STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4161

)

ALFRED B. TORRES, )

)

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 December 17, 1987, in Miami, Florida.

Petitioner School Board of Dade County was represented by Frank R. Harder, Esquire, Miami, Florida; and Respondent Alfred B. Torres and his parents did not appear and were not represented.

Petitioner advised Respondent that he was being administratively assigned to J.R.E. Lee, an opportunity school program, and his mother Dagmar Torres requested a formal hearing on that reassignment. Accordingly, the issue for determination is whether Respondent should be administratively assigned to

1. Lee.

   
   

   Petitioner presented the testimony of Rick M. Castillo; John E. Shelden; Claude I. Chipley, Jr.; Peter Hoffman, and William Krupczak. Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence.

   
   

   FINDINGS OF FACT

   
   

   1. During the 1985-86 school year Respondent Alfred B. Torres was a student in the sixth grade at Redland Junior High School.

      
      

   2. On October 31, 1985, a Student Case Management Referral Form was processed by Respondent's homeroom teacher because of Respondent's continuous disrespectful and derogatory comments to the teacher, his constant talking during that time period, his persistent antagonizing of other students, and his persistent late arrival to homeroom. Respondent's mother had been contacted regarding that behavior only ten days previous.

      
      

   3. On January 15, 1986, Respondent's homeroom teacher again processed a Student Case Management Referral Form since Respondent was being disrespectful to the teacher, was refusing to sit in his seat, was fighting with another student, and continued to talk throughout the homeroom period. This time Respondent was suspended.

   4. On March 11, 1986, Respondent's homeroom teacher again referred Respondent to the Assistant Principal for the same kind of behavior, i.e., being disruptive throughout the homeroom period. Respondent was suspended for one day, and his mother was contacted.

      
      

   5. On May 7, 1986, Respondent was again suspended, this time for three days, for being disruptive and disrespectful in homeroom. His mother was again contacted.

      
      

   6. On September 15, 1986, Respondent's social studies teacher referred him to a counselor for refusing to work and refusing to bring books to class. She reported that such refusals were a daily occurrence as was Respondent's daily disruption of the class and constant talking. Respondent was given a warning.

      
      

   7. On December 10, 1986, Respondent's vocational education teacher processed a Student Case Management Referral Form regarding Respondent. That referral was based upon Respondent's constant talking in manufacturing class, his horseplay and running around the room during that class, his continual disruption of the class, and his refusal to do the work assigned to him. Additionally, Respondent was instructed by that teacher to take the referral form to the Assistant Principal and report to the office. Respondent refused to report to the office and to give the referral form to the Assistant Principal but rather went to the physical education field instead. He was brought back to his classroom by another teacher but continued to refuse to go to the office. Respondent's vocational education teacher reported that in addition to the Respondent causing problems within the class by his failure to follow either class or school rules and his disrespectful conduct toward his instructor, Respondent had also attempted to have another student's project graded as Respondent's own project. That teacher had requested Respondent's mother to come to the school to confer regarding her son on several occasions, but the mother refused to do so. Respondent was suspended for one day.

      
      

   8. On February 23, 1987, Respondent was again referred to the Principal's office for being quite noisy during his first period class, for refusing to remain in his seat, and for failing to respond to the teacher. Respondent was given "work detail" during the first period class time.

      
      

   9. On May 5, 1987, Respondent's brother started a fight with another student. Respondent rushed over and kicked the boy his brother was fighting with extremely hard in the head. When the Assistant Principal tried to intervene, Respondent told him to "fuck off." Respondent was suspended for ten days for the battery he committed.

      
      

   10. During the 1986-87 school year Respondent was absent 51 days out of the 180-day school year. He received passing grades in two of his classes and failed five classes. His effort grades in those classes primarily reflect no effort being exerted by Respondent in most of his classes most of the time.

       
       

   11. Respondent was evaluated on November 9, 1987, by the school psychologist as part of a multi-disciplinary team report. The psychologist's conclusion is that Respondent is unwilling to accept any responsibility for his behavior and that Respondent suffers from an attention deficit disorder. The school psychologist's opinion, as well as the opinion of Respondent's Assistant Principal, is that Respondent would be better served by the opportunity school's increased structure. The visiting teacher's report indicates that Respondent's

       mother admits that she has trouble controlling Respondent's behavior, and it was recommended that she obtain professional assistance in learning to control Respondent's behavior at home.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. Petitioner's correspondence in this cause indicates that Petitioner is relying in this matter on section 230.2315, Florida Statutes. However, that statute was repealed effective August 15, 1987.

       
       

   14. Section 230.2316, Florida Statutes, is entitled the "Dropout Prevention Act," and provides that school districts may establish special programs which are subject to prior approval by the Commissioner of Education and which are subject to rules adopted by the State Board of Education. One of those types of programs--educational alternatives programs--are similar to the educational alternative programs previously allowed by section 230.2315, Florida Statutes, but are now voluntary programs only. Section 230.2316(4)(d), Florida Statutes, allows for the establishment, after approval has been properly obtained, of disciplinary programs for students meeting the following criteria:

       
       

       1. The student has a history of disruptive behavior in school or has committed an offense which warrants suspension or expulsion from school according to the district code of student conduct. For the purposes of this program, 'disruptive behavior' is behavior which:

          1. Interferes with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide or results in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the classroom; or

          2. Severely threatens the general welfare of students or others with whom the student comes into contact.

Petitioner has met its burden of proving that Respondent has a history of disruptive behavior and that Respondent is in need of an educational program which can better fulfill his need for specialized attention than the traditional program.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered assigning Respondent Alfred B. Torres to the opportunity school program at J.R.E. Lee until such time as his performance reveals that he can be returned to the regular school program.

DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida.

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

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988.

COPIES FURNISHED:

DR. JOSEPH A. FERNANDEZ

SCHOOL BOARD ADMINISTRATION BUILDING 1450 NORTHEAST SECOND AVENUE

MIAMI, FLORIDA 33132

FRANK R. HARDER, ESQUIRE

175 FONTAINEBLEAU BOULEVARD SUITE 2A-3

MIAMI, FLORIDA 33172

DAGMAR TORRES

15276 S.W. 104TH STREET, APT. 828

MIAMI, FLORIDA 33186

MADELYN P. SCHERE, ESQUIRE

SCHOOL BOARD ADMINISTRATION BUILDING 1450 NORTHEAST SECOND AVENUE

MIAMI, FLORIDA 33132

PHYLLIS O. DOUGLAS, ESQUIRE

SCHOOL BOARD ADMINISTRATION BUILDING 1450 NORTHEAST SECOND AVENUE

MIAMI, FLORIDA 33132

Docket for Case No: 87-004161

Orders for Case No: 87-004161