IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: PAUL KUNZ, as next friend of W.K., a minor child, Plaintiff, v. SCHOOL BOARD OF PALM BEACH COUNTY, Defendant. ORDER ON MOTION TO DISMISS THIS CAUSE came before the Court on Defendant?s Motion to Dismiss. The Court considered the moving papers, responding papers, argument of counsel and authorities cited by counsel. As set forth in the Court?s Amended Order Specially Setting Case Management Conference, the Court previously directed the parties to submit proposed orders on Defendant?s Motion to Dismiss to address all issues presented in support and in opposition to the motion. The purpose was to provide the court with additional brie?ng on all of the issues presented by both sides given the limited amount of time reserved for the hearing on the matter and the issues raised. The Court then directed the parties? counsel to address all of the issues presented and in particular the following: 1. Whether Plaintiff has a legal right to pursue a private cause of action against the School Board for alleged violations of the Class Size Amendment based upon the expressed language set forth in the Class Size Amendment. 2. Whether Plaintiff has a legal right to pursue a private cause of action against the School Board for alleged violations of Section 1002.3], RS. and if so, whether Plaintiff?s complaint suf?ciently pleads a cause of action based upon alleged violations of Section 1002.3], PS. 3. Whether Plaintiff has standing to pursue county wide relief as opposed to solely individual relief. The Court received both parties? counsel?s new/amended proposed orders on the late afternoon of Friday, January 27, 2017. The Court has reviewed both parties? new/amended proposed orders. COMPLAINT Plaintiff?s Complaint seeks a declaration that the School Board is violating the Class Size Amendment to the Florida Constitution and seeks enforcement of that constitutional provision. Plaintiff alleges that his child, a kindergarten student at Addison Mizner Elementary School, is in a class of 21 students and one teacher. According to Plaintiff, this violates the ?constitutional directive that maximum class size for grades kindergarten through 3rd grade is 18 students as measured by ?students who are assigned to each teacher.? Plaintiff alleges that the School Board is ?falsifying its class counts in order to appear compliant with the Constitution.? Plaintiff alleges that the School Board ?took the position that it could average class size across grades kindergarten through 3rd because the District arbitrarily designated Addison Mizner a choice school. Addison Mizner, however, is not a choice school under the statutory definition.? Plaintiff's Complaint claims that the School Board has applied a method of calculating class size that violates the Class Size Amendment to the Florida Constitution. Plaintiff?s complaint seeks a declaration that the School Board?s ?student teacher count? is unconstitutional. Plaintiff seeks injunctive and mandamus relief. STANDARD FOR REVIEW OF MOTION TO DISMISS For purposes of reviewing the motion to dismiss, the Court has taken all well pleaded facts as true and limited its review to the allegations as set forth within the four (4) corners of Plaintiffs Complaint See One Call Prop. Servs. Inc. v. Security First Ins. Co, 165 So. 3d 749, 752 (Fla. 4th DCA 2015) Therefore, the Court cannot consider any allegations or other matters that were not alleged in the Plaintiff?s Complaint and the Court cannot consider the deposition testimony cited in Plaintiff?s Opposition because those matters are beyond the four (4) corners of his Complaint. As it relates to a motion to dismiss a complaint for declaratory relief, the Court is to consider whether the plaintiff is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor.? Royal Selections, Inc. v. Fla. Dept ofRevenue, 687 So.2d 893. 894 (Fla. DCA 1997). CLASS SIZE AMENDMENT The Class Size Amendment, Article IX, section 1 ofthe Florida Constitution was adopted in 2002 and provides as follows: To assure that children attending public schools obtain a high quality education, the legislature shall make adequate provision to ensure that, by the beginning of the 2010 school year, there are a suf?cient number of classrooms so that: (I) The maximum number ofstudents who are assigned to each teacher who is teaching in public school classrooms for prekindergarten through grade 3 does not exceed 18 students; (2) The maximum number of students who are assigned to each teacher who is teaching in public school classrooms for grades 4 through 8 does not exceed 22 students; and (3) The maximum number ofstudents who are assigned to each teacher who is teaching in public school classrooms for grades 9 through 12 does not exceed 25 students. The class size requirements of this subsection do not apply to extracurricular classes. Payment of the costs associated with reducing class size to meet these requirements is the responsibility of the state and not of local school districts. Beginning with the 2003-2004 fiscal year, the legislature shall provide su?icient funds to reduce the average number of students in each classroom by at least two students per year until the maximum number ofstudents per classroom does not exceed the requirements of this subsection. The Class Size Amendment does not have speci?c provisions for how the class size requirements would be implemented. Likewise, the Class Size Amendment does not de?ne ?public school classrooms? that are subject to the class size requirements and does not define ?extracurricular activities? that are exempt from the requirements. As set forth in the Class Size Amendment, the legislature shall make adequate provisions to ensure that there are a suf?cient number of classrooms so that the requirements are met. The only reference to local school districts in the Class Size Amendment is the provision that states that the payment of the costs associated with reducing class size to meet the requirements is the responsibility of the state and not of local school districts. After the Class Size Amendment was adopted, the Legislature starting in 2003 amended existing statutes and enacted statutes to address the following: de?nition of key terms related to the Class Size Amendment, implementation of the Class Size Amendment?s requirements and accountability measures. Section 1003.01, RS. defined the terms ?core-curricula courses? and ?extracurricular courses? which are key terms related to which classes are subject to the class size requirements. Section 1003.03, PS. establishes class size maximums, provides implementation and accountability measures, establishes the timing of when the class size maximums are to be satis?ed and provides for ?exibility allowances for the class size requirements. Section 1002.31, F.S. addresses the class size calculation for compliance with maximum class size for ?public schools of choice? as the average number of students at the school level. ANALYSIS I. The Court finds that Plaintiff does not have a legal right to pursue a private cause of action against the School Board for alleged violations of the Class Size Amendment based upon the expressed language set forth in the Class Size Amendment. Based upon the expressed language set forth in the Class Amendment, the Court finds that the Class Size Amendment does not confer a private cause of action against a district school board based upon its plain text. The Fifth District Court of Appeal?s opinion in Simon v. Celebration Co, 883 So.2d 826 (Fla. 5th DCA 2004) and the First District Court of Appeal?s opinion in School Board ofMiami-Dade County 12. King, 940 So.2d 593 (Fla. 1SI DCA 2006) are particularly instructive on this issue. In Simon, the Fifth District Court of Appeal affirmed the trial court's ruling that no private cause of action exists for the enforcement of Article IX, section 1 against individual school boards. The Simon court explained that Article IX, section I speci?cally states that the provision of an adequate education must be made by the Legislature since the section states that adequate provision shall be made by law.? Simon v. Celebration Co. at 831. The First District Court of Appeal in School Board of Miami-Dade County v. King narrowly construed Simon ?s holding to be that no private cause of action exists for the enforcement of Article IX, section 1, against individual school boards because Article IX, section I specifically states that the provision of an adequate education must be made by the Legislature since the provision states that adequate provision shall be made by law. The Class Size Amendment provision in Article IX, section I was not at issue in the Simon and King cases; however, the Class Size Amendment provision is similar to the provision that was at issue in Simon and King because the Class Size Amendment only expressly imposes obligations on the state and not on district school boards. The Court notes that the Class Size Amendment is not a stand-alone provision in the Florida Constitution; rather, it is incorporated into section 1 of Article IX. Therefore, this trial court should reach the same conclusion as the appellate courts did in Simon and King. Plaintiff relies upon Haridopolos v. Strong Schoois, Inc, 81 So.3d 465 (Fla. 1SI DCA 2011); however, Haridopoios is distinguishable from the instant case. The focus of the HaridOpolos court?s analysis is on whether there is a right to take review of an order denying a motion to dismiss by filing a petition for writ of prohibition. The Haridopolos defendants in that declaratory action did not include a local district school board. Furthermore, the First District Court of Appeal in Haridopolos did not hold or suggest that a local district school board would be an appropriate defendant in a suit to enforce Article IX, section Since the Court has found that based upon its plain text, the Class Size Amendment does not confer a private cause of action against a district school board. the Court does not reach the issue of whether the Class Size Amendment is self?executing. II. The Court ?nds that Plaintiff has not suf?ciently pled a claim for declaratory relief with respect to the statutes relating to class size. In opposition, Plaintiff asserts that Plaintiff may challenge the constitutionality of Section 1002.13, however, the Court?s review for purposes ofthe motion to dismiss is restricted to the four (4) corners of Plaintiff?s complaint. Plaintiff?s complaint does not expressly reference nor assert that Section 1002.13, F.S. is unconstitutional. In addition, Plaintiff's Complaint does not demonstrate that Plaintiff has complied with the procedural requirements that are required to 6 make a claim that a state statute is unconstitutional. See Section 86.091, PS. (2016) Fla. R. Civ. P. 1.071. Plaintiff?s Complaint alleges that the School Board arbitrarily designated Addison Mizner Elementary School as a public school of choice and that the school does not meet the statutory definition of a public school of choice. The allegations in Plaintiffs Complaint are conclusory and do not set forth ultimate facts to demonstrate why Addison Mizner Elementary School does not constitute a public school of choice or why the School Board?s public school of choice designation of Addison Mizner was arbitrary. Again, the Court?s review is restricted to the four (4) corners of the Complaint; the Court cannot consider factual allegations not set forth in the Complaint. The Court finds that Plaintiff has failed to sufficiently plead a claim for declaratory relief relating to whether Addison Mizner Elementary School is a public school of choice. Therefore, the Court grants the motion to dismiss without prejudice and with leave to amend. Plaintiff?s Complaint fails to set forth suf?cient allegations to demonstrate that Plaintiff has standing to seek district or county wide relief. Plaintiffseeks district or county wide relief. In particular, Plaintiff?s Complaint?s requests that the Court enter an order requiring the re-count of the class sizes for all elementary schools in Palm Beach County and requiring the School Board to provide sufficient teachers to bring all elementary schools into compliance with the constitutional class size limits. The School Board acknowledges that Plaintiff would have standing to seek declaratory relief about whether Addison Mizner Elementary School is a public school of choice under Section 1002.3], F.S.. However, Plaintiff?s Complaint does not allege sufficient facts to demonstrate that Plaintiff has standing to seek relief across the district. IV. Conclusion Based upon the foregoing ?ndings and conclusions, it is ORDERED that Defendant?s Motion to Dismiss is GRANTED w/o prejudice. Plaintiff shall have leave to amend Plaintiff?s Complaint w/in 20 days ofthe herein order. DONE and ORDERED in West Palm Beach, Palm Beach County, Florida, this l3 day MW LISA SMALL CIRCUIT COURT JUDGE Copies furnished: Paul Kunz, Esq, Plaintiff 1998 Juana Road, Boca Raton, FL 33486 paul@bandervisa.00m Shawntoyia N. Bernard, Esq., Counsel for School Board of Palm Beach County Sean Fahey, Esq, Counsel for School Board of Palm Beach County 3300 Forest Hill Boulevard, West Palm Beach, FL 33406