The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a 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 information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue The issues presented, as framed by the Fifth District’s December 16, 2020, Order are: (1) whether the School Board is entitled to appellate attorney’s fees pursuant to section 1002.33(8)(b), Florida Statutes; and (2) the amount of attorney’s fees to which the School Board is entitled.
Findings Of Fact The Underlying Matter (DOAH Case No. 19-6424) The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). A detailed recounting of the underlying matter can be found in The School Board of Brevard County v. Legacy Academy Charter, Inc., DOAH Case No. 19-6424 (DOAH Aug. 18, 2020), which concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs for Underlying Matter (DOAH Case No. 20-3911F) On August 28, 2020, the School Board filed a Motion for Attorneys’ Fees, Costs, and Sanctions, which was assigned DOAH Case No. 20-3911F. The undersigned conducted a final hearing in DOAH Case No. 20- 3911F on November 6, 2020. The School Board’s expert on attorneys’ fees at that hearing, Nicholas A. Shannin, Esquire, testified that the hourly rate of $200 for partners and associates at the School Board’s Orlando-based law firm of Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS), was “incredibly reasonable.” The undersigned held that the $200 hourly rate GWDS charged the School Board for its attorneys was reasonable, and ultimately ordered Legacy, pursuant to section 1002.33(8)(b), to pay the School Board a total of $312,147.80, broken down as follows: (a) $271,162.00 in attorneys’ fees; and (b) $40,985.80 in costs. See The School Bd. of Brevard Cty. v. Legacy Academy Charter, Inc., DOAH Case No 20-3911F (DOAH Dec. 4, 2020). Attorney’s Fees for Appeal (Case No. 5D20-1762) The School Board’s Affidavit of Attorneys’ Fees details the attorney’s fees that the School Board seeks in the appeal, and includes the detailed billing records of GWDS. This affidavit avers that the hourly rate actually billed by counsel was $200 for attorney Erin O’Leary, Esquire, who is Board Certified in Appellate Practice by The Florida Bar, and who handled the appeal. The affidavit further avers that Ms. O’Leary’s total number of hours billed in the appeal was 42.5 hours. Although GWDS attorney Debra Babb-Nutcher, Esquire, participated as counsel in the appeal, including supervising Ms. O’Leary and assisting in case strategy, preparation of documents, and communications with the School Board and opposing counsel, the School Board only seeks to recover the total amount of attorney’s fees charged by Ms. O’Leary. In DOAH Case No. 20-3911F, the undersigned found that the $200 hourly rate GWDS charged the School Board of its attorneys was reasonable, and the undersigned finds that a $200 hourly rate charged by Ms. O’Leary for representing the School Board on appeal is reasonable. The hours expended in this matter are reasonable given the time and labor required, the unique arguments raised by Legacy in attempting to stay the closure of its school, the lack of legal precedent, the multiple factual claims that required rebuttal, the short time frame in which to respond making other work impossible, the significant effort required to defend against the stay, as well as the ultimate success achieved in defeating Legacy’s attempted stay. The School Board has demonstrated that the attorney’s fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in the appeal. Legacy has filed nothing to dispute the School Board’s request for appellate attorney’s fees. The Lodestar figure (i.e., the fees charged and hours expended) by Ms. O’Leary in this appeal is $8,500.00 for the work performed between August 19, 2020, through December 3, 2020. The undersigned finds that this Lodestar figure is reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in Rule 4-1.5 of the Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). The undersigned finds that the total fee amount of $8,500.00 for the appeal of the underlying matter, Case No. 5D20-1762, shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b).2
The Issue The issues presented are: (1) the amount of attorneys’ fees and costs to which Petitioner School Board of Brevard County (School Board) is entitled as the prevailing party in the underlying matter, DOAH Case No. 19-6424 (underlying matter); and (2) whether sanctions are warranted.
Findings Of Fact The Underlying Matter The underlying matter concerned whether Legacy’s school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in the School Board’s November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b). The Division received the Petition for Administrative Hearing on December 5, 2019, and provided notice to the parties that this underlying matter was before the Division on December 9, 2019. The Division assigned the undersigned ALJ to the underlying matter. After conducting a telephonic pre-hearing conference on December 13, 2019, the undersigned scheduled the final hearing in this matter for a four- day live hearing, March 2 through 4, and 6, 2020, in Titusville, Florida. Section 1002.33(8)(b) provides that “[t]he hearing shall be conducted within 90 days after receipt of the request for a hearing and in accordance with chapter 120.” The parties have attempted to make an issue of the initial scheduling of the final hearing in this matter—and in particular, Legacy has contended that scheduling this hearing outside of a 45-day period provided in the First Amended Charter between the School Board and Legacy (Amended Charter), executed September 11, 2018, caused unnecessary expense on the School Board’s behalf—but the undersigned, with the agreement of the parties at the December 13, 2019, telephonic pre-hearing conference, scheduled a final hearing in this matter that complied with the section 1002.33(8)(b) requirement that the hearing be conducted within 90 days. The School Board immediately thereafter began engaging in discovery to which Legacy did not timely respond. On February 12, 2020, Legacy filed its first “Opposed Motion to Continue with Good Cause,” which requested a continuance of the final hearing because of health issues confronting Legacy’s interim principal and intended client representative, Charlene Montford, in North Carolina. Additionally, on February 12, 2020, the School Board filed a Motion to Compel Depositions and Opposition to Respondent’s Motion to Continue, where it argued that it had not had the opportunity to depose Ms. Montford and another Legacy board member. The undersigned conducted a telephonic hearing on this motion on February 18, 2020, and entered an Order Denying Respondent’s Motion to Continue and Requiring Joint Status Update that same date. The parties filed a Joint Status Report on February 20, 2020, and reported that the parties could not agree on dates for depositions of Ms. Montford and the board member, and requested another hearing on this issue. Then, on February 21, 2020, Legacy filed a Motion to Reconsider Denial of Continuance, which provided additional details about Ms. Montford’s health issues and medical appointments in North Carolina. The undersigned conducted a telephonic status conference on February 21, 2020, and on February 26, 2020, entered an Order Granting Respondent’s Motion to Continue, Rescheduling Hearing and Requiring Status Conferences, in which the undersigned determined that Legacy had established good cause for a continuance of the final hearing, and rescheduled it for May 18 through 21, 2020, in Titusville. The School Board, on February 28, 2020, filed motions to compel. On March 10, 2020, the undersigned entered an Order that granted in part, these motions to compel, and provided Legacy with additional time to respond to pending discovery. On March 12, 2020, the School Board filed a Notice of Production from Non-Party, which Legacy opposed in a response filed March 25, 2020. Additionally, Legacy filed an Emergency Opposed Motion of Continuance and Emergency Opposed Motion to Extend Discovery on March 20, 2020, which requested a continuance of the final hearing and an extension of discovery due to the impacts of COVID-19. On March 20, 2020, the undersigned entered an Order requesting that the parties be prepared to discuss, at a March 27, 2020, telephonic status conference, any critical deadlines that may be relevant to the consideration of a continuance. On March 26, 2020, a day before the first of two previously-scheduled pre-hearing telephonic status conferences, the parties filed the following pleadings: Petitioner’s Opposition to Respondent’s Emergency Motion for Continuance and Emergency Opposed Motion to Extend Discovery; Petitioner’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery; Respondent’s Motion for Protective Order; and Respondent’s Response to Petitioner’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery and Request for Fees. After the telephonic status conference on March 27, 2020, the undersigned entered, on March 30, 2020, an Order on Pending Pleadings, which: (a) denied Legacy’s request to continue the final hearing; (b) granted Legacy an extension (until April 13, 2020) to respond to all outstanding discovery; (c) denied the School Board’s motion for sanctions; and (d) directed the parties to mutually agree to schedule the deposition of Legacy’s corporate representative. Additionally, on March 27, 2020, the undersigned entered an Order on Petitioner’s Notice of Production from Non-Party, which overruled Legacy’s objections to the documents that the School Board sought from non-parties, and allowed the School Board to serve the subpoenas attached to its Notice of Production from Non-Party. On April 6, 2020, Legacy filed a Motion for [sic] Limine and Motion to Strike, which argued that the undersigned should not consider evidence of, or should strike grounds or allegations, relating to two categories: (1) evidence, including all underlying financial information, concerning Legacy’s alleged “deteriorating financial condition,” because jurisdiction for deciding how to proceed when a charter school experiences a “deteriorating financial condition” lies with the Florida Department of Education, pursuant to section 1002.345; and (2) evidence or grounds for termination that predate the Amended Charter, including allegations contained in a previous termination proceeding (DOAH Case No. 18-2778) that resulted in Legacy withdrawing its request for a final hearing. The School Board opposed Legacy’s motion in two separate pleadings. On April 23, 2020, the School Board filed a Motion to Compel Respondent’s Production in Response to Petitioner’s Request to Produce, and on April 24, 2020, filed a Motion to Compel Respondent’s Answers to Petitioner’s Interrogatories. On April 24, 2020, the undersigned conducted the second of two pre- hearing telephonic status conferences. On April 29, 2020, the undersigned entered an Order Denying Respondent’s Motion in Limine and Motion to Strike. Additionally, the undersigned issued an Amended Notice of Hearing, which moved the hearing in the underlying matter to the Zoom web- conference platform, due to the COVID-19 pandemic. On May 1, 2020, Legacy filed: (1) Response to Motion to Compel Respondent’s Second Amended Response to Interrogatories (Unverified due to COVID-19); (2) Response to School Board’s Motion to Compel Additional Production; and (3) Motion to Reconsider Denial of Motion for [sic] Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Information. Also on May 1, 2020, the School Board filed an Opposition to Legacy’s Motion to Reconsider Denial of Motion in Limine and Motion to Strike Evidence and Grounds for Termination Based Upon Financial Termination. On May 4, 2020, the undersigned issued an Order Denying Motion to Reconsider, as well as an Order Granting Motions to Compel. The Order Granting Motions to Compel ordered Legacy to provide verified answers to its second amended responses no later than May 8, 2020, and that if Legacy failed to provide responsive answers to those interrogatories, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. The Order Granting Motions to Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to provide responsive, non-privileged documents as ordered, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. On May 11, 2020, Legacy filed a Motion to Compel Production. Thereafter, on May 14, 2020, the School Board filed a Renewed Motion for Sanctions, noting that Legacy did not submit its answers to interrogatories or responsive documents until May 11, 2020—after the deadline imposed in the May 4, 2020, Order Granting Motions to Compel. Although originally scheduled for four days (May 18 through 21, 2020), the final hearing in the underlying matter actually lasted six days, from May 18 through 22, and 26, 2020. At the outset of the hearing, counsel for the School Board informed the undersigned that Legacy failed to timely provide witness and exhibit lists, and then filed an amended exhibit list (after filing its untimely exhibit list) that included additional exhibits. During counsel’s arguments on this issue, it became apparent that Legacy’s amended exhibit list contained not only untimely and previously-undisclosed exhibits, but also exhibits that contained material that Legacy did not provide during discovery. The undersigned excluded from evidence the undisclosed exhibits. As noted previously, the undersigned entered a Final Order in the underlying matter on August 18, 2020, that concluded that the School Board met its burden, by clear and convincing evidence, that it may terminate the Amended Charter. Attorneys’ Fees and Costs As the preceding paragraphs demonstrate, the parties engaged in vigorous pre-hearing motion practice, finding little agreement on even minor issues both before and during the final hearing. As additional context to the parties’ disinclination to cooperate during the underlying matter, each party filed its own pre-hearing stipulation. And, in a continuation of the spirit of non-cooperation, the parties filed separate pre-hearing stipulations in the instant matter. At the outset of the hearing in this case, and with the absence of a joint pre-hearing stipulation, the undersigned conciliated agreement on one of the taxable costs in this matter: Legacy agreed that it did not contest the School Board’s taxable cost for its expert witness in auditing (Laura Manlove) of $15,000.2 Petitioner’s Affidavit of Attorneys’ Fees and Costs details both the attorneys’ fees and costs that the School Board seeks in this matter. With respect to attorneys’ fees, it avers that the hourly rate actually billed by counsel was $200 for partners and associates. The affidavit includes the detailed billing records of the School Board’s Orlando-based law firm of record—Garganese, Weiss, D’Agresta & Salzman, P.A. (GWDS)—and the attorneys who worked on this matter. The summary of total attorneys’ fees requested is: Attorney Hours Rate Total Fees Debra S. Babb-Nutcher 728.30 $200.00 $145,660.00 Suzanne D’Agresta 1.50 $200.00 $300.00 Kate T. Hollis 776.40 $200.00 $153,000.00 Total: 1,506.20 $200.00 $298,960.00 At the November 6, 2020, final hearing, the School Board’s expert on attorneys’ fees, Nicholas A. Shannin, Esquire, testified to the reasonableness of the hours that the GWDS attorneys expended in this matter. Mr. Shannin has practiced law for 25 years, is board-certified in appellate practice, is the past President of the Orange County Bar Association, has previously represented governmental entities in litigation matters, and has been previously qualified in various courts and tribunals as an expert on attorneys’ fees. Mr. Shannin opined that the number of hours that the GWDS attorneys expended in this matter (1,506.20) was “reasonable, related, and necessary” in the “prosecution” of this case. He further opined that the hourly 2 The School Board presented the expert witness testimony of four other experts, who were also Brevard County School District employees and fact witnesses, during the underlying matter. The School Board does not seek to recover any expert witness costs for these other expert witnesses. rate of $200 for GWDS partners and associates was “incredibly reasonable,” and that, in fact, he felt $250-$350 per hour, for a government client, would be a more appropriate range. Mr. Shannin testified that, in his opinion, the foregoing totals (of fees and costs) are reasonable in light of the factors enumerated in the Rules of Professional Conduct, found in rule 4-1.5, Rules Regulating The Florida Bar, as well as Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). Mr. Shannin noted the time and labor required, novelty, and skills needed in this matter as factors in the reasonableness of the fees, as the GWDS attorneys expended over 1,500 hours in approximately nine months of litigation, where much was fought or contested, and since charter termination matters do not have a “well-worn path” of past precedent to guide parties. He also noted that Ms. Babb-Nutcher and Ms. Hollis likely were precluded from other employment during the pendency of this matter. Mr. Shannin stated that the rate was reasonable, that the results were absolute, and that this matter was significant, noting that it involved “public policy matters at the highest level.” Legacy disputed the reasonableness of the School Board’s requested fees on several grounds: (a) the School Board failed to assert the 45-day hearing requirement in the Amended Charter, thus, prolonging this matter and adding additional fees that the undersigned should not award; (b) the use of “block billing” is an improper billing practice that makes it difficult to determine the reasonableness of the requested fees; and (c) because the undersigned found that the School Board failed to establish, by clear and convincing evidence, one of the five asserted grounds for termination, the undersigned should reduce the amount of fees awarded by 20 percent. With regard to the 45-day hearing requirement in the Amended Charter, as previously discussed, the undersigned, with the agreement of the parties at the December 13, 2019, telephonic pre-hearing conference, scheduled a final hearing in this matter that complied with the section 1002.33(8)(b)’s requirement that the hearing be conducted within 90 days. Respondent made no contemporaneous objection to the hearing being scheduled within the 90-day statutory timeframe. And, as detailed in paragraphs 5-15 above, Respondent requested (and received) continuances of the final hearing, and, unfortunately, COVID-19 played a part in the process. The undersigned does not find that the School Board’s behavior in the underlying matter caused an unreasonable delay that resulted in an unreasonable or unnecessary expenditure in attorneys’ fees. With regard to “block billing,” which is the practice of including multiple tasks within a single billing entry,3 Legacy provided two examples of GWDS billing entries that undoubtedly fall within this definition, one of which was: Date Description Hours Amount Lawyer 4/6/20 Review latest ESE report for trial; prepare outline of ESE issues in preparation for trial; review Legacy’s “Motion for Limine” to prohibit evidence of financial issues, and to prohibit prior issues; e-mail exchange with S. Archer regarding depositions and DOE letter; review information regarding R. Moreno; strategize regarding effect of DOE process for corrective action plan and relevance to termination process; e-mails with S. Archer regarding same; review Building Hope corporate information; legal research regarding basis for Motion in Limine in DOAH cases; e-mails with C. Norwood regarding 7.20 1,440.00 DSB 3 See Kearney v. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1377-78 (M.D. Fla. 2010) (defining block billing as the practice of including “multiple tasks in a single time entry.”); Wise v. Kelly, 620 F. Supp. 2d 435, 450 (S.D.N.Y. 2008) (“Block billing is the practice of aggregating multiple tasks into one billing entry.”) (internal quotation marks omitted); Bobrow Palumbo Sales, Inc. v. Broan-Nutone, LLC, 549 F. Supp. 2d 274, 283 (E.D.N.Y. 2008) (“A reduction is also warranted where counsel engages in ‘block billing,’ such that multiple tasks are aggregated into one billing entry.”). deposition schedule; e-mail exchange with C. Norwood regarding false statements in Motion and contradictions; review replies; prepare draft notices of depositions with tentative dates; e-mail to C. Norwood requesting home addresses. 4/6/20 Exchange e-mails with S. Archer regarding financial statements and analysis/comparison; research regarding Building Hope and proposed representative for deposition; prepare memorandum and deposition notes regarding same; continued review of financial reports and update comparison spreadsheet with revenue from profit & loss information attached to December 10, 2020, Legacy board meeting minutes; review file and documents provided at March 31, 2020, meeting, prepare for April 7, 2020, meeting. 4.50 900.00 KTH The vast majority of the entries in the GWDS billing records are block entries. Although Mr. Shannin testified that these entries reflected each day being separated, with each entry containing sufficient detail as to the tasks completed, the undersigned finds that including multiple tasks within a single billing entity makes it difficult to assess the reasonableness of the totals on an hour-by-hour basis.4 The undersigned credits much of Mr. Shannin’s testimony as to the reasonableness of the hourly fee, as well as many of rule 4-1.5’s factors that 4 Legacy also introduced into evidence some of the billing records relied on in Lincoln Memorial Academy, which reflected that Manatee County School Board’s outside attorneys did not engage in block billing, at least during the attorneys’ fees phase of that matter. ALJ Robert Cohen found that these attorneys “maintained detailed records of all services rendered as evidence of the extensive time and effort dedicated to this matter.” F.O. at 6. Additionally, ALJ Cohen found that the respondent “did not dispute or otherwise offer any evidence disputing the reasonableness of the hourly rates charged[.]” F.O. at 11. he relied on to opine as to the reasonableness of claimed fees in this matter. However, though Mr. Shannin’s testimony as to the reasonableness of the hours devoted to this matter was credible and is generally accepted, due to the pervasiveness of the block entries, the undersigned is unable to perform an independent reasonableness assessment on an hour-by-hour basis. As an alternative approach, the undersigned shall apply an across-the-board percentage cut of 10 percent to the total hours of the GWDS attorneys, recognizing that its hourly rate of $200 per hour is reasonable. Such a reduction yields the following totals: Attorney Hours Rate Total Fees Debra S. Babb-Nutcher 655.47 $200.00 $131,094.00 Suzanne D’Agresta 1.35 $200.00 $270.00 Kate T. Hollis 698.76 $200.00 $139,752.00 Revised Total: 1,355.81 $200.00 $271,162.00 As to Legacy’s contention that the undersigned should reduce fees by 20 percent to reflect Legacy prevailing on four of the five bases for termination in the underlying matter, the undersigned finds that Legacy “prevailed” in the underlying matter, and is entitled to attorneys’ fees and costs, as prescribed in section 1002.33(8)(b). Turning to costs, the School Board’s Motion to Tax Costs, which detailed various costs incurred in the underlying matter, and the Affidavit of Attorneys’ Fees and Costs, which additionally provided supporting documentation for these costs, requests the following recoverable costs: Cost Amount Deposition Transcripts $5,282.55 Final Hearing Transcripts $15,501.50 Copy Costs $1,201.75 Trial Expert Witness Costs (Manlove) $15,000.00 Total: $36,985.80 At the final hearing, Mr. Shannin testified that his agreed hourly fee for providing expert testimony was $400 per hour. He further testified that he spent 10 hours in total (nine hours or preparation, and one hour for testimony at the final hearing), and expected to submit an invoice to the School Board for $4,000.00. The undersigned finds that this fee is an additional recoverable cost for the School Board. The undersigned finds that the foregoing expenditures total $40,985.80 in taxable costs, and shall be recoverable by the School Board, as prescribed in section 1002.33(8)(b). Sanctions As detailed in paragraphs 5-14 above, the School Board filed multiple motions to compel, for Legacy’s failure to timely and properly respond to the School Board’s discovery requests. The undersigned entered multiple Orders concerning these motions, the latest being a May 4, 2020, Order Granting Motions to Compel, which ordered Legacy to provide verified answers to its second amended responses to interrogatories no later than May 8, 2020, and that if Legacy failed to provide responsive answers to those interrogatories, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. The Order Granting Motions to Compel also ordered Legacy to provide all responsive documents requested no later than May 8, 2020, and that if it failed to provide responsive, non- privileged documents as ordered, the undersigned would consider, at the final hearing, whether such failure should result in the imposition of sanctions. Legacy actually e-filed its responsive answers to interrogatories and documents with the Division on May 9, 2020, which was a Saturday, and the School Board did not receive them until Monday, May 11, 2020, through the Division’s e-filing system. Legacy’s qualified representative and attorney did not attempt to timely provide these remaining responsive answers and documents utilizing methods other than the Division’s e-filing system. In essence, to respond to the School Board’s discovery (interrogatories and requests for production) served on January 20, 2020, it took multiple extensions, motions to compel, hearings on motions to compel, Orders on motions to compel, and, ultimately, the May 4, 2020, Order Granting Motions to Compel, to get Legacy to provide full responses, which even then ran afoul of the deadline provided in that May 4, 2020, Order Granting Motions to Compel. At the final hearing in the underlying matter, the undersigned excluded from evidence documents that were not provided pursuant to the May 4, 2020, Order Granting Motions to Compel. Significantly, the undersigned excluded progress monitoring reports related to ESE students, because the School Board requested these progress monitoring reports during discovery, but Legacy failed to produce them. Although the School Board provided clear and convincing evidence that Legacy failed to provide significant compensatory education service minutes to its students, the undersigned also found: Although [Legacy ESE teacher Jamie Luna’s] testimony that Legacy has completed regular and compensatory ESE services for the 2019-2020 school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs. F.O. at 33. The School Board requests additional monetary sanctions against Legacy, its Qualified Representative, and its counsel of record, for its conduct in failing to respond to discovery and the undersigned’s Orders. Legacy argues that sanctions are not warranted because Ms. Montford, its corporate representative, interim principal, and “designee” of the Governing Board to facilitate discovery requests, was diagnosed with serious, documented health issues during the pendency of this matter, which required immediate treatment by healthcare providers in North Carolina, and these serious health issues should be considered in understanding any delays in discovery. The undersigned previously found, in the underlying matter, that Ms. Montford’s serious health issues constituted good cause for a continuance of the final hearing. Legacy also argues that the COVID-19 pandemic further complicated its ability to respond to the School Board’s discovery. Legacy’s Qualified Representative, Mr. Norwood, contends that any discovery delays were beyond his control, and were the responsibility of Legacy, not him. Legacy’s counsel of record, Mr. Clark, who did not appear at the final hearing or at the final hearing in the underlying matter, but whose signature appears on Legacy’s pleadings, did not make any argument in Legacy’s Proposed Final Order, but would presumably similarly contend that any discovery issues were beyond his control. The undersigned finds that Legacy’s failure to timely provide discovery, after numerous motions to compel and Orders from the undersigned, warranted the imposition of sanctions at the final hearing in the underlying matter, in the form of the exclusion of evidence Legacy wished to introduce. See Fla. R. Civ. P. 1.380(4)(b)(2)(B). The undersigned declines to impose additional sanctions.
The Issue Whether Petitioners, Renaissance Charter School, Inc., and Renaissance Charter School at Tradition, can be required by the St. Lucie County School Board ("School Board") to offer regular school busing to all eligible charter school students residing more than two miles from the charter school. Whether Petitioner, Renaissance Charter School at Tradition, breached its contract with the School Board by not providing transportation to students in accord with the parties' charter school contract and Florida Statutes. Whether School Board Policies 3.90 and 8.31 constitute an invalid exercise of delegated legislative authority. Whether the School Board has charter busing policies which amount to illegal, unadopted rules under chapter 120, Florida Statutes (2014).
Findings Of Fact The Parties Renaissance Charter School, Inc., is a not-for-profit Florida corporation. Renaissance Charter School, Inc., currently owns and operates two charter schools in St. Lucie County: Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. The School Board is the "sponsor" of Renaissance Charter School at Tradition within the meaning of the charter school statute, section 1002.33. The School Board's Approval of Renaissance Charter School at Tradition's Charter Application and Charter Contract On August 1, 2012, a charter school application was submitted to the School Board by Renaissance Charter School, Inc., on behalf of Renaissance Charter School at Tradition. During the charter application and approval process, the School Board consistently contended that charter schools in St. Lucie County are required by law to offer regular school busing to all eligible students residing more than two miles from their charter school.1/ On September 17, 2012, the School Board's Charter School Evaluation Team recommended approval of the Renaissance Charter School at Tradition charter school application, subject to the charter school providing "a viable transportation plan that meets statutory requirements once a school site has been finalized." On May 14, 2013, the School Board, at a regular board meeting, unanimously approved its charter contract with Renaissance Charter School, Inc., for Renaissance Charter School at Tradition. The Renaissance Charter School at Tradition charter contract became effective upon approval by the School Board at its May 14, 2013, meeting. The term of the charter contract is five years, commencing on the first day of the 2013-2014 school year, and ending on June 30, 2018. The School Board and Renaissance Charter School at Tradition have a valid and binding charter school contract that is still in full force and effect. Applicable Transportation Provisions of Renaissance Charter School at Tradition's Charter Contract Section 6 of the charter contract between the School Board and Renaissance Charter School at Tradition, which governs student transportation, provides as follows: SECTION 6: TRANSPORTATION Cooperation Between Sponsor and School: The School shall provide transportation to the School's students consistent with the requirements of Part I.E. of Chapter 1006, and Section 1012.45, F.S. The School may contract with the Sponsor to provide transportation service. Reasonable Distance: Transportation will not be a barrier to equal access for all students residing within the District, and the School shall provide transportation to all students residing in the District subject to the limitations in this Section 6.B. Students residing within two miles of the school will be expected to furnish their own transportation, except that certain students, as specified in Section 1006.21, F.S., for example students with disabilities and elementary grade students who are subject to specified hazardous walking conditions, must be provided transportation, regardless of the distance from the school. For students who are geographically isolated, or who are unable to be transported on a school bus due to disabilities, the School will offer reimbursement to eligible parents residing within the District. This parental reimbursement shall be equivalent to the monies provided by the Sponsor to the School for transportation of the student. At the time of student application for enrollment, the School shall be responsible for informing parents of the transportation options available, including the reimbursement amount available in lieu of provided transportation to qualifying students. Compliance with Safety Requirements: The School shall demonstrate compliance with all applicable transportation safety requirements. Unless it contracts with the Sponsor for the provision of student transportation, the School is required to ensure that each school bus transporting the School's students meets applicable federal motor vehicle safety standards and other specifications. The School agrees to monitor the status of the commercial drivers' licenses of each school bus driver employed or hired by the School (hereafter "School Bus Drivers") unless it contracts with Sponsor to provide such services. The School will provide the Sponsor, via the Charter Schools Support Department, an updated list each quarter of all School Bus Drivers providing commercial driver's license numbers, current license status and license expiration dates. Fees: The School may not charge a fee for transportation to which the student is entitled pursuant to state law. The School shall reimburse parents for parent-provided transportation costs if the student is legally entitled to transportation. Private Transportation Agreement: In the event the School will be contracting with a third party to provide transportation to its students, the School shall provide a copy of the transportation contract to the Sponsor at least sixty (60) days prior to the initial day of classes. Reimbursement for School Funded Transportation: The rate of reimbursement to the School by the Sponsor for transportation will be equivalent to the reimbursement rate provided by the State of Florida for all eligible transported students. Section 1 B) 4) of the charter contract further provides: 4) Statutory Requirements: The Parties will comply with Section 1002.33, F.S., and any regulations adopted by the State Board of Education or other state agency, or amendments thereto, pertaining to charter schools, and all applicable federal, state and local laws pertaining to civil rights and student health, safety and welfare. If any conflict exists between the provisions of the approved application or this Charter and any specific provision of law, then the provisions of the law shall prevail. The School shall be bound by amendments to applicable statutes, rules, and regulation, as any such amendments take effect. Unless specifically incorporated herein, the policies of the Sponsor do not apply to the School. However, if the School is statutorily required to have a policy and does not, the Sponsor's policy shall be deemed to apply. Students of Renaissance Charter School at Tradition and the School's Transportation Policy For a student to attend Renaissance Charter School at Tradition, their parents must apply during an open enrollment period, and a lottery system is used to determine who may attend. Parents whose child is selected through the lottery to attend Renaissance Charter School at Tradition are given a certain number of days to accept or decline the seat. Then the process starts over again until all seats are filled or there are no other students on the list. Renaissance Charter School at Tradition opened for the 2013-2014 school year as a K-6 school with 695 enrolled students. Projected enrollment for the 2013-2014 school year was 661 students. However, before the 2013-2014 school year began, projected enrollment had increased to 745 students. Renaissance Charter School at Tradition opened for the 2014-2015 school year as a K-7 school with 890 enrolled students and an enrollment cap of 945 students. For the 2015-2016 school year, Renaissance Charter School at Tradition plans to open as a K-8 school with projected enrollment of 1,075 students. For the 2016-2017 school year, Renaissance Charter School at Tradition plans to open as a K-8 school at maximum capacity of 1,145 enrolled students. The only "A" graded schools in St. Lucie County, Florida, for the 2013-2014 school year were Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. There is a waiting list for grades K-3 at Renaissance Charter School at Tradition. Parents of students enrolled at Renaissance Charter School at Tradition recognize that Renaissance Charter School at Tradition provides their children with a unique educational opportunity. Parents of students enrolled at Renaissance Charter School at Tradition recognize that the decision to enroll their children at Renaissance Charter School at Tradition is a personal choice and not a privilege. Parents of students enrolled at Renaissance Charter School at Tradition are active partners in the education of their children. Renaissance Charter School at Tradition does not provide regular school busing to its students who reside more than two miles from the charter school. Renaissance Charter School at Tradition re-evaluates its transportation policies on a yearly basis. Parents of students are informed that Renaissance Charter School at Tradition does not offer regular school busing in informational meetings before they apply for their child to attend the school. Parents of students enrolled at Renaissance Charter School at Tradition sign a "Parent Obligation Form," contractually obligating themselves "[t]o provide transportation to and from the school for my child." Parents are required to sign the "Parent Obligation Form" every year as part of the enrollment process. The transportation policy of Renaissance Charter School at Tradition, which is given to all parents upon enrollment, apprises parents that the school does not offer regular school busing to students, but that the school agrees to provide "transportation or an equivalent reimbursement" to students in certain legally-defined circumstances. The transportation policy of Renaissance Charter School at Tradition provides as follows: Student Transportation Policy Renaissance Charter School at Tradition's [sic], is and always has been, fully committed to ensuring that transportation will not be a barrier to equal access for all students residing within the District. To date, there are more students attending our newly-opened charter school than was projected for our first year. Although our school does not presently offer busing as a means of school transportation, we are in the process of helping put together parent carpools for those parents who want their children to share rides to and from school. Moreover, transportation, or an equivalent reimbursement, will be provided to any student who falls under any of the following categories [taken from Florida State Statute 1006.21]: Any student in grades K-8 who does not otherwise have access to an adequate educational facility or opportunity. Any student in grades K-6 who are subjected to a hazardous walking condition as defined in s. 1006.23 while en route to or from school. Any student in grades K-8 who have a documented transportation need in their IEP. Any student in grades K-8 who are pregnant, student parents, and/or the children of these students if a teenage parent program is presented at the school. If you feel your child falls within one of the categories listed above, please notify the front office and we will work with you on a case-by-case basis. The School Board rejected the transportation policy of Renaissance Charter School at Tradition because it does not provide for the regular school busing of all students residing more than two miles from the charter school. Renaissance Charter School at Tradition's failure to provide regular bus transportation to all students residing more than two miles from the charter school does not constitute a barrier to equal access to all students. At the hearing, no credible and persuasive evidence was presented that any students lack equal access to an adequate educational facility or opportunity. No evidence was presented that any students are subject to hazardous walking conditions while en route to or from the charter school. There is one student who enrolled on January 20, 2015, who has a transportation need documented in their individual education plan, but the child's parent has chosen to provide transportation. No evidence was presented of any students who are pregnant or who have given birth to any children. Renaissance Charter School at Tradition opens at 6:00 a.m. and closes at 6:00 p.m. There are before-and-after- care private buses that take students off-site to other organizations, such as to karate and the Boys and Girls Clubs. Renaissance Charter School at Tradition also encourages parents' use of carpooling their children to and from school. The School Board's position is that carpooling is not a viable transportation option for the charter school. At Renaissance Charter School at Tradition, one parent has decided to run a private busing service, but no other parents have chosen to use the services of that private bus.2/ The Charter Contract and Transportation Policy Do Not Require Petitioners to Transport by Regular School Bus All Students Residing More Than Two Miles From the Charter School The parties' dispute centers on whether the School Board can require Renaissance Charter School at Tradition to offer regular school bus transportation, to and from the school, for all students residing more than two miles from the school. The interests of Petitioners are directly and substantially affected by the School Board's attempt to require that Petitioners transport by regular school bus all students residing more than two miles from the charter school. The parties unsuccessfully mediated their dispute before the Florida Department of Education. The persuasive and credible evidence adduced at hearing demonstrates that Renaissance Charter School at Tradition has not breached its charter contract with the School Board by not providing regular school busing to all students residing more than two miles from the charter school. The charter school contract between the School Board and Renaissance Charter School at Tradition does not require Renaissance Charter School at Tradition to provide regular school busing to all students residing more than two miles from the charter school.3/ Renaissance Charter School at Tradition's transportation policy is consistent with its charter contract with the School Board. The School Board's Inequitable Treatment of Charter Schools The persuasive and credible evidence adduced at hearing demonstrates that the School Board's treatment of Petitioners is inequitable. The School Board has a "no transportation zone," which geographically encompasses approximately one-third of the county. Students of traditional public schools residing in the "no transportation zone" are not provided regular school bus transportation to and from school. The School Board also has a "limited transportation zone." Students of traditional public schools residing in the "limited transportation zone" are provided regular school bus transportation, but only if they attend a school located within the "limited transportation zone." The "no transportation zone" and "limited transportation zone" encompass approximately one-half of St. Lucie County. At the hearing, the School Board conceded that it has different policies for the transportation of traditional public school students and students at magnet schools and attractor schools. The School Board encourages the use of carpools for students of traditional public schools. The School Board's Alleged Unadopted Policy The School Board, in paragraph 20 of its counter- petition filed in Case No. 14-3267, specifically states: "The School District's adopted policy is that students who live more than two miles from their assigned school shall be provided school bus transportation." (emphasis added). The persuasive and credible evidence adduced at hearing demonstrates that the School Board interprets Florida law and its adopted School Board Policies 3.90 and 8.31 to require that all existing and future charter schools within the county provide regular school bus transportation for all students residing more than two miles from the charter school. The persuasive and credible evidence adduced at hearing demonstrates that the School Board does not have an unadopted policy that all charter schools within the county must provide regular school busing to all students residing more than two miles from their charter school. The School Board's Adopted Policies The School Board has two adopted policies, School Board Policy 3.90 (dealing with charter schools) and School Board Policy 8.31 (dealing with student transportation). The interests of Petitioner are directly and substantially affected by these policies.4/ Both School Board Policies 3.90 and 8.31 were properly noticed pursuant to chapter 120, Florida Statutes. Neither School Board Policy 3.90 nor 8.31 is specifically incorporated into the charter agreement between the School Board and Renaissance Charter School at Tradition. Moreover, according to the School Board, School Board Policy 8.31 applies only in the absence of a viable charter school transportation policy. The persuasive and credible evidence adduced at hearing fails to demonstrate that the School Board and Renaissance Charter School at Tradition mutually agreed that School Board Policy 3.90, or 8.31, apply to the charter school.
Findings Of Fact The Respondent, Jeffrey Allan Azis, is licensed by the Florida Department of Insurance as a General Lines Agent and did business as the American Automobile Insurance Agency, Inc., 603 NW 10th Avenue, Gainesville, Florida, during the period of time delineated in the Amended Administrative Complaint. The Respondent transacted the sale of motor vehicle insurance and an automobile club membership to the persons identified in Counts I, II, IV and V of the Administrative Complaint. Each of the persons identified in Counts I, II, IV and V of the Amended Administrative Complaint was charged for membership in an automobile club by the Respondent or his employees. With respect to Counts I through VI of the Amended Administrative Complaint, the following findings are made: Count I James E. Rippy, Jr., purchased automobile insurance directly from the Respondent at the American Auto Insurance Agency, Inc., Gainesville, Florida, on or about June 10, 1979. He requested the minimum coverage necessary to insure his vehicle to obtain a license tag. (Vol. 1, T-35) Mr. Rippy did not request motor club coverage and was not aware of what a motor club covered. (Vol. 1, T- 32) Sometime after purchasing insurance from the Respondent, Mr. Rippy discovered that his coverage included membership in a motor club. (Vol. 1, T- 33-34) At the Respondent's office, Mr. Rippy and his wife Norma, signed documents which included a membership application in Nation Motor Club with a membership fee of $25.00 [Respondent Exhibit 2(1)] and an application for coverage which included the following disclosure statement also signed by Mr. Rippy in addition to the application form: I understand the Nation Motor Club (NMC) membership applied for this date 6/30/79, through the American Auto Insurance Agency, Inc. is a separate item, that pays in addition to my auto insurance policy. I understand the additional charge for this coverage is included with my down payment. Applicant (signed) Mr. Rippy was not pressured by the Respondent to sign these documents and could have taken additional time to read and ask questions if he had desired. (Vol. 1, T-49-50) write and do mathematics at a basic level. Count II On or about December 4, 1979, Deborah M. Zapp purchased automobile insurance from American Auto Insurance Agency, Inc. Gainesville, Florida, from an employee of the Respondent's identified as "Judy". (Vol. 1, T-17) Ms. Zapp was unclear regarding the coverage she requested from Judy, but was sure that she would not have purchased motor club membership since she regarded it as an "extra". (Vol. 1, T-18-20) While at the agency on December 4, 1979, Ms. Zapp was asked to sign various papers which she read before signing. (Vol. a, T-20) These included a membership application in Nation Motor Club (Respondent's Exhibit 1) and an application form which contained the following disclosure statement: I understand the Nation Motor Club membership applied for this date 12/4/79, though the American Auto Insurance Agency, Inc. is a separate item, that pays in addition to my auto insurance policy. I understand the additional charge for this coverage is included in my down payment. Applicant (signed) (Respondent's Exhibit 1) Ms. Zapp was not rushed while reading the documents presented to her for signing and could have taken as much time as she wanted to go over them. (Vol. 1, T-20) However, notwithstanding reading and signing the membership application and disclosure statement regarding the motor club, Ms. Zapp did not know she had purchased motor club coverage when she left the Respondent's office. (Vol. 1, T-21) Ms. Zapp is a graduate of Sante Fe Community College and attended a university for one year following her graduation. (Vol. 1, T-16) At the hearing on February 5, 1981, she appeared bright and fairly assertive. Count III In Count III, Petitioner alleges that the Respondent in the conduct of business under his license violated various provisions of the Insurance Code. The allegations of Count III requires an application of the facts found in Counts I and II to Sections 626.9521, 626.9541(11)(a), 626.9541(5)(a), 626.9541(15)(b), and 626.621(b), Florida Statutes. Count III is duplicated by Count VI and calls for legal conclusions which will be discussed in the conclusions of law section of this Recommended Order. Count IV The deposition of Charles D. Smith was admitted into evidence as Petitioner's Exhibit 10. Mr. Smith currently holds an insurance license and has a bachelor's degree. (Petitioner's Exhibit 10 at 4) Mr. Smith purchased automobile insurance from the American Auto Insurance Agency, Inc. on or about May 1, 1980 (Petitioner's Exhibit 10 at Appendix) Mr. Smith thought he was purchasing only Personal Injury Protection (PIP). (Petitioner's Exhibit 10 at 4) In order to get an auto tag, Mr. Smith requested the minimum coverage. (Petitioner's Exhibit 10 at 5) Like Mr. Rippy and Ms. Zapp, Mr. Smith signed an application for motor club membership and disclosure statement stating he understood he was purchasing motor club coverage at the time of his application for insurance. (Petitioner's Exhibit 10 at 7) Mr. Smith intended to purchase the minimum amount of insurance at the lowest price but did not require of either the Respondent or his employees whether motor club coverage was included in the price quoted. (Petitioner's Exhibit 10 at 8,9) Neither the Respondent nor his employees orally explained motor club coverage to Mr. Smith. At the bottom of Mr. Smith's insurance application the following disclosure statement was signed by him: I understand the interstate membership applied for this date 5/1/79, through the American Auto Insurance Agency, Inc. is a separate item that pays in addition to my auto insurance policy. I understand the additional charge for this coverage is included in my down payment. Applicant (signed) (Petitioner's Exhibit 10 at Appendix) Mr. Smith's decision to purchase from the Respondent was based solely on cost and not on any information provided by the Respondent or his employees. (Petitioner's Exhibit 10 at 13). Count V The deposition of Richard B. Divins was admitted into evidence as Petitioner's Exhibit 11. Mr. Divins' testimony parallels the other witnesses in that he also signed an application for motor club membership and a disclosure statement acknowledging the purchase and price. (Petitioner's Exhibit 11 at 11, 15, 16, 26) He purchased insurance and motor club coverage on July 13, 1979, from an employee of the Respondent at American Auto Insurance Agency, Inc., 603 NW 10th Avenue, Gainesville, Florida. (Petitioner's Exhibit 11 at 4,5) Mr. Divins thought he was purchasing only minimum liability insurance and was unaware that he had also purchased motor club coverage. (Petitioner's Exhibit 11 at 7,8) Mr. Divins is a senior in the School of Architecture at the University of Florida. (Petitioner's Exhibit 11 at 4. Count VI In Count VI, Petitioner alleges that the Respondent in the conduct of business under his license violated various provisions of the Insurance Code. Count VI requires an application of the facts found in Counts IV and V to Sections 626.9521, 626.9541 (11)(a), 626.9541(5)(a), 626.9541(15)(b) and 626.621(b), Florida Statutes. Count VI duplicates Count III and calls for legal conclusions and will therefore, be discussed in the legal conclusion section of this Recommended Order. Assuming that the witnesses who testified at the final hearing were representative of the Respondent's customers, his business was generally directed at persons who desired minimum automobile insurance coverage at the lowest possible price. (Vol. 1, T-17 and 31, Petitioner's Exhibit 11 at 7-8, Petitioner's Exhibit 10 at 8,9) An economic incentive existed to sell motor club memberships among agents whose customers desired minimum coverage due to the high commission rates associated with motor club policies. (Petitioner's Exhibit 9, Vol. 1, T-94-95, 97) Mr. Andrew Beverly was qualified as an expert witness on insurance matters and testified on behalf of the Respondent. (Vol. 1, T-29) Mr. Beverly owns the Florida Insurance School, serves as a consultant for several hundred insurance agencies and is a member of the Advisory Committee on Insurance Education of the Florida Insurance Department. (Vol. 1, T-78-79) A study by Mr. Beverly completed in 1979 for the Professional Insurance Agents Association of Florida demonstrated that insurance agents have been contacted by claimants or attorneys for claimants for failure to provide coverage or what is known in the industry as "errors and omissions." (Vol. 1, T-81-82) The Respondent is the first agent that Mr. Beverly has ever encountered who had difficulties arising from selling too much coverage. (Vol. 1, T-82-83) Mr. Beverly's conclusion concerning the value of motor club coverage and supplemental coverage generally is shared by Dr. Ronald T. Anderson, a colleague of Mr. Beverly's on the national faculty of the Society of Certified Insurance Counselors and an Insurance Commissioner of Colorado. (Vol. 1, T-83-85) In particular regard to this case, Mr. Beverly examined the application and disclosure statement signed by the witnesses for the Petitioner and responded to questions from counsel as follows: Q. Now, these documents -- if you would just take a look through those, you'll see in Respondent's Exhibits 3 and 4, I believe -- Respondent's Exhibit 1, for example, where in boldface type, the applicant for the insurance signs a statement regarding Motor Club. is that a common practice in the industry? A. It's a practice that is becoming extremely common with the careful and appropriate insurance agents to have a thorough documentation of each coverage, accepted or rejected by an injured. Q. And why is that? A. Partially because of the high incidents (sic) of Errors and Omissions insurance, claims coming in against insurance agents, and then partly so that the client himself will be completely aware of what it is that he's throwing away when he rejects a coverage so he'll know he hasn't bought that. Q. Does the type of procedure meet the standards of the industry in Florida for fire and casualty agents? A. It exceeds them. Q. Okay. What else, in your opinion, could Mr. Azis do in this type of situation other than have him sign the statements and advise him as he has testified to. A. Mr. Woods, there's nothing an insurance agent could possibly do, in my opinion, beyond explaining the coverage to the insured and then having him sign in his own handwriting. I can't believe that there is anything else that he could do. He's being as cautious as he possibly can. Q. You're not aware of any other practices or procedures that might even be better than this? A. I can't think of anything that you could do that could add to this great amount of documentation of the insurers election of what they purchased. Q. In your experience, is it common for people who have bought insurance to come back and question coverages? A. Yes, sir, it happens all the time. I have more than a hundred insurance agencies under contract at this hour, and I am constantly receiving long distance calls from agents: What do you do with this? What's the answer to it? Q. So, that's why they require the need for this documentation? A. Yes, sir. (Vol. 1, T-85-87) Mr. Beverly's testimony was not rebutted by the Petitioner and is accepted as credible. Although Respondent's license as a general lines agent in Florida expired as of August 30, 1980, he retains eligibility to become licensed for a period of two years from the date of licensure. Section 626.221(3)(f), Florida Statutes. (Petitioner's Exhibit 8)
Recommendation It is therefore RECOMMENDED that the Amended Administrative Complaint filed against the licensee, Jeffrey Allan Azis, be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1981. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1981. COPIES FURNISHED: Richard P. Harris, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 David Yon, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 =================================================================
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue The issue is whether Respondent's policy relative to the applicability of the maximum class-size statute to charter schools is a rule as defined in Section 120.52(16), Florida Statutes, which has not been adopted as required by Section 120.54, Florida Statutes.1/
Findings Of Fact Petitioners own and/or operate eight charter schools in Florida. They have been "substantially affected" by Respondent's maximum class-size policies at every level of implementation. Respondent's regulatory scheme requires charter schools to submit information and to comply with statutory class-size levels. Respondent's determination of non-compliance triggers penalties and adverse consequences for charter schools. Respondent has a comprehensive data management system for public school reporting and accountability. The system includes detailed definitions and reporting requirements on many facets of public education, including information on students, teachers, and public school facilities. This information has been incorporated by reference into Florida Administrative Code Rule 6A-1.0014, as database manuals. For example, the manuals contain a detailed student element using the Florida Inventory of School Houses (FISH) and a Classroom Identification Number, which creates an identifier for every classroom in every building and facility in the school district. Charter schools that do not have a "FISH" number may have one generated. Respondent uses a computational algorithm to calculate class size. The algorithm uses data elements and correlations to create classroom ratios. Many of the data elements are required by statute and/or existing rules for all public schools, including charter schools. For each school that does not meet class-size compliance requirements, a portion of funds attributed to that school will be transferred from operational funding to capital outlay funds. The amount transferred is equal to the full-time equivalent funds for the number of students over the cap. Respondent makes the initial transfer calculation, which is then replicated and approved by the State Board of Education, the Florida Education Finance Allocation Committee, and the Legislative Budget Committee. In November of 2007, Respondent calculated class size on the individual classroom level for all public schools, including charter schools. Respondent utilized data from the October student membership survey, which consists of data collected by the Respondent from public schools. The algorithm used by Respondent to calculate class size, including the data collected in November 2007, was not adopted as a rule until after the commencement of this proceeding. Class-size compliance forms, mandated by Respondent for use by charter schools that are determined by Respondent not to be in compliance with the maximum class-size act, have also not been adopted by any formal rulemaking process. Respondent's policies include an informal process for "appealing" adverse determinations. The informal appeal process has not been adopted as a rule. Respondent has published several Technical Assistance Papers, including TAP Nos: FY2005-04 and FY2006-01, applying the maximum class-size act and a computational class-size algorithm to charter schools. These papers were not adopted through the formal rulemaking process. Respondent withdrew TAP Nos: FY2005-04 and FY2006-01 by memorandum dated May 22, 2008. However, Respondent still maintains its policy that the maximum class-size act applies to Florida charter schools. In 2007, charter schools reported data and received data from Respondent regarding initial class-size figures. Some charter schools appealed the class-size calculations and the resulting transfer of operational funds to the State Board of Education. Cape Coral Charter School submitted information to Respondent, leading to a downward adjustment in the funds to be transferred to capital outlay. However, Cape Coral Charter School lost funds in part because of Respondent's initial determination that Cape Coral Charter School had failed to comply with the maximum class-size act. Respondent also formally determined in February 2008, that Cape Coral Charter School was ineligible to offer a voluntary pre-kindergarten program because of its 2007 determination that Cape Coral Charter School was not in compliance with the class-size strictures. The Florida Education Finance Program Appropriation Allocation Conference verified the transfer of capital outlay categorical funds as recommended by the Commissioner of Education on January 17, 2008. The Commissioner of Education recommended transfers in funds based upon class-size compliance to the State Board of Education, which approved the transfers on February 4, 2008. On February 21, 2008, the Legislative Budget Committee approved the transfer calculations. Florida Administrative Code Rule 6A-1.0014 incorporates by reference the database manual that Respondent uses to collect data from public schools on teachers, students and classroom space. The amendment to the rule, which became effective November 26, 2008, consists of an additional page in the database manual (Appendix AA). Appendix AA sets forth Respondent's class-size algorithm, which has been in use for several years. Appendix AA does not address the applicability of the maximum class-size act to Florida charter schools.
The Issue The issues in this case are whether disciplinary action should be taken against Respondent, Paul Marchese, Jr., d/b/a Prima Construction, for violation of Subsection 489.129(1)(q), Florida Statutes (2006), as alleged in the Administrative Complaint; and, if so, what disciplinary action should be imposed on his license to practice contracting.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times relevant to this proceeding, Respondent was a certified residential contractor, having been issued License No. CRC057007 by the Florida Construction Industry Licensing Board (Board). At all times relevant to this proceeding, Respondent, Paul Marchese, Jr., d/b/a Prima Construction, has been doing business as Prima Construction. ABC Supply Company, Inc. (ABC Supply Company), operates as a roofing supply distributor in the State of Florida. Respondent completed and signed a credit application with ABC Supply Company. The credit application required the applicant to provide the following information: type of business ownership; address of business ownership; officers of business ownership; and credit references. The credit application includes, if applicable, a space to list the applicant's state contractor license number. The credit application includes a personal guaranty that must be completed if the business ownership has less than $2 million in annual sales, is less than two years old, has less than ten employees, or is a partnership or proprietorship. If the personal guaranty section is completed and signed, the guarantor then becomes responsible and personally liable for any debts incurred by the business ownership. Respondent listed the applicant for the credit application with ABC Supply Company as "P & C Realty (Prima)" and signed the application as the president of the company. Respondent listed his certified residential contractor License No. CRC057007 on the credit application. P & C Realty is owned by Respondent and his wife. On or about January 18, 2002, Petitioner signed the ABC Supply Company credit application as president of "P & C Realty (Prima)." In addition to signing as the applicant, Petitioner signed the "guaranty" portion of the application, in which he agreed to serve as "guarantor" of any indebtedness of the buyer to ABC Supply Company. ABC Supply Company approved the credit application, which allowed P & C Realty to purchase roofing materials from ABC Supply Company. From February 2002 to April 2002, P & C Realty purchased various roofing materials from ABC Supply Company. The materials were used in the repair of houses owned by P & C Realty, and the houses were subsequently sold by P & C Realty. P & C Realty failed to pay for the roofing materials that were purchased between February 2002 to April 2002, and the account became past due. ABC Supply Company filed a civil lawsuit against P & C Realty and Respondent in the county court in Hillsborough County, Florida. On September 13, 2005, Hillsborough County entered a final judgment in favor of ABC Supply Company and against P & C Realty and Respondent, jointly and several, in the amount of $6,319.68 for P & C Realty and Respondent's failure to pay for roofing materials.1/ Respondent did not appeal the final judgment, but failed to satisfy the final judgment within 90 days. Moreover, as of the date of this proceeding, Respondent had not satisfied this judgment. The total investigative costs of this case to the Board, excluding costs associated with an attorney's time, for DBPR Case No. 2006-001485, was $288.68. On October 28, 2002, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case No. 2000-08685. That Final Order adopted and incorporated by reference the allegations in the Administrative Complaint. The Administrative Complaint alleged Petitioner violated the Standard Building Code of Sarasota County by first performing construction work without first obtaining the required building permit from the Sarasota Building Department, and, as a result thereof, the Sarasota County General Contractors Licensing and Examining Board revoked Respondent's privileges to pull permits in Sarasota County, Florida. Based on the foregoing, the Final Order in DBPR Case. No. 2000-08685 found Respondent guilty of violating Subsection 489.129(1)(h), Florida Statutes (2006), by being disciplined by any municipality or county for any act or violation of this part. Petitioner imposed a $2,500.00 fine and $165.51 in costs on Respondent in the case. On December 11, 2001, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case Nos. 2000-02105 and 2000-06442. The Final Order reflected that the case was resolved by means of a Settlement Stipulation in which Respondent agreed to pay a $5,000.00 fine, pay costs of $436.42, and, in the future, not violate the provisions of Chapters 455 and 489, Florida Statutes (2006), or the rules promulgated pursuant thereto. In the Settlement Stipulation related to the foregoing cases, Respondent neither admitted nor denied the allegations in the Administrative Complaints.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(q), Florida Statutes (2006), and imposing as a penalty an administrative fine in the amount of $5,000.00, proof of satisfaction of the civil judgment for Case No. 2003-7188-CC, and suspension of Respondent's certified residential contractor license until the civil judgment is satisfied; and Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $288.68. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2007.
