              NOT FINAL UNTIL TIME EXPIRES 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.

Appeal from the Board of Education.

Frederick J. Murphy, Jr., of Boswell &
Dunlap LLP, Bartow, for Appellant/Cross-
Appellee.

Edward J. Pozzuoli and Stephanie Alexander
of Tripp Scott, P.A., Fort Lauderdale, for
Appellees/Cross-Appellants.


SLEET, Judge.

             The School Board of Polk County, Florida (the School Board) timely

appeals an order of the Board of Education (the State Board) which allows Renaissance

Charter School, Inc. (Renaissance) to operate a charter school in Polk County over the

objections of the School Board. The School Board argues that the proposed charter
school's educational program did not "substantially replicate" that of the high-performing

charter school being replicated. See § 1002.331(3)(a), Fla. Stat. (2011). We agree and

reverse.

              The facts of this case are substantially similar to those articulated 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 Charter School at Polk, a K

through 8 charter school. It submitted a high-performing charter middle school,

Renaissance Charter Middle School (RCMS), which serves grades 6 through 8, as its

replica school. Renaissance's planned charter school would serve grades K through 6

in its first year, grades K through 7 in its second year, and grades 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 that the

educational program set forth in the application did not substantially replicate that of

RCMS. Additionally, the ten-page letter from the School Board's attorney listed ninety-

one reasons why the application did not meet statutory requirements for student

performance, assessment and evaluation, education service providers, employment,

transportation services, budget, action plan, mission and guiding principles, exceptional

students, school discipline, student recruitment, and financial management and

oversight.




                                            -2-
              In Seminole, Renaissance submitted a high-performing charter school

application for a similar K through 8 grade charter school in Seminole 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 objections lodged by the School

Board in this case. Id. The Seminole County School Board concluded there was no

way the proposed K through 8 grade charter school could substantially replicate the

Broward County charter middle school. Id. The Fifth District cogently analyzed the

statute and agreed with the Seminole County School Board. It held that: "[T]o be

'substantially similar' within the meaning of the Florida Statutes, a charter school must

have the same characteristics and be alike in substance or essentials to the school it is

replicating. Common sense dictates 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 application in

a forty-seven-page Charter Review Committee report. Renaissance was given several

opportunities during a work session, interview session, and a public hearing to respond

to the School Board's objections. When asked by the School Board how the proposed

K through 8 school could replicate an existing middle school, Renaissance'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 argued

that the material issue was not substantial replication, but instead whether the proposed

charter school would be a high-performing school. The School Board countered that




                                            -3-
section 1002.331 required substantial replication. The State Board's half-page order

stated that "the School Board failed to show by clear and convincing 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 not include any findings of

fact.

             It is the School Board's burden to prove by clear and convincing evidence

that the high-performing charter school application does not comply with the statutory

requirements, including substantial replication. Section 1002.33(6)(b)(3)(b)(III) provides

that the School Board may deny the charter 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."

             We agree with the School Board that Renaissance's proposed charter

school's educational program did not substantially replicate that of RCMS. The

proposed school, composed mostly of kindergarten and elementary grade students, and

the middle school on which the application was based neither share 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 replicated so as to serve the

students of different age and grade levels.

             As in Seminole, Renaissance argues that this court should consider

RCMS and Renaissance Charter Elementary School as one school for purposes of their

application because they share a campus and a website. See Seminole, 113 So. 3d at

76. We decline. Renaissance did not include any information regarding this elementary




                                           -4-
school in its written application, work session presentation, interview responses, and

written responses to the Charter Review Committee. See Thornber 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 is 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 application for a charter

school per year. Renaissance Charter Elementary School was used 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 the legislature intended to

allow Renaissance to replicate any of its high-performing charter schools more than

once per year, it would not have expressly limited the number of charter school

applications.

                Renaissance filed a cross appeal and contends that it was denied

procedural due process because the School Board did not conduct a "substantive

hearing and take evidence" before denying the high-performing charter application.

Because the Administrative Procedure Act does not apply to proceedings before the

State Board and Renaissance did not request a formal hearing, there 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 the 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




                                             -5-
convincing evidence" sufficient to deny the application. Nor does 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 expressly 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); see also Seminole, 113

So. 3d 76. Accordingly, we reverse the order of the State Board approving

Renaissance's application.

             Reversed.

NORTHCUTT, and KELLY, JJ., Concur.




                                           -6-
