SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA, APPELLANT,
v.
CHARVIN SMITH, APPELLEE

Fla. 2d DCA | 1989-01-13
No. 88-1834
RYDER and LEHAN, JJ., concur.
537 So. 2d 168 Florida District Court of Appeal, Second District (1989)

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Synopsis

The School Board of Pinellas County appeals an administrative order requiring it to provide free transportation for a trainable mentally handicapped student to a different exceptional student center due to parental loss of confidence in the original facility. The court reverses, holding that without evidence the original facility failed to provide a free appropriate public education, the school board cannot be required to bear the expense of transporting the student to a geographically distant alternative facility.


Holding

The school board is not legally required to provide transportation to the geographically distant Stephens facility. The hearing was improperly focused on reclassification rather than determining whether a transfer was necessary, and there was no evidence that Harris was failing to provide a free appropriate public education. Without such evidence, the school board cannot be required to incur the additional expense of transporting the student to an alternative facility.


Headnotes

[1] A school board is not required to provide transportation to a geographically distant facility when it is already providing a free appropriate public education at a local…

[2] A hearing officer's authority is limited to the issues properly before them; a hearing to determine student classification does not authorize an order for transportation…

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Key Quotes

“We find that the hearing below was not conducted for the purpose of determining whether appellee should be transferred from Harris to Stephens and, if so, should appellant provide transportation for such a transfer. The hearing below was conducted for the sole purpose of considering appellee's reclassification into a different category of mentally handicapped student.”

Establishes that the administrative hearing exceeded its proper scope by ordering a transfer when the hearing was only about classification.

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Facts & Procedural History

Appellee, a trainable mentally handicapped student, had been attending the Nina Harris Exceptional Student Center (Harris) in St. Petersburg since 198…

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Opinion of the Court
CAMPBELL, Chief Judge.

CAMPBELL, Chief Judge.

Appellant, School Board of Pinellas County, appeals an order of the Division of Administrative Hearings requiring appellant to provide free transportation for appellee student to a facility for the trainable, mentally handicapped outside the geographic area where appellee lives and wherein she has been attending another such facility for the trainable, mentally handicapped. Appellant operates the Paul B. Stephens Exceptional Student Center (Stephens) located in Safety Harbor and serving the northern part of Pinellas County. Appellant also operates the Nina Harris Exceptional Student Center (Harris) located in St. Petersburg and serving the southern part of Pinellas County. Each facility provides programs for trainable, mentally handicapped students as defined in Florida Administrative Code Rule 6A-6.-03011(l)(b). Appellee has been attending Harris since 1985.

During the 1987-1988 school year, appel-lee’s parents became concerned with the possibility of sexual abuse occurring at Harris because of the arrest of a counselor at Harris on that charge. The record does not reflect that appellee was involved in the alleged incident leading to the counselor’s arrest on the charge of sexual abuse. Police investigations later resulted in a finding that the charge of sexual abuse involving the counselor was unfounded. Nevertheless, appellee’s parents withdrew her from public schools from November 3, 1987, through April 26, 1988. Since returning to Harris, appellee has continued to make academic progress. Her parents, however, requested a hearing to determine whether appellee was properly classified as a trainable, mentally handicapped student or should be reclassified as a less severely mentally handicapped student or as an autistic student.

At the hearing, held at the parents’ request, appellant established that appellee was properly classified as a trainable, mentally handicapped student. The hearing officer further found that appellee had not suffered sexual abuse at Harris, and that it was in appellee’s best interest to remain in a program for the trainable, mentally handicapped students. However, the hearing officer also found that appellee’s parents had lost confidence in Harris and ordered that appellee be allowed to attend the Stephens facility and that appellant should provide transportation for appellee to that facility. While appellant has no objection to appellee attending the Stephens facility, it does object to the requirement that it must pay the expense of her transportation to that facility. Appellant has no transportation system currently available to transport appellee to the Stephens facility.

We agree with appellant and reverse and remand for two reasons. First, we find that the hearing below was not conducted for the purpose of determining whether appellee should be transferred from Harris to Stephens and, if so, should appellant provide transportation for such a transfer. The hearing below was conducted for the sole purpose of considering appellee’s reclassification into a different category of mentally handicapped student. She was found to be properly classified. Second, there has been no showing at the hearing below that appellant was not providing at Harris a free appropriate public education as is required by the laws of this state and the United States. See § 230.23(4)(m), Fla.Stat. (1987); 20 U.S.C. §§ 1401-1462 (1982).

We conclude that there is no legal basis to require appellant to incur the additional expense of transporting appellee to a geographically distant facility when there is no evidence that appellant is not otherwise providing appellee with the necessary and appropriate free public education. See Hendry County School Board v. Kujawski, 498 So. 2d 566 (Fla. 2d DCA 1986).

REVERSED AND REMANDED.

RYDER and LEHAN, JJ., concur.


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