NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

SCHOOL BOARD OF POLK COUNTY ) FLORIDA, ) ) Appellant/Cross-Appellee, ) ) v. ) Case No. 2D12-3139 ) RENAISSANCE CHARTER SCHOOL, ) INC., and RENAISSANCE CHARTER ) SCHOOL AT POLK, ) ) Appellees/Cross-Appellants. ) ___________________________________ ) Opinion filed August 6, 2014.

A ppeal from the Board of Education. Frederick J. Murphy, Jr., of Boswell &Dunlap LLP, Bartow, for Appellant/CrossA ppellee. Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauderdale, for A ppellees/Cross-Appellants.

SLEET, Judge. The School Board of Polk County, Florida (the School Board) tim ely appeals an order of the Board of E ducation (the State Board) wh ich allows Renaissance Charter School, Inc. (Renaissanc e) to operate a charter school in Polk County over the objections of the School Board. The School Board argues that t he proposed charter- 2 - school's educational program did not "substantially replicate" that of the high-performing charter school being replicated. See § 1002.331(3)(a), Fla. St at. (2011). We agree and

reverse. The facts of this case are substantially similar to those artic ulated in School Board of Seminole County v. Renaissance Charter School, Inc., 113 So. 3d 72 (Fla. 5th DCA 2013). Here, Renaissance filed a high-performing charter school application pursuant to section 1002.331, for Renaissance Chart er School at Polk, a K through 8 charter school. It submitted a high-performing chart er middle school, Renaissance Charter Middle School (RCMS), which serves grades 6 through 8, as its replica school. Renaissance's planned charter school would ser ve grades K through 6 in its first year, grades K through 7 in its second year, and g rades K through 8 in its third year. At the time of the application, RCMS in Dade County had a little over 200 students. Renaissance proposed that Renaissance Charter School at Polk would open with 862 students and would grow to 1,415 students by its fifth year. After reviewing the application, the School Board concluded tha t the educational program set forth in the application did not substa ntially replicate that of RCMS. Additionally, the ten-page letter from the School Board' s attorney listed ninetyone reasons why the application did not meet statutory requirem ents for student performance, assessment and evaluation, education service provi ders, employment, transportation services, budget, action plan, mission and guidi ng principles, exceptional students, school discipline, student recruitment, and financial management and oversight.- 3 - In Seminole, Renaissance submitted a high-performing charter sc hool application for a similar K through 8 grade charter school in S eminole County. The replica school submitted by Renaissance was a 6 through 8 grade charter middle school in Broward County. Id. at 73. After review, the School Board of Seminole County denied the application based upon several of the same objection s lodged by the School

Board in this case. Id. The Se minole County School Board conc luded there was no way the proposed K through 8 gr ade charter school could substan tially replicate the Broward County charter middle school. Id. The Fifth District cogently analyzed the statute and agreed with the Seminole County School Board. It h eld that: "[T]o be 'substantially similar' within the meaning of the Florida Statu tes, a charter school must

have the same characteristics and be alike in substance or esse ntials to the school it is replicating. Common sense dict ates that a middle school, which covers only grades 6 through 8, is materially different from a K through 8 school." Id. at 75. Here, the School Board articulated specific objections to the a pplication in a forty-seven-page Charter Review Committee report. Renaissanc e was given several opportunities during a work session, interview session, and a p ublic hearing to respond to the School Board's objections. When asked by the School Boa rd how the proposed K through 8 school could replicat e an existing middle school, R enaissance's attorney stated: "It is not the same school because the K -- the grade levels are different. We were replicating our method and model, pursuant to the statute. " During the appeal hearing before the State Board, Renaissance a rgued that the material issue was not substantial replication, but in stead whether the proposed charter school would be a high-performing school. The School B oard countered that- 4 - section 1002.331 required substantial replication. The State B oard's half-page order stated that "the School Board failed to show by clear and convi ncing evidence that the Charter Applicant's application did not materially comply with the requirements of section 1002.33(6)(c)3.b., Florida Statutes." The order did no t include any findings of

fact. It is the School Board's burden to prove by clear and convincin g evidence that the high-performing charter school application does not co mply with the statutory requirements, including substantial replication. Section 1002. 33(6)(b)(3)(b)(III) provides that the School Board may deny t he charter application if "[t]h e proposed charter school's educational program does not substantially replicate t hat of the applicant or one of the applicant's high-per forming charter schools." We agree with the School Board that Renaissance's proposed char ter school's educational program did not substantially replicate th at of RCMS. The proposed school, composed mostly o f kindergarten and elementary grade students, and the middle school on which the application was based neither sh are the same characteristics, nor are they alike in substance or essentials. Furthermore, nowhere in the record did any representative of Renaissance articulate how the educational program of the high-performing middle school would be replicate d so as to serve the students of different age and grade levels. As in Seminole, Renaissance argues that this court should consi der

RCMS and Renaissance Charter El ementary School as one school fo r purposes of their application because they share a ca mpus and a website. See Sem inole, 113 So. 3d at 76. We decline. Renaissance did not include any information r egarding this elementary- 5 - school in its written application, work session presentation, i nterview responses, and written responses to the Charte r Review Committee. See Thornbe r v. City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st DCA 1988) ("That an appellate court may

not consider matters outside the record is so elemental there i s no excuse for an attorney to attempt to bring such matters before the court."). Moreover, section 1002.331(3)(b) limits a high-performing charter school to one a pplication for a charter school per year. Renaissance Charter Elementary School was use d as a replica to support an application seeking a high-performing charter school in Leon County at the same time that Renaissance filed the instant application. If t he legislature intended to allow Renaissance to replicate any of its high-performing chart er schools more than once per year, it would not have expressly limited the number o f charter school applications. Renaissance filed a cross appeal and contends that it was denie d procedural due process because the School Board did not conduct a "substantive hearing and take evidence" before denying the high-performing c harter application. Because the Administrative Procedure Act does not apply to proc eedings before the State Board and Renaissance did not request a formal hearing, t here was no due process violation. See Seminole, 113 So. 3d at 77. The record demonstrates that Renaissance was afforded due process within the parameters of t he charter school

statute. We agree with the Fifth District's determination that there are certain deficiencies in the charter school statute. Id. at 76. First, the statute does not expressly provide in what type of forum the sponsor or school board is to present "clear and- 6 - convincing evidence" sufficient to deny the application. Nor d oes the statute provide for any form of evidentiary hearing or review. The brevity of the State Board's final order frustrates appellate review; however, the statute does not expr essly require the State Board to provide findings of fact and conclusions of law. Despite the statutory deficiencies, the record is sufficient to demonstrate that the School Board's decision to deny Renaissance's charter application is supported by clear and convincing evidence. See § 1002.33(6)(b)(3)(b); s ee also Seminole, 113 So. 3d 76. Accordingly, we reverse the order of the State Boar d approving Renaissance's application.

Reversed. NORTHCUTT, and KELLY, JJ., Concur.