1. In his petition, Petitioner states he is the parent of a child who would be affected by the change from Shenandoah Elementary School to Lake George Elementary School. Petitioner resides in one of two subdivisions whose elementary-age students would be rezone. Petitioner states he is the parent of a child who would be transferred from one school to another. There is no evidence of any material difference in the two schools. Indeed, the Stipulated Facts establish that the two schools are comparable.

2. A stringent standard applies to rule challenge proceedings against an agency brought under Section 120.56, Florida Statutes. To qualify for making an administrative challenge under that provision, Petitioner must establish that he is "substantially affected" by the rule he challenges.

3. The First District Court of Appeal, faced with a similar challenge, noted:

   Every concerned parent has an interest in their children and in the educational program in which their children are enrolled. They also have a natural interest that the educational progress of the child not be unnecessarily disrupted. However, a change from one school to the other which would, of course, bring about an exposure of the child

   to the opportunity of making new friends may not on its face, starting above, be considered a hindrance. Such concern on the part of parents is not sufficient to satisfy the threshold requirement of a standing to bring about a rule challenge of the school board procedure under the provisions of Section 120.56, Florida Statutes (1977). We hold that these children (who were not made parties to this cause) represented by their parents have not been "substantially affected" so as to give these parents or children standing to challenge the procedure of the School Board. . . . While it may be that these parents might be considered an "affected party" entitled to present evidence and to present argument before an agency in a rule adoption procedure under Section 120.54(3), this record falls far short of establishing that such parents or children were "substantially affected" so as to clothe them with standing to bring about a rule challenge under the provisions of Section 120.56, Florida Statutes. School Board

   of Orange County v. Blackford, 369 So. 2d

   689, 91 (Fla. 1st DCA 1979).

   
   

4. In this case, Petitioner had ample opportunity to present his position in opposition to the rezoning to the School Board. After the School Board decided on February 24 to include the Shenandoah students in the Lake George zone, Petitioner had a chance to meet with staff to discuss the proposal and, of course, could have presented evidence and argument at or before the March

   26 public hearing as an "affected party."

   
   

5. Although the Fourth District Court of Appeals reached a contrary opinion in Cortese v. School Board of Palm Beach County,

   425 So. 2d 554, 555 (Fla. 4th DCA 1983), the Blackford case is the controlling law in this matter. Petitioner, therefore, has not established that he is a "substantially affected" person and

   this action must be dismissed.

   
   

6. In addition, Petitioner has failed to timely file his petition seeking an administrative determination of the invalidity of the proposed rule.

7. Section 120.56(2), Florida Statutes, provides in pertinent part:

   1. Challenging Proposed Rules; Special Provisions.

      
      

      1. Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by filing a petition seeking such a determination with the division . . . within 10 days after the final public hearing is held on the proposed rule. . .

   
   

8. School Board of Orange County, Rule BG, adopted December 12, 1993, provides in pertinent part:

   (1)(b) Any person who is substantially affected by a proposed rule, rule amendment or the repeal of a rule may within 21 days following notice of intent to adopt, amend or repeal such rule, file a written request with the school board seeking an administrative determination as to the validity of the proposed rule action.

   
   

   (d) The formal adoption of policies shall be recorded in the minutes of the school board. Only those written statements so adopted and recorded shall be regarded as official school board policy.

   
   

9. In this case, the School Board published its Notice of Proposed Action in a newspaper of general circulation on March 4, 1998. The notice included the proposed change in the attendance zone which would affect the Petitioner. The final public hearing

on the proposed changes occurred on March 26, 1998, and the School Board adopted the changes at that meeting. The rule change was recorded in the minutes of the School Board and approved by the Board on April 14, 1998. Petitioner filed his petition challenging the School Board action on May 29, 1998. Petitioner did not file a petition directly with the Division of Administrative Hearings. His petition was forwarded to the Clerk of the DOAH on June 18, 1998. Petitioner's action was filed 64 days after the final public hearing and 45 days after the last School Board action of this matter (approval of the minutes).

Therefore, under the provisions of either Section 120.56(2)(a), Florida Statutes, or School Board Rule BG(1)(b) and (d), the petition filed in this case is untimely and must be dismissed.

45. In view of the above rulings, determination of the other issues raised by Petitioner are unnecessary.

FINAL ORDER

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the Petition for Formal Administrative Hearing is DISMISSED.

DONE AND ORDERED this 24th day of July, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1998.

COPIES FURNISHED:

Mark D. Patz, pro se 3843 Gatlin Woods Drive

Orlando, Florida 32812-7673

Andrew B. Thomas, Esquire Broad and Cassell

Suite 1100

390 North Orange Avenue Orlando, Florida 32801

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliot Building

Tallahassee, Florida 32399-0250

Dr. Donald Shaw

Orange County School Board Post Office Box 271

Orlando, Florida 33802-0271

NOTICE OF RIGHT TO APPEAL

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 the 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.

Docket for Case No: 98-002770RP

Orders for Case No: 98-002770RP