Findings Of Fact Respondent was reassigned to the alternative school program on January 4, 1983, following numerous incidents which required discipline during the preceding 12 months. There were repeated incidents of unexcused absences and tardiness, and on December 13, 1983, Respondent was found to be in possession of a quaalude tablet without authorization. Since being reassigned to the alternative program, Respondent's performance and conduct have improved. Her parents accept responsibility for the earlier problems and have curtailed their business travel in order to spend more time with her. They have secured counseling for Respondent and seek to have her returned to the regular program as soon as possible.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order affirming the assignment of Respondent to its alternative education program. DONE and ORDERED this 6th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Dr. Leonard Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Mike Eldridge 14800 Northeast 16th Avenue North Miami, Florida 33161
The Issue Whether the respondent should be reassigned to the Opportunity School.
Findings Of Fact Mr. Aron Brumm, Assistant Principal at Cutler Ridge, handles about 95% of the disciplinary cases at Cutler Ridge. He was personally involved in investigating the incidents involving Charlotte and in the efforts to correct Charlotte's behavior. The following is an outline of Charlotte's disciplinary record at Cutler Ridge: DATE REASON FOR REFERRAL 9/17/84 Charlotte was disruptive in class, rude, and constantly tardy. 9/25/84 Charlotte was found in possession of pens stolen from the school store. She admitted that she had taken them. 10/4/84 Charlotte was rude, insulting, and disrespectful in class. Class disrupted. 10/31/84 Charlotte threatened another student. 11/1/84 Charlotte talked back to her teacher in class and was rude. She was putting on make-up during the class. 12/6/84 Charlotte constantly tardy to class and disruptive when she gets to class. 12/6/84 Charlotte was disruptive on the school bus. 12/19/84 Charlotte was disruptive in reading class. 1/18/85 Charlotte was found in possession of "Request for Student" blank forms that are used by school to get a student out of class. Charlotte forged the later signature of Mrs. King to get out of class and was found out near the band room; the forms were found in her purse. 1/22/85 Charlotte completely disrupted indoor suspension, which she was attending due to the prior incident. She was defiant and disrespectful. 1/23/85 Charlotte disrupted indoor suspension once again, despite warning given to her the day before. 1/25/85 A pre-opportunity school conference was held, at which time it is discovered that Charlotte had forged Mrs. Steele's name on Charlotte's progress reports. Every effort was made by school personnel to help Charlotte correct her disruptive behavior. From the time of the first incident, contact was made with Charlotte's guardian. By October 4, 1984, Charlotte had been referred to the school counselor. She was placed in an academic study group which met once a week for four weeks. She had special counseling sessions with some of her teachers. She received reprimands, indoor suspensions, and outdoor suspensions. All efforts were ineffective. Although Charlotte had some good days and would show improvement for a short period of time after certain counseling sessions, she ultimately would revert to her former behavior. Charlotte was not removed from the classes where she was having the most difficulty. However, none of the evidence indicates that a change in teachers would have brought about a change in Charlotte's behavior. Charlotte's disruptive behavior was not confined to one class or one teacher. Three different teachers had to refer Charlotte to the assistant principal for disciplinary action because of her intolerable behavior in the classroom. Further, Charlotte's disruptive behavior was not limited to the classroom. She was disruptive on the school bus, she threatened a fellow student, she stole pens from the school store, she forged her guardian's name on her progress reports, and she used a forged pass to get out of class. She was disruptive in indoor suspension. This is clearly not a case of a personality conflict between a student and teacher which can be resolved by transferring the student out of the teacher's class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of respondent to the opportunity school program at Youth Opportunity School South. DONE and ENTERED this 21th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985. COPIES FURNISHED: Dr. Leonard Britton Superintendent of Schools Board Administrative Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida Mitchell A. Horwich, Esq. Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796 Phyllis O. Douglas, Esq. Assistant Board Attorney Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact The parties stipulated that in February, 1984, while respondent was a student in the ninth grade at Westview Junior High School he punched another student in the face. As a result, respondent was required to serve a five day suspension. As a result of respondent's discussions with his mother concerning the incident, respondent wrote a letter of apology to the other student. The parties further stipulated that in March, 1984, while respondent was a student in the same school, he was involved in a fight. As a result, he was required to serve a ten day suspension. Although petitioner's attorney argued at the formal hearing that the March incident involved some type of "aggravated assault" and/or inciting to riot," petitioner failed to introduce any evidence in support of that argument or even regarding the incident itself. On the other hand, the evidence is uncontroverted that no charges were filed against respondent and no involvement with the juvenile justice system followed the March, 1984. On April 13, 1984, petitioner administratively reassigned respondent to Miami Douglas MacArthur Senior High School - North. The parties stipulated at the time of the Final Hearing in this cause that respondent's overall grades and conduct have been satisfactory throughout respondent's attendance at Miami Douglas MacArthur Senior High School - North. For the last one and a half years respondent has been voluntarily participating in a private community youth guidance program. Although that program accepts some court referrals, respondent was not referred by the courts, is a continuous participant in the program, and can remain in the program for two more years until he reaches the age of 18. Respondent attends activities conducted by that program once a week after school. His counselor, Greg Rounds, believes respondent to be a quiet person who does not belong in an alternative program school and who is more likely to become and remain rehabilitated if returned to the regular school program.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, therefore, RECOMMENDED THAT a Final Order be entered returning respondent to the regular school program and reversing the determination that respondent be placed or retained in an educational alternative program. DONE and RECOMMENDED this 23rd day of August, 1984, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mr. James Nealy 12315 North West 18th Place, Apt. #B Miami, Florida 33167
Findings Of Fact Julie Annette Smith was a student at Centennial Junior High School during the 1984-1985 school year. She was administratively reassigned to the Douglas MacArthur Senior High School-South, an alternative placement in the school system's opportunity school program, by letter dated November 29, 1984. On September 6, 1984, Smith was disruptive, defiant and profane in the school cafeteria. She refused to go to the principal's office and Mr. Burke was called to remove her to his office. Smith was counseled and warned regarding her misbehavior and defiance. On September 28, 1984, Smith was involved in a fight in the art classroom. On November 7, 1984, Smith was involved in a fight wherein she attacked another student. Smith continued to verbally threaten the other student after the altercation was broken up by Mr. Burke. Smith has been involved in numerous other incidents of verbal and physical abuse of school personnel and students. Her behavior repeatedly interfered with the ability of other students to receive an education.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Julie Annette Smith to the alternative School program at Douglas MacArthur Senior High School-South. DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1985. COPIES FURNISHED: Mrs. Evangelene Smith Bryant Parent of Julie Annette Smith 10990 S.W. 223rd Street Miami, Florida 33170 Frank R. Harder, Esquire Assistant School Board Attorney Twin Oaks Building/Suite 100 2780 Galloway Road Miami, Florida 33165 Ms. Maeva Hipps, Clerk of the School Board of Dade County Board Administration Building 1450 N. E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1410 N.E. Second Avenue Miami, Florida 33132
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact. Jorge Barahona is a sixteen (16) year old repeat eighth grader enrolled in the Respondent, School Board of Dade County, Public School System. Petitioner's parents, Mr. and Mrs. Julio Barahona, were notified by letter dated March 16, 1983, by certified mail, return receipt requested, that Jorge, who was then attending Kinlock Park Junior High School, was being transferred to the Youth Opportunity School South based on his disruption of the educational process in the regular school program. Prior to the Respondent's decision to assign Petitioner to an alternative placement, Respondent, through its staff, undertook various measures in an effort to quell Jorge's disruptive activities and to provide an educational setting for him in a regular classroom. These measures included counselor referrals on October 13, 15, 19, 21, and 27, 1982. At that time, a committee including Petitioner's teacher, the school's then assistant principal, W. George Cosgrove, and a guidance counselor all discussed the Petitioner's disruptive activities and placed him in the "outreach program". The Outreach Program is designed to utilize extraordinary measures to attempt to foster respect in students who exhibit disruptive behavior while attending school in a regular classroom. While placed in the Outreach Program, Jorge was again referred repeatedly to counselors for disruptions. On November 1, 1982, Jorge was advised that his next referral would result in an indoor suspension. Petitioner was repeatedly absent from school during the early part of November, 1982, and when he returned to school on the fifth (5) day following the November vacation, he was again referred for counseling due to disruptive conduct. At that time, December 3, 1982, he was given a five-day indoor suspension. During mid-January, 1983, Petitioner was again referred for counseling by three instructors which resulted in an extension of an earlier indoor suspension. On November 21, 1983, Petitioner embarked upon a course of abusive and profane outbursts which resulted in his being escorted to the Principal's office where he was again given an additional two-day indoor suspension. Petitioner's defiant behavior continued and an internal disciplinary committee decided to recommend that he be reassigned to the Opportunity School Program at Youth Opportunity School South. The Position of Petitioner's Parents The Petitioner's parents voiced their contention that Petitioner did not violate any school rules when he was assigned to the regular school program and that Petitioner had recurring medical problems which were the cause of his behavior. Finally, the parents (of Petitioner) contend that the school officials are not treating the Petitioner fairly by recommending the alternative placement for Petitioner. The evidence reveals that Petitioner is eligible for an educational alternative program because he is disruptive, disinterested and unsuccessful in a normal school environment. Rule 6A-1.994(2), Florida Administrative Code. There is no evidence to support the Petitioner's claim that he was unfairly treated due to the fact that he is the subject of an alternative educational assignment. Respondent's recommendation of Petitioner was based on a history of repeated disruptions by Petitioner while enrolled in a regular school environment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the School Board enter a Final Order assigning Petitioner to an alternative school program. RECOMMENDED this 10th day of October, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1983.
The Issue Whether Respondent should be assigned to the school system's opportunity school program.
Findings Of Fact At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue herein concerns Respondent's appeal of the School Board's assignment of George S. Mulet, Jr. to an alternative school placement.
Findings Of Fact Based on the documentary evidence received and the entire record compiled herein, the following relevant facts are found: By letter dated February 9, 1983, the Petitioner, School Board of Dade County, Florida, administratively assigned Respondent, George Sixto Mulet, Jr. to Youth Opportunity School--South--in accordance with a recommendation of the principal and screening committee of the Petitioner's Department of Alternative Education Placement. The basis for that action was allegedly the Respondent's disruption of the educational process in the regular school program. By letter dated March 8, 1983, and received by the Division of Administrative Hearings on March 21, 1983, the Petitioner referred the matter to the Division of Administrative Hearings for a hearing pursuant to Chapter 120, Florida Statutes. The matter was duly scheduled by copy of a notice of hearing served on the parties dated April 11, 1983, noticing the matter for hearing for April 27, 1983. In this regard, the undersigned's secretary received a message from Marta Quinones, Respondent's mother, stating that she was requesting a continuance of the hearing. The undersigned Hearing Officer's secretary advised the parent, Marta Quinones, that it would be necessary to request a continuance in writing. No such written request was received, nor was the undersigned Hearing Officer, or Petitioner's counsel, advised in writing, or otherwise, that the Respondents would not appear at the hearing as scheduled. Accordingly, I shall recommend that the matter be referred to the School Board of Dade County to take final action consistent with its preliminary assignment based on the Respondent's failure to administratively pursue its appeal rights.
Recommendation Based on the foregoing findings and conclusions, it is hereby RECOMMENDED: That the matter be referred back to the Petitioner, School Board of Dade County, Florida, to take final action pursuant to the recommendation made herein based on the Respondent's failure to exhaust, or otherwise pursue, its appeals protections pursuant to Chapter 120.57(1), Florida Statutes. RECOMMENDED this 17th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire Law Offices of Jesse J. McCrary, Jr. Suite 800, 3000 Executive Plaza 3050 Biscayne Blvd. Miami, Florida 33137 Mrs. Marta Quinones 3531 Southwest 91 Ave. Miami, Florida 33165 Mr. Leonard M. Britton Superintendent Dade County School Board Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Jose L. Rizo was a student at Henry H. Filer Junior High School during the 1984-85 school year until his assignment to the alternative school. During his attendance at Filer, Rizo was involved in numerous instances of misbehavior that required disciplinary action. On November 9, 1984, Rizo was reprimanded and warned for cutting class. He received three additional reprimands and warnings for general disruptive behavior and for being in an unauthorized area on November 30, 1984; for general disruptive behavior and cutting class on December 18, 1984; and for excessive tardiness and for being in an unauthorized area on January 22, 1985. He was also placed on indoor suspension. On February 4, 1985, Rizo was placed on outdoor suspension for assault and battery. Rizo was disciplined for excessive tardiness on February 12, 1985, for general disruptive behavior and nonattendance on March 8, 1985, and for nonattendance on March 15, 1985. He was given dropout prevention counseling, but his misbehavior and nonattendance continued. On April 1, 1985, Rizo was again referred for discipline for excessive absences. On April 2, 1985, he was placed on outdoor suspension for aggravated assault and battery and a Complaint of Truancy was filed. Rizo was again referred for nonattendance on April 5, 1985. Finally, on April 15, 1985, Rizo was again placed on suspension for fighting . A recommendation for alternative school placement was made on April 24, 1985. Rizo will turn sixteen on October 10, 1985. He has expressed his intention to quit school at that time. Despite active intervention by school officials, Rizo's lack of interest in school and his failure and refusal to attend school remains unchanged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Jose L. Rizo to the alternative school program at Jan Mann Opportunity School North. DONE and ENTERED this 26th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Suite 800, 300 Executive Plaza 3050 Biscayne Blvd. Miami, Florida 33137 Mrs. Idelio Rizo 1160 West 30 Street Hialeah, Florida 33012 Dr. Leonard Britton Superintendent of Schools School Board of Dade County 1450 NE Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Otis J. Clayton was a student at Nautilus Junior High School during the 1983-84 and 1984-85 school years. He attended Miami Beach Senior High School during the 1985-86 school year until his assignment to the alternative school. While at Nautilus, Clayton had an extensive history of disruptive behavior in class. During the 1983-84 school year, Clayton consistently, regularly and persistently disrupted class by yelling, using abusive language to others including teachers and students, hitting other students, talking and playing in class, and defying authority. He was counseled and disciplined and conferences were held with his mother. Despite constant assistance by the school, Clayton did not change his disruptive behavior. He was finally suspended on June 6, 1984. In addition to his disruptive behavior, Clayton was disinterested and unsuccessful as evidenced by his excessive absences and skipping class. His absences in various classes ranged from 16 to 26 for the 1983-84 school year. During the 1984-85 school year, Clayton's disruptive behavior continued. On February 21, 1985, Clayton was suspended for five days as a result of his disruptive behavior, defiance of school authority and fighting. Again on March 1, 1985, Clayton was disciplined for fighting. Clayton was disciplined and counseled regarding his continuous disruption and defiance in class on March 20, 1885. On March 29, 1985, Clayton was placed on indoor suspension for five days for his repeated disruption, defiance and use of provocative language. Clayton was disciplined on April 2, 1985, for his disruptive behavior and for picking on other students. He was placed on a five day outdoor suspension on April 23, 1985, for his repeated disruption of class, defiance of school authority and assault. Finally, Clayton was again suspended for five days on May 13, 1985, for his repeated disruptive behavior and defiance. Clayton had been hitting other students. During the 1984-85 school year Clayton's absences and skipping class had also increased. He had a cumulative absence total of 34 and a record of absences in various classes ranging from 22 to 71. Clayton began attending Miami Beach Senior High School for the 1985-86 school year. His misbehavior and absenteeism continued. On October 17, 1985, Clayton was disciplined for excessive tardiness. On October 23, 1985, he was again disciplined for excessive tardiness and excessive absences. He was suspended for five days on October 25, 1985 for his general disruptive behavior, defiance, excessive tardiness, refusal to serve detention and refusal to serve an indoor suspension. Finally, on November 4, 1985, Clayton was suspended for 10 days for disruptive behavior, defiance, and excessive tardiness and absences. He had been absent 25 days during the first grading period and he had received grades of F in all classes. On November 5, 1985, the parent was informed by letter that Clayton was being referred to the alternative school program. Because Clayton is an exceptional student, an educational placement staffing conference was held on November 8, 1985. During that staffing a new Individual Educational Plan (IEP) was developed which included placement in the opportunity school at Douglas MacArthur Senior High School-North. Clayton's mother was present at the staffing and signed the IEP approving Clayton's placement at MacArthur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Otis J. Clayton to the alternative school program at Douglas MacArthur Senior High School-North. DONE AND ENTERED, this 7th day of March, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1986. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Martha C. Donalds 1558 Northwest 1st Avenue Miami, Florida 33139 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132
The Issue The issue presented is whether a rule establishing high school attendance zones is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Respondent is the School Board of Orange County, Florida (School Board). The School Board is an educational unit and an agency defined in Subsections 120.52(1)(b)7. and (6), Florida Statutes (2004). Respondent is the governing body of the Orange County School District (School District or District). In relevant part, Respondent has exclusive constitutional authority to "operate, control and supervise all free public schools" within the District pursuant to Article IX, Section 4(b) of the Florida Constitution (2004) (Florida Constitution). On January 11, 2005, Respondent adopted a rule establishing attendance zones for four high schools in western Orange County, Florida (Orange County). The rule modifies previously existing attendance zones for Apopka High School (Apopka), Olympia High School (Olympia), and West Orange High School (West Orange); and establishes a new attendance zone for Ocoee High School (the relief school). It is undisputed that the establishment and modification of school attendance zones involves rulemaking. The parties agree that the adoption of the relevant school attendance zones satisfies the definition of a rule in Subsection 120.52(15), Florida Statutes (2004). Petitioners challenge the rule as an invalid exercise of delegated legislative authority defined in Subsection 120.52(8), Florida Statutes (2004). In relevant part, Petitioners allege that Respondent violated Subsections 120.52(8)(a) and (e), Florida Statutes (2004), by materially failing to follow applicable rulemaking requirements and by adopting a rule in an arbitrary and capricious manner. Before proceeding to the merits of the rule challenge, it is important from a jurisdictional and contextual perspective to note that this Final Order does not reach any matter that falls within the scope of Respondent's exercise of constitutional authority. For reasons discussed in the Conclusions of Law, Respondent has exclusive constitutional authority to operate, control, and supervise public schools within the District (local control). The Legislature has constitutional authority over matters of statewide concern.2 The Legislature cannot statutorily delegate authority that is constitutionally vested in Respondent.3 For purposes of the rule challenge, the exercise of constitutional authority by Respondent is not the exercise of delegated legislative authority within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). As a factual matter, the challenged rule involves local control of only those public schools within the District that are affected by the rule. The school attendance zones do not have application beyond the boundaries of the School District. The school attendance zones do not benefit or otherwise affect citizens of the state outside the District.4 The trier of fact has avoided findings concerning matters of local control, including the merits of the school attendance zones, the wisdom of the collective decision of the School Board, and the motives and intent of the individual members of the School Board. Jurisdiction to determine the invalidity of a rule involving matters of local control is the exclusive province of the courts.5 Legislative authority over matters of statewide concern includes the authority to ensure that local school attendance zones are drawn in a manner that complies with uniform requirements for fairness and procedural correctness. The Legislature delegated that authority to Respondent when it enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida Statutes (2004). The trier of fact has made only those findings needed to determine whether the exercise of delegated legislative authority is invalid within the meaning of Subsections 120.52(8) and 120.56(1), Florida Statutes (2004). The challenged rule affects the substantial interests of Petitioners within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). Petitioner, Citrus Oaks Homeowners Association, Inc. (Citrus Oaks), is a Florida nonprofit corporation, organized as a homeowners' association pursuant to Chapters 617 and 720, Florida Statutes (2004). The members of Citrus Oaks own residences in the Citrus Oaks subdivision. A substantial number of the members of Citrus Oaks are substantially affected by the challenged rule. A substantial number of members have children who are students in a public school affected by the challenged rule. The challenged rule reassigns many of those students from the Olympia school zone to the West Orange school zone. The subject matter of the rule is within the general scope of interest and activity of Citrus Oaks. The relief requested is of a type that is appropriate for Citrus Oaks to receive on behalf of its members. Citrus Oaks has represented its members in previous litigation, although this is the first administrative proceeding for Citrus Oaks. More than a substantial majority of the members of Citrus Oaks expressly authorized Citrus Oaks to undertake this proceeding for their benefit. Petitioner, Joy Hutchison, is the mother of Jamie Petkov and Kirsta Petkov. Mrs. Hutchinson and her children reside in Citrus Oaks in a neighborhood identified in the record as Gotha, Florida. At the time of the administrative hearing, Jamie Petkov and Kirsta Petkov attended Gotha Middle School (Gotha). Jamie Petkov and Kirsta Petkov would have attended Olympia in the absence of the challenged rule. The challenged rule changes the attendance zone of each student to West Orange. The challenged rule splits feeder patterns intended to ensure that students in adjacent neighborhoods stay together through progressive grades. The challenged rule assigns some students from Gotha to the Olympia school zone and assigns other Gotha students to the West Orange school zone. Differences in West Orange and Olympia do not affect the substantial interests of Petitioners. The two schools offer comparable, but not identical, educational programs. Each school is accredited by the Southern Association of Accreditation. Each is a comprehensive high school with a full range of academic opportunities for students and Advanced Placement (AP) classes for college credit. Each school offers comparable student-teacher ratios, teachers with advanced degrees, and extracurricular activities. West Orange and Olympia are not identical. Homebuyers generally prefer Olympia to West Orange. Area realtors emphasize location within the Olympia school zone as a marketing feature for homes. Prospective homebuyers generally request homes within the Olympia school zone. Approximately 100 students residing outside the Olympia attendance zone have falsified their domicile information in order to enroll in Olympia. Disparities between West Orange and Olympia do not deny Petitioners a uniform system of education. A uniform system of education does not require uniformity among individual schools in physical plant, curricula, and educational programs.6 The rule development process that culminated in the challenged rule began sometime in March 2004. Three staff members in the District office of the Director of Pupil Assignment (the Director) were responsible for recommending school attendance zones to the Superintendent and his cabinet. The Director and her staff pursued negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). In March 2004, the staff began to establish relevant time lines. In April and May of the same year, staff met with principals of schools potentially subject to rezoning. Staff requested each school principal to submit the names of three individuals to serve on a school rezoning committee to work with the staff. Each school rezoning committee was comprised of the "PTSA president, SAC chairperson, and another member." Each school rezoning committee was a negotiating committee within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). Each school rezoning committee was a balanced committee of interested persons who drafted complex rules in anticipation of public opposition. Each committee worked in good faith to develop group consensus for a mutually acceptable proposed rule. The Director and her staff provided packages to each school rezoning committee. The packages included information concerning time lines; rezoning criteria; maps; demographic information about neighborhoods; transfer policies; transportation; and school data such as demographics, enrollment, and original design capacity. Each committee developed proposed attendance zones based on eight rezoning criteria prescribed in the packages. The eight rezoning criteria are identified in the record as: operate under the current desegregation order; consider future planning and growth of attendance zones; equally distribute population to balance facility use of affected schools; consider reducing student transportation distances, when necessary; maximize the number of students walking to school; maximize the school feeder pattern structure; minimize the disruption of residential areas; and ensure demographic balance, when possible. Each committee was required to give overriding importance to the first three of the eight criteria. The school rezoning committees produced approximately 11 initial proposals. The Director and her staff scrutinize various proposals and received citizen input during three public meetings on August 25 and October 5 and 25, 2004. Each public meeting was a rule development workshop within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004). Approximately 600 members of the public attended the first workshop conducted on August 25, 2004. Many members of the public spoke at the meeting or provided written input concerning the various proposals. Staff and committee members considered the public input and scrutinized the proposals. Staff reduced the number of proposals to seven, identified in the record as options A through G, and conducted a second workshop on October 5, 2004. Between 400 and 500 members of the public attended the second workshop. As the meeting "wore on," the Director concluded that no consensus on a single proposal was attainable at that time and adjourned the meeting. After the second workshop on October 5, 2004, the staff developed one recommendation for rezoning and two best options identified in the record as the recommendation, option A, and option F. Staff presented the recommendation to the Superintendent at a cabinet meeting, but also included, for informational purposes, the two options. Attendees at the cabinet meeting included "area superintendents," the chief financial officer, the chief facilities officer, the chief operations officer, and the deputy superintendent for curriculum instruction. The Superintendent and his staff vetted the recommendation before the recommendation was presented to the public as the "Staff Proposal" during a third workshop conducted on October 26, 2004. Approximately 500 members of the public attended the third workshop. The Director presented the Staff Proposal and received public input. The Staff Proposal reassigns 435 students from Apopka to the relief school; 136 students from Olympia to West Orange; and 2,315 students from West Orange to the relief school. The Staff Proposal does not rezone students in Citrus Oaks from Olympia to West Orange. There was no discussion at the third workshop of rezoning options other than the Staff Proposal. It is undisputed that Respondent complied with applicable rulemaking procedures from the initiation of the rulemaking process, through the third workshop conducted on October 25, 2004, when staff presented the Staff Proposal. The alleged violations of applicable rulemaking procedures occurred from October 26, 2004, through January 11, 2005. During that interval, Respondent amended the Staff Proposal and adopted the challenged rule. From October 26 through November 29, 2004, Mrs. Karen Ardaman, a member of the School Board, conducted several non- public conferences with the Director and her staff. The non- public conferences were workshops conducted for the purpose of rule development within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004) (private workshops). The private workshops did not involve negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). The private workshops were conducted between a member of the School Board and District staff for the official business of rule development. Mrs. Ardaman stated to the Director and her staff that the purpose of the private workshops was to "tweak" the Staff Proposal. Mrs. Ardaman expressed a specific goal of rezoning at least 300 students from Olympia and an optimal goal of reducing Olympia enrollment to design capacity, if possible. The workshops were extensive and produced four "work-up" proposals identified in the record as Petitioner's Exhibits 20 through 23. One of the work-up proposals was adopted by Respondent as the challenged rule on January 11, 2005.7 Each private workshop included "what-if" questions from Mrs. Ardaman to staff members intended to scrutinize alternative school rezoning scenarios. Each scenario involved specific neighborhoods, the demographic breakdown for the neighborhood, the actual number of students, and the number of students to be reassigned. One work-up extended the West Orange zone to an area north of State Road 50. Another work-up reduced the Apopka enrollment from 4,265 to 3,830, or approximately 650 students over design capacity of 3,187. The private workshops included conversations regarding the use of permanent modular classrooms to relieve overcrowding at Olympia. Mrs. Ardaman requested staff to explore the possibility of adding permanent modular classrooms. On November 30, 2004, the Superintendent published in an area newspaper of general circulation a Notice of School Board Meeting scheduled for December 6, 2004. In relevant part, the notice stated that the purpose of the meeting is to discuss "West Orange Apopka Relief School Rezoning." The public meeting conducted on December 6, 2004, was a rule development workshop within the meaning of Subsection 120.54(2), Florida Statutes (2004). The School Board considered the Staff Proposal and the Ardaman alternative (the alternative proposal). The alternative proposal was circulated to the other members of the School Board. Two members left the workshop early. The remaining five members, including Mrs. Ardaman, reached consensus to reject the Staff Proposal and to advertise the alternative proposal as the proposed rule. On December 11, 2004, the Superintendent published a Notice of Proposed Action on High School Attendance Zones in The Orlando Sentinel. The public notice advertised a public hearing scheduled for January 11, 2005, to adopt the proposed rule. That portion of the public notice entitled, "Summary of Proposal" states, in relevant part, that the proposed rule reassigns students residing in Citrus Oaks from Olympia to West Orange. The meeting conducted on January 11, 2005, was a public hearing within the meaning of Subsection 120.54(3)(c)1., Florida Statutes (2004). Members of the School Board adopted the proposed rule by a vote of four to three. Mrs. Ardaman voted with the majority. The private rule development workshops between a school board member and District staff failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004). Respondent provided no public notice of the private workshops. Respondent failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004), for the rule development workshop that Respondent conducted in public on December 6, 2004. The notice published on November 30, 2004, was less than 14 days before December 6, 2004. The published notice did not include an explanation of the purpose and effect of either the Staff Proposal or the alternative proposal. The published notice did not cite the specific legal authority for either proposal and did not include the preliminary text of each proposal. Respondent failed to comply with other rulemaking procedures prescribed in Subsection 120.54(2)(c), Florida Statutes (2004). Respondent precluded public participation during the rule development workshop on December 6, 2004. Therefore, the persons responsible for preparing the respective proposals did not explain either proposal to the public and were not available to answer questions from the public or to respond to public comments. The failure to comply with applicable rulemaking procedures is presumed to be material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). § 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts to Respondent to rebut the presumption. Id. Respondent did not rebut the presumption with evidence that the fairness of the proceeding was not impaired or that the proceeding was procedurally correct. Respondent did not show that it cured the materiality of the failure to comply with applicable rulemaking procedures (procedural errors) by satisfying other rulemaking requirements such as those in Subsection 120.54(3)(e), Florida Statutes (2004). After December 11, 2004, when Respondent published the notice of proposed agency action to adopt the proposed rule, Respondent did not show that it filed a certified copy of the proposed rule with the agency head, together with other relevant materials, for public inspection. For reasons stated hereinafter, the public hearing conducted on January 11, 2005, did not cure the materiality of prior procedural errors. A preponderance of evidence shows the failure to comply with applicable rulemaking procedures was material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). The procedural errors impaired the fairness and procedural correctness of the development and adoption of the challenged rule. In relevant part, the failure to provide public notice of the private workshops deprived members of the School Board and the public from equal participation, an opportunity to scrutinize various scenarios, and an opportunity for input and comment. The private workshops circumvented six months of prior negotiated rulemaking and public workshops between District staff, rezoning committees, the public, and the Superintendent and his cabinet; and reduced the public process to a shell into which non-public decisions were later poured. The public notice advertised on November 30, 2004, was inadequate. The notice deprived interested members of the School Board and the public of prior notice that the scope of the workshop on December 6, 2004, would include rezoning proposals not addressed in previous public workshops. The procedural errors materially changed the Staff Proposal and materially affected some students not assigned to Olympia in the Staff Proposal. For example, the Staff Proposal decreases Olympia enrollment, through reassignment of students to West Orange, by 136 students; or approximately four percent of the 3,337 students enrolled in Olympia on October 15, 2004; and approximately three percent of the 3,410 students projected to be enrolled in Olympia in the next school year (the 2005-2006 school year). The challenged rule decreases Olympia enrollment by 285 students. That is more than twice the decrease in enrollment in the Staff Proposal. The challenged rule decreases enrollment at Olympia by approximately eight percent of the 3,332 students enrolled in Olympia on November 15, 2004; and approximately eight percent of the projected enrollment of 3,410 for the following school year. The procedural errors materially impact the original design capacities at Olympia and West Orange. The original design capacities at the respective schools are 2,781 and 3,195 students. The enrollment at Olympia on October 15, 2004, in the amount of 3,337 students, exceeded original design capacity by 556 students (overcrowding), or approximately 19.9 percent. The enrollment at West Orange on the same date, in the amount of 4,320 students, exceeded original design capacity by 1,035 students, or approximately 32.4 percent. The Staff Proposal reduced overcrowding at Olympia to 420 students, or approximately 15.1 percent of original design capacity; and added 136 students to West Orange enrollment, or approximately 4.2 percent of original design capacity at West Orange. Based on enrollment on October 15, 2004, the challenged rule decreases overcrowding at Olympia to 271 students, or approximately 9.7 percent of original design capacity; and adds 285 students to the West Orange enrollment, or approximately 8.9 percent of original design capacity.8 The materiality of the procedural errors is exacerbated by the scheduled loss of the Ninth Grade Center at West Orange in the 2005-2006 school year. That event will reduce actual capacity at West Orange from the original design of 3,195 students to 1,993 students. This is a capacity loss of 1,202 students. The challenged rule adds 285 students to West Orange enrollment next year, which is an increase of approximately 14.3 percent over actual capacity. The Staff Proposal adds 136 students to West Orange enrollment, which is an increase of approximately 6.8 percent over actual capacity. The Staff Proposal and challenged rule leave West Orange with 2,236 and 2,385 students, respectively, or approximately 243 and 392 students over next year's actual capacity of 1,993 students. Overcrowding at West Orange from the Staff Proposal is approximately 12.19 percent of actual capacity next year, and overcrowding from the challenged rule is approximately 19.66 percent of actual capacity. The Staff Proposal reduces overcrowding at Olympia next year from 19.99 percent to 15.1 percent over capacity and leaves overcrowding at West Orange over 12.19 percent. The challenged rule reduces overcrowding next year at Olympia from 19.99 percent to approximately 9.7 percent and leaves overcrowding at West Orange at 19.66 percent over actual capacity. The procedural errors facilitated a challenged rule that departs materially from recommendations by the Olympia rezoning committee. The rezoning committee recommended no change at the school. In relevant part, the committee wrote: While we recognize that Olympia remains overcrowded, aggressive, proactive measures should be taken to address overcrowding of Olympia in other ways. Specifically those measures include: Exploring the possibility of adding "permanent" modular structures; and Increasing efforts to remove students who attend Olympia illegally claiming an address in our zone but who actually live out of zone. West Orange is left with room for the growth they expect. Petitioner's Exhibit 14 (P-14). The Orange County Commission, in a decision entered on July 14, 1998, prohibited "portable" classrooms on the Olympia campus in the original design of the school. The decision, however, does not expressly prohibit "permanent" modular classroom structures. Sufficient property exists on the Olympia campus to accommodate permanent modular classroom structures. The procedural errors that occurred in adopting the challenged rule materially affected students in Citrus Oaks who are reassigned to West Orange. The challenged rule will interrupt feeder patterns at Gotha by reassigning some Gotha students to West Orange and allowing others to attend Olympia. The preceding findings concerning variations between the Staff Proposal and the challenged rule are made solely for examining the materiality of procedural errors. The findings do not examine the merits of the challenged rule or the wisdom of the decision of the School Board. Respondent maintains a stated agency policy that prohibits an individual member of the School Board from participating in any matter pending before the Board in which the member has a conflict of interest. In relevant part, the written policy provides: Board members are expected to avoid conflicts of interest involving any matter pending before the board. A conflict of interest is deemed to exist when the member is confronted with an issue in which the member has a personal . . . interest or . . . circumstance that could render the member unable to devote complete loyalty and singleness of purpose to the public interest. . . . The accountability to the whole district supersedes: * * * c. Conflicts based upon the personal interest of a board member who is a parent of a student in the district. P-6, at 001945. Mrs. Ardaman is a member of the School Board who is a parent of three students in the Olympia school zone. When District staff presented the Staff Proposal, one student was a senior at Olympia, another was a sophomore at Olympia, and the youngest was in the sixth grade at Gotha. Mrs. Ardaman did not have a conflict of interest concerning the Staff Proposal, option A, or option F. None of those proposals reassigned any of the Ardaman children from Olympia to West Orange. A deemed conflict of interest existed for Mrs. Ardaman during: the private workshops she conducted with District staff for the purpose of rule development; the public deliberations at the meeting conducted on December 6, 2004; and the vote of the School Board members that took place at the public hearing conducted on January 11, 2005. Courts have recognized that each concerned parent has an interest in his or her children, the educational program in which each is enrolled, the prevention of disruption in the educational progress of each child, and any unwarranted disruption in the child's educational experience.9 Mrs. Ardaman had a judicially recognized interest in developing and adopting a rule that minimized the foregoing impacts on her children. Citrus Oaks sits on the northern boundary of Old Winter Garden Road (Winter Garden). The Ardaman children reside in a neighborhood to the south of Winter Garden. Mrs. Ardaman chose to reassign Olympia students to West Orange from three neighborhoods north of Winter Garden, including students in Citrus Oaks, and to reassign Olympia students to West Orange from only one neighborhood south of Winter Garden. The challenged rule does not achieve the optimal goal sought by Mrs. Ardaman of reducing Olympia enrollment to the original design capacity. The challenged rule could have achieved that goal by increasing the number of reassignments to West Orange from the geographic area south of Winter Garden. Mrs. Ardaman declined that option. During the non-public workshops, Mrs. Ardaman asked District staff to analyze numerous school rezoning scenarios based on reassignments from specific neighborhoods. Although the various scenarios included neighborhoods south of Winter Garden, Mrs. Ardaman did not ask staff to analyze a scenario that would have reassigned students in her neighborhood from Olympia to West Orange. Reassignment of Olympia students in the neighborhood in which Mrs. Ardaman resides would have interrupted feeder patterns for Gotha students. At the time, Mrs. Ardaman had a child in the sixth grade at Gotha. The challenged rule interrupts feeder patterns at Gotha for students residing in neighborhoods north of Winter Garden. Respondent exercised agency discretion in adopting the challenged rule in a manner that was inconsistent with officially stated agency policy. Respondent permitted a member of the School Board with a personal interest deemed to be a conflict of interest to participate in a pending matter before the School Board. The deviation from agency policy was material. The members of the School Board voted on January 11, 2005, to adopt the proposed rule by a vote of four to three. Mrs. Ardaman cast the deciding vote. Without the vote of Mrs. Ardaman, the remaining tie vote would have been insufficient to adopt the proposed rule.10 The deviation from agency policy was material for other reasons previously stated in the discussion of procedural errors and not repeated here. Respondent did not explain the deviation from officially stated agency policy. The adoption of the challenged rule was neither arbitrary nor capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes (2004). The agency action is supported by logic and essential facts. Respondent did not adopt the proposed rule without thought or reason, and the proposed rule is not irrational. Between December 6, 2004, and January 11, 2005, the members of the School Board received data sheets and impact assessments for the proposed rule. The members had already received the data supporting the Staff Proposal. The members had adequate time between December 6, 2004, and January 11, 2005, to evaluate the logic, essential facts, and rationality of the proposed rule. The members of the School Board were faced with a controversial issue and a difficult decision. Reasonable individuals arguably may have decided to draw the school attendance zones differently. However, it is not appropriate for the trier of fact to substitute his judgment for that of the members of the School Board or to examine the wisdom of the decision of the School Board. Even though Respondent did not adopt the challenged rule in an arbitrary or capricious manner, the procedural errors and deviations from officially stated agency policy were material. Each impaired the fairness of the proceedings and prevented the agency action from being procedurally correct.
