Filed: Aug. 06, 2014
Latest Update: Mar. 02, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SCHOOL BOARD OF POLK COUNTY ) FLORIDA, ) ) Appellant/Cross-Appellee, ) ) v. ) Case No. 2D12-3139 ) RENAISSANCE CHARTER SCHOOL, ) INC., and RENAISSANCE CHARTER ) SCHOOL AT POLK, ) ) Appellees/Cross-Appellants. ) _ ) Opinion filed August 6, 2014. Appeal from the Board of Education. Frederick J. Murphy, Jr., of Boswell & Dunlap LLP, Bartow, for Appellant/Cross-
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SCHOOL BOARD OF POLK COUNTY ) FLORIDA, ) ) Appellant/Cross-Appellee, ) ) v. ) Case No. 2D12-3139 ) RENAISSANCE CHARTER SCHOOL, ) INC., and RENAISSANCE CHARTER ) SCHOOL AT POLK, ) ) Appellees/Cross-Appellants. ) _ ) Opinion filed August 6, 2014. Appeal from the Board of Education. Frederick J. Murphy, Jr., of Boswell & Dunlap LLP, Bartow, for Appellant/Cross- A..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SCHOOL BOARD OF POLK COUNTY )
FLORIDA, )
)
Appellant/Cross-Appellee, )
)
v. ) Case No. 2D12-3139
)
RENAISSANCE CHARTER SCHOOL, )
INC., and RENAISSANCE CHARTER )
SCHOOL AT POLK, )
)
Appellees/Cross-Appellants. )
___________________________________ )
Opinion filed August 6, 2014.
Appeal from the Board of Education.
Frederick J. Murphy, Jr., of Boswell &
Dunlap LLP, Bartow, for Appellant/Cross-
Appellee.
Edward J. Pozzuoli and Stephanie Alexander
of Tripp Scott, P.A., Fort Lauderdale, for
Appellees/Cross-Appellants.
SLEET, Judge.
The School Board of Polk County, Florida (the School Board) timely
appeals an order of the Board of Education (the State Board) which allows Renaissance
Charter School, Inc. (Renaissance) to operate a charter school in Polk County over the
objections of the School Board. The School Board argues that the proposed charter
school's educational program did not "substantially replicate" that of the high-performing
charter school being replicated. See § 1002.331(3)(a), Fla. Stat. (2011). We agree and
reverse.
The facts of this case are substantially similar to those articulated in
School Board of Seminole County v. Renaissance Charter School, Inc.,
113 So. 3d 72
(Fla. 5th DCA 2013). Here, Renaissance filed a high-performing charter school
application pursuant to section 1002.331, for Renaissance Charter School at Polk, a K
through 8 charter school. It submitted a high-performing charter middle school,
Renaissance Charter Middle School (RCMS), which serves grades 6 through 8, as its
replica school. Renaissance's planned charter school would serve grades K through 6
in its first year, grades K through 7 in its second year, and grades K through 8 in its third
year. At the time of the application, RCMS in Dade County had a little over 200
students. Renaissance proposed that Renaissance Charter School at Polk would open
with 862 students and would grow to 1,415 students by its fifth year.
After reviewing the application, the School Board concluded that the
educational program set forth in the application did not substantially replicate that of
RCMS. Additionally, the ten-page letter from the School Board's attorney listed ninety-
one reasons why the application did not meet statutory requirements for student
performance, assessment and evaluation, education service providers, employment,
transportation services, budget, action plan, mission and guiding principles, exceptional
students, school discipline, student recruitment, and financial management and
oversight.
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In Seminole, Renaissance submitted a high-performing charter school
application for a similar K through 8 grade charter school in Seminole County. The
replica school submitted by Renaissance was a 6 through 8 grade charter middle school
in Broward County.
Id. at 73. After review, the School Board of Seminole County
denied the application based upon several of the same objections lodged by the School
Board in this case.
Id. The Seminole County School Board concluded there was no
way the proposed K through 8 grade charter school could substantially replicate the
Broward County charter middle school.
Id. The Fifth District cogently analyzed the
statute and agreed with the Seminole County School Board. It held that: "[T]o be
'substantially similar' within the meaning of the Florida Statutes, a charter school must
have the same characteristics and be alike in substance or essentials to the school it is
replicating. Common sense dictates that a middle school, which covers only grades 6
through 8, is materially different from a K through 8 school."
Id. at 75.
Here, the School Board articulated specific objections to the application in
a forty-seven-page Charter Review Committee report. Renaissance was given several
opportunities during a work session, interview session, and a public hearing to respond
to the School Board's objections. When asked by the School Board how the proposed
K through 8 school could replicate an existing middle school, Renaissance's attorney
stated: "It is not the same school because the K -- the grade levels are different. We
were replicating our method and model, pursuant to the statute."
During the appeal hearing before the State Board, Renaissance argued
that the material issue was not substantial replication, but instead whether the proposed
charter school would be a high-performing school. The School Board countered that
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section 1002.331 required substantial replication. The State Board's half-page order
stated that "the School Board failed to show by clear and convincing evidence that the
Charter Applicant's application did not materially comply with the requirements of
section 1002.33(6)(c)3.b., Florida Statutes." The order did not include any findings of
fact.
It is the School Board's burden to prove by clear and convincing evidence
that the high-performing charter school application does not comply with the statutory
requirements, including substantial replication. Section 1002.33(6)(b)(3)(b)(III) provides
that the School Board may deny the charter application if "[t]he proposed charter
school's educational program does not substantially replicate that of the applicant or
one of the applicant's high-performing charter schools."
We agree with the School Board that Renaissance's proposed charter
school's educational program did not substantially replicate that of RCMS. The
proposed school, composed mostly of kindergarten and elementary grade students, and
the middle school on which the application was based neither share the same
characteristics, nor are they alike in substance or essentials. Furthermore, nowhere in
the record did any representative of Renaissance articulate how the educational
program of the high-performing middle school would be replicated so as to serve the
students of different age and grade levels.
As in Seminole, Renaissance argues that this court should consider
RCMS and Renaissance Charter Elementary School as one school for purposes of their
application because they share a campus and a website. See
Seminole, 113 So. 3d at
76. We decline. Renaissance did not include any information regarding this elementary
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school in its written application, work session presentation, interview responses, and
written responses to the Charter Review Committee. See Thornber v. City of Fort
Walton Beach,
534 So. 2d 754, 755 (Fla. 1st DCA 1988) ("That an appellate court may
not consider matters outside the record is so elemental there is no excuse for an
attorney to attempt to bring such matters before the court."). Moreover, section
1002.331(3)(b) limits a high-performing charter school to one application for a charter
school per year. Renaissance Charter Elementary School was used as a replica to
support an application seeking a high-performing charter school in Leon County at the
same time that Renaissance filed the instant application. If the legislature intended to
allow Renaissance to replicate any of its high-performing charter schools more than
once per year, it would not have expressly limited the number of charter school
applications.
Renaissance filed a cross appeal and contends that it was denied
procedural due process because the School Board did not conduct a "substantive
hearing and take evidence" before denying the high-performing charter application.
Because the Administrative Procedure Act does not apply to proceedings before the
State Board and Renaissance did not request a formal hearing, there was no due
process violation. See
Seminole, 113 So. 3d at 77. The record demonstrates that
Renaissance was afforded due process within the parameters of the charter school
statute.
We agree with the Fifth District's determination that there are certain
deficiencies in the charter school statute.
Id. at 76. First, the statute does not expressly
provide in what type of forum the sponsor or school board is to present "clear and
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convincing evidence" sufficient to deny the application. Nor does the statute provide for
any form of evidentiary hearing or review. The brevity of the State Board's final order
frustrates appellate review; however, the statute does not expressly require the State
Board to provide findings of fact and conclusions of law.
Despite the statutory deficiencies, the record is sufficient to demonstrate
that the School Board's decision to deny Renaissance's charter application is supported
by clear and convincing evidence. See § 1002.33(6)(b)(3)(b); see also Seminole,
113
So. 3d 76. Accordingly, we reverse the order of the State Board approving
Renaissance's application.
Reversed.
NORTHCUTT, and KELLY, JJ., Concur.
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