STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner. )

)

vs. ) CASE NO. 86-0298

)

MARCOS SAMUEL BANOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Noticed this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 17, 1986, in Miami, Florida. The Parties completed their posthearing submissions on April 15, 1986.

Petitioner School Board of Dade County was represented by Frank R. Harder, Esquire, Miami, Florida, and the Respondent Marcos Samuel Banos was represented by James M. Ratliff, Esquire, Miami, Florida.

By letter dated November 22, 1985, Petitioner notified Respondent's parents that Respondent was being administratively assigned to Jan Mann Opportunity School-North and his parents requested a hearing regarding that assignment.

Petitioner presented the testimony of Sharon Fenner, Benjamin Addison, Randy Jones, Stanley Dolega, and Ronald Ferraro. Respondent testified on his own behalf and presented the testimony of Xiomara Banos, Julia Durgo, and Mary Verine. Additionally, Petitioner's Exhibits numbered 1-13 and Respondent's Exhibit numbered l were admitted in evidence.

Only the Respondent submitted proposed findings of fact in the form of a proposed recommended order. Respondent's proposed finding of fact numbered l has been rejected as being contrary to the evidence. Respondent's proposed finding of fact numbered 2 has been adopted. Respondent's proposed findings of fact numbered 3-32 have been rejected as being irrelevant.

FINDINGS OF FACT

1. Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School.

   
   

2. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement.

3. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed.

   
   

4. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing."

   
   

5. Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system.

   
   

6. Respondent was born on August 14, 1970.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 230.2315, Florida Statutes, establishes educational alternative programs and provides, inter alia, as follows:

(5) REVIEW OF PLACEMENT.--The parents or guardians of a student shall be entitled to an administrative review of any action by school district personnel relating to Placement of the student in an alternative program, pursuant to the provisions of chapter 120. . .

Chapter 120, Florida statutes, inter alia, sets forth the procedures to be utilized in both formal and informal proceedings in which the substantial interests of a party is determined by an agency. When Respondent and his parents determined that he would no longer be a student anywhere, they waived any right to review available to them Pursuant to either Chapter 120 or Section 230.2315. Not only is Respondent no longer substantially affected by the school to which he is assigned, it is clear that the outcome of this proceeding will have no affect at all on Respondent's conduct or attendance. Further, Respondent will be 16 years of age before the beginning of the next school year and no longer regulated by any compulsory attendance laws. Since the issue between Petitioner and Respondent became moot when Respondent ceased attending school in the Dade County school system, there is no longer any case or controversy between the parties, and the Division of Administrative Hearings no longer has jurisdiction to review Respondent's placement in an alternative program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction.

DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida.

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

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 486-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986.

COPIES FURNISHED:

Frank R. Harder Esquire 2780 Galloway Road

Suite 100

Twin Oaks Building Miami Florida 33165

James M. Ratliff Esquire Legal Services of Greater

Miami, Inc.

Northside Shopping Center

149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami Florida 33132

Docket for Case No: 86-000298

Orders for Case No: 86-000298