       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

               SCHOOL BOARD OF ST. LUCIE COUNTY,
                          Appellant,

                                     v.

    SOMERSET ACADEMY, INC. and SOMERSET COLLEGE PREP
                   MIDDLE SCHOOL,
                        Appellees.

                              No. 4D16-1081

                           [November 15, 2017]

                          CORRECTED OPINION

   Appeal from the State of Florida, Department of Education; Pam
Stewart, Commissioner, DOE No. 2015-3228.

   Johnathan A. Ferguson, Fort Pierce, for appellant.

    Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach,
for appellees.

PER CURIAM.

   The School Board of St. Lucie County (“School Board”) appeals from an
order of the State Board of Education, which allows Somerset Academy,
Inc. (“Somerset”) to establish and operate a new charter school. The order
overturned the School Board’s denial of Somerset’s application to replicate
a high-performing charter school.         The School Board had denied
Somerset’s charter school application after determining that the
application failed to comply with the statutory requirements for replication
of a high-performing charter school. Because clear and convincing
evidence supported the School Board’s denial of Somerset’s charter school
application, we reverse.

   In August 2015, Somerset filed an application with the St. Lucie County
School Board to establish a middle school that would replicate a high-
performing charter school that it was currently operating in Broward
County. The application was made pursuant to section 1002.331, Florida
Statutes (2015), which allows “[a] high-performing charter school [to]
submit an application pursuant to s. 1002.33(6) in any school district in
the state to establish and operate a new charter school that will
substantially replicate its educational program.” § 1002.331(3)(a), Fla.
Stat. (2015). The proposed school, Somerset College Prep Academy Middle
School (“Somerset Prep”) was to be modeled after Somerset Academy
Middle School, Chapel Trail (“Chapel Trail”), and serve grades 6-8.

   A School Board evaluation team reviewed Somerset’s application and
accompanying materials, interviewed Somerset’s board members, and
utilized the Florida Charter School Application Evaluation Instrument for
high-performing replications during the evaluation process.          The
Evaluation Instrument, which was adopted by the Florida Department of
Education under Florida Administrative Code Rule 6A-6.0786, sets out
twenty standards that a school board must use as part of its review of a
charter school replication application. See § 1002.33(6)(b), Fla. Stat.
(2015).

    After completing its review of Somerset’s application, the evaluation
team determined that Somerset failed to demonstrate by clear and
convincing evidence that it was replicating its existing high-performing
middle school in Broward County pursuant to statutory criteria. Among
other things, the application failed to show any significant involvement in
the establishment and operation of the proposed charter school by those
involved in establishing and operating the Chapel Trail School. In
addition, the application failed to meet statutory requirements for
demonstrating, among other things, adequate financing and staff support
for its proposed educational programs and operational plan, an acceptable
reading curriculum and differentiated strategies, equal opportunities for
students with moderate to severe disabilities, effective governance and
management, and methods for encouraging the use of innovative learning
methods.

   Based on the Evaluation Instrument prepared by the evaluation team,
the Superintendent recommended that the School Board deny the
application.

   On September 22, 2015, the School Board held a public meeting at
which it considered Somerset’s application. After reviewing all the
materials submitted to the School Board, hearing testimony from Somerset
and community representatives, and considering the evaluation team’s
recommendation, the School Board unanimously voted to deny Somerset’s
application. On October 1, 2015, the School Board sent Somerset a Notice
of Denial letter, with supporting documents and transcripts detailing
numerous deficiencies in the application and outlining the reasons for

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denial of the application.

    Somerset appealed the School Board’s denial of its charter application
to the State Board of Education. In support of its denial, the School Board
provided the State Board of Education with a record of the materials it
considered at the hearing on the charter school application. In February
2016, after hearing oral argument from both parties, but without further
discussion or questions, the State Board of Education voted to grant
Somerset’s appeal and overturn the School Board’s denial. In March 2016,
the Commissioner of Education, Pam Stewart, acting on behalf of the State
Board of Education, issued a three-page final order cursorily stating the
State Board’s reasons for granting the appeal. The School Board appealed.

   Our review of the State Board’s reversal of the School Board’s decision
requires us to determine whether the School Board’s denial of the high-
performing replication charter application is supported by clear and
convincing evidence. Sch. Bd. of Seminole Cty. v. Renaissance Charter
Sch., Inc., 113 So. 3d 72, 76–77 (Fla. 5th DCA 2013); Sch. Bd. of Polk Cty.
Fla. v. Renaissance Charter Sch., Inc., 147 So. 3d 1026, 1029 (Fla. 2d DCA
2014).

   On appeal, the School Board argues that it demonstrated by clear and
convincing evidence a valid basis for denying Somerset’s application: the
application did not materially comply with the requirements of section
1002.33(6(b)3.b., Florida Statutes (2015). As such, the School Board
contends that its denial of the application should be upheld.

   Section 1002.33(6)(b)3.b., Florida Statutes (2015), provides that the
School Board may deny the charter application if the application fails to
meet any one of the five listed criteria. For example, the School Board may
deny an application if “[t]he proposed charter school’s educational
program does not substantially replicate that of the applicant or one of the
applicant’s high-performing charter schools.” § 1002.33(6)(b)3.b.(III), Fla.
Stat. (2015).

    Here, Somerset’s application alleged that the proposed school would
use the same education program and educational concept “as does
#5151,” the Chapel Trail school, but included vague, boilerplate
statements in an attempt to support those assertions. Furthermore, the
application included some educational staff it deemed vital to its
educational program, but failed to appropriately account for those staff in
its budget, which would also violate sections 1002.33(6)(b)3.b.(V) and
1002.33(6)(a), Florida Statutes (2015).


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   However, despite the School Board’s specific, detailed, and well-
founded objections to the deficiencies in Somerset’s application and clear
and convincing evidence that Somerset’s application did not materially
comply with the requirements of section 1002.33(6)(b)3.b., Florida
Statutes (2015), the State Board of Education issued an order overturning
the School Board’s decision and granted Somerset’s application to open
the charter school in St. Lucie County. Because clear and convincing
evidence supported the School Board’s denial of Somerset’s charter school
application, we reverse the order of the State Board rejecting the School
Board’s decision and approving Somerset’s application. See Sch. Bd. of
Indian River Cty. v. Somerset Acad., Inc., Nos. 4D16-1227 & 4D16-1228,
2017 WL 4417733 (Fla. 4th DCA Oct. 4, 2017); Sch. Bd. of Polk Cty. Fla.,
147 So. 3d at 1029; Sch. Bd. of Seminole Cty., 113 So. 3d at 77.

   Reversed.

TAYLOR, MAY and CIKLIN, JJ., concur.

                           *           *     *

   Not final until disposition of timely filed motion for rehearing.




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