STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3748

) CLARA PATINO o/b/o ANDRES PATINO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on October 27, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Frank Harder, Esquire

175 Fontainebleau Boulevard, Suite 2A-3 Miami, Florida 33172

For Respondent: No appearance

BACKGROUND

By letter dated June 16, 1988, Petitioner advised Respondent's mother that Respondent, in lieu of expulsion from school, was being administratively assigned to the Opportunity School Program as a result of Respondent's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The assignment was effective upon receipt of the letter. Respondent's mother requested a formal administrative hearing on the issue of whether Respondent should be assigned to the opportunity school.

At hearing, Petitioner presented the testimony of two witnesses and three evidentiary exhibits. Petitioner waived filing of proposed findings of fact. Respondent did not timely submit proposed findings of fact and none had been received by the undersigned at the time of preparation of this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent was a 6th grade student at Mays Middle School in Dade County, Florida, during the 1987-88 school year. On June 14, 1988, another student informed the school's assistant principal that Respondent had in his possession a quantity of marijuana. Respondent was brought to the assistant

   principal. In the course of interrogating Respondent, the assistant principal momentarily left Respondent in the custody of a security officer. Upon returning to the room, the principal learned that Respondent had attempted to discard a foil packet, behind a filing cabinet. The packet was subsequently analyzed and found to contain one quarter to one half of an ounce of marijuana.

   
   

2. Upon further questioning by the assistant principal, Respondent contended that he had found the contraband packet on the way to school and intended to sell the drug since his family needed the money. Thereupon, Respondent was suspended for the remaining two days of the school year and reassigned to the opportunity school program for the 1988-89 school year.

   
   

3. In response to a telephone call by school administrators, Respondent's mother came to the school when he was apprehended for the possession of marijuana. Somewhat distraught about the incident, her major concern was what action would be taken in response to this behavior by her son. Previous conversations had been had between school officials and Respondent's mother regarding his attendance record and academic problems during the school year.

   
   

4. The entire incident of Respondent's apprehension for possession of a controlled substance was reported to law enforcement officials for further investigation and appropriate legal action.

   
   

5. During the course of the school year, Respondent has been absent a total of 36 days. His academic progress has been extremely poor resulting in final grades for the year of "F" in language arts, "D" in mathematics, "D" in French, "F" in reading and "F" in science.

   
   

6. During the course of the school year, Respondent was seen by the school counselor a total of 12 times. Several of the counselling sessions were the result of Respondent's referral by his teachers for disruptive behavior. Other sessions resulted from teachers concern about Respondent's academic progress.

   
   

7. Possible remedies for Respondent's academic needs and attendance problems are more likely to be realized in the smaller and more structured educational atmosphere of the opportunity school.

   
   

8. Petitioner's district code of student conduct contains recommended disciplinary action for students found in possession of illegal mood modifiers. Mood modifiers are defined in the district code to mean all substances capable of producing a change in behavior or altering a state of mind or feeling. The code recommends that such students either be expelled or be suspended with a possible recommendation for administrative assignment to an opportunity school. In the absence of evidence other than Respondent's own admission of his intent to sell the marijuana, school officials elected to suspend Respondent and recommend assignment to an opportunity school.

   
   

9. Respondent is presently attending the J.R.E. Lee Opportunity School.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

11. Section 230.2316(4)(d), Florida Statutes, provides for disciplinary programs when "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."

    
    

12. As adduced at hearing, Petitioner's code of student conduct authorizes suspension and subsequent recommendation for assignment to opportunity school for the offense committed by the Respondent.

    
    

13. The proof establishes that Respondent's behavior required attention and assistance beyond that provided by the traditional program. Possession of a controlled substance in a school setting with the professed intent to sell that drug also may be detrimental to the educational process of other students. Such behavior constitutes "disruptive behavior" within the statutory definition of that term found in Section 230.2316(4)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assigning Respondent to the

J.R.E. Lee Opportunity School.

DONE AND ENTERED this 14th day of November, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 14th day of November, 1988.

COPIES FURNISHED:

Frank Harder, Esquire

175 Fontainebleau Boulevard Suite 2A-3

Miami, Florida 33172

Clara Patino

19316 South West 121st Avenue Miami, Florida 33177

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney H. McKenzie, Esquire General Counsel

Department of Education Knott Building Tallahassee, Florida 32399

Dr. Josesph A. Fernandez Superintendent of Schools Dade County Public School 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 88-003748

Orders for Case No: 88-003748