STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1846

)

VINCENT DUDLEY NEALY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 10, 1984, in Coral Gables, Florida.

Petitioner School Board of Dade County was represented by Mark A. Valentine, Esquire, Miami, Florida, and respondent, Vincent Dudley Nealy was represented by his mother, Louise Diane Nealy, Miami, Florida.

By letter dated April 13, 1984, petitioner advised respondent's parents that respondent was being administratively assigned to an educational alternative program, and respondent timely requested a formal hearing on that determination. Accordingly, the issue for determination is whether respondent should be assigned to an alternative school program.

Petitioner presented no witnesses and no exhibits. Louise Diane Nealy, Greg Rounds and the respondent testified on the respondent's behalf.

FINDINGS OF FACT

1. The parties stipulated that in February, 1984, while respondent was a student in the ninth grade at Westview Junior High School he punched another student in the face. As a result, respondent was required to serve a five day suspension. As a result of respondent's discussions with his mother concerning the incident, respondent wrote a letter of apology to the other student.

   
   

2. The parties further stipulated that in March, 1984, while respondent was a student in the same school, he was involved in a fight. As a result, he was required to serve a ten day suspension. Although petitioner's attorney argued at the formal hearing that the March incident involved some type of "aggravated assault" and/or inciting to riot," petitioner failed to introduce any evidence in support of that argument or even regarding the incident itself. On the other hand, the evidence is uncontroverted that no charges were filed against respondent and no involvement with the juvenile justice system followed the March, 1984.

3. On April 13, 1984, petitioner administratively reassigned respondent to Miami Douglas MacArthur Senior High School - North. The parties stipulated at the time of the Final Hearing in this cause that respondent's overall grades and conduct have been satisfactory throughout respondent's attendance at Miami Douglas MacArthur Senior High School - North.

   
   

4. For the last one and a half years respondent has been voluntarily participating in a private community youth guidance program. Although that program accepts some court referrals, respondent was not referred by the courts, is a continuous participant in the program, and can remain in the program for two more years until he reaches the age of 18. Respondent attends activities conducted by that program once a week after school. His counselor, Greg Rounds, believes respondent to be a quiet person who does not belong in an alternative program school and who is more likely to become and remain rehabilitated if returned to the regular school program.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

1. Section 230.2315(3), Florida Statutes, authorizes each district school board to establish educational alternative programs. Pursuant to that authorization, the Department of Education of the State of Florida has established definitions of educational alternative programs and criteria for eligibility in those programs. Section 6A-1.994, Florida Administrative Code.

   
   

2. Although petitioner argues that respondent should be placed in an educational alternative program, no evidence was presented or argument made as to which criteria would require that determination. Rather, petitioner simply argues that respondent is guilty of continuous disruptive behavior and that petitioner has a policy which requires a student to serve one complete semester at an educational alternative school before he can be returned to the regular school program. As to petitioner's first argument, two incidents without any factual basis describing those incidents, respondent's role in those incidents, or whether respondent was an aggressor or defender in either one of those incidents does not form any basis from which a conclusion can be drawn that respondent has a continuous pattern of disruptive behavior. Accordingly, petitioner has failed to meet its burden of proving that respondent meets any criteria for placement in an educational alternative program. As to petitioner's second argument, which concerns retention in an educational alternative program, no evidence was presented as to the source of petitioner's "policy" or preference that a student remain in such a program for one entire semester. Since no statutory or rule authority was cited in support of petitioner's policy, petitioner could rely on such policy only if a record foundation for it had been established. No evidence was presented in support of such a policy. Rather, the parties stipulated that both respondent's grades and conduct in the educational alternative program have been satisfactory. Accordingly, even if petitioner had proven that respondent was properly placed in the alternative program, petitioner has failed to prove any basis for retaining respondent in that program.

RECOMMENDATION

Based upon the foregoing findings of fact and the conclusions of law, it is, therefore,

RECOMMENDED THAT a Final Order be entered returning respondent to the regular school program and reversing the determination that respondent be placed or retained in an educational alternative program.

DONE and RECOMMENDED this 23rd day of August, 1984, in Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984.

COPIES FURNISHED:

Mark A. Valentine, Esquire 3000 Executive Plaza,

Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Mr. James Nealy

12315 North West 18th Place, Apt. #B

Miami, Florida 33167

Docket for Case No: 84-001846

Orders for Case No: 84-001846