STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0477

)

ADRIAN GARCIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 16, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134 For Respondent: No appearance

INTRODUCTION

By letter dated January 3, 1989, the parents of Adrian Garcia were notified by the Dade County School Board that their son had been assigned to the disciplinary program at Douglas MacArthur Senior High School because of his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The letter further advised Garcia's parents that they had the right to a hearing regarding this assignment. Mr. and Mrs. Garcia requested such a hearing. Thereafter, on January 27, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing the Garcias had requested.

On February 14, 1989, the undersigned issued a Notice of Hearing setting the case for hearing on March 16, 1989. A copy of the Notice of Hearing was mailed the same day it issued to the address given by the Garcias in their written request for hearing.

The hearing was held as scheduled on March 16, 1989. Petitioner appeared at hearing through its attorney. Although the Garcias were given notice of the hearing in accordance with Section 120.57(1)(b)21 Florida Statutes, they did not make an appearance either in person or through counsel or other representative. At hearing, Petitioner presented the testimony of five witnesses and offered ten exhibits into evidence. All ten exhibits were received into evidence.

On April 3, 1989, Petitioner filed a Proposed Recommended Order, which includes proposed findings of fact and conclusions of law. All of Petitioner's

proposed findings of fact have been incorporated in substance in this Recommended Order. No transcript of the March 16, 1989 hearing has been filed.

FINDINGS OF FACT

Based on the evidence adduced at hearing, the undersigned makes the following findings of fact:

1. Adrian Garcia attended Homestead Senior High School for the 1987-1988 school year and for approximately the first half of the 1988-1989 school year. Throughout his stay at the school he consistently engaged in disruptive conduct which interfered with his learning and the learning of the other students in his classes. His misbehavior was not confined to any one class or directed at any one particular teacher. Many of his teachers formally complained about Garcia by submitting to the administrators at the school written referrals describing Garcia's misdeeds.

   
   

2. Garcia's art teacher during the 1987-1988 school year, Susan Maguire, was one of the teachers whose ability to perform her teaching responsibilities suffered as a result of Garcia's antics. Fortunately for Maguire, Garcia skipped a number of her classes. When he did attend, however, he often arrived late without an excuse and created a disturbance that disrupted the lesson. Garcia was loud, used vulgar language and threw things while in class. He rarely did the work he was assigned. On one occasion in March, 1988, Garcia walked out of class without permission while Maguire was teaching and visited a nearby classroom. When Maguire confronted Garcia regarding the incident, Garcia told her that he could go where he pleased.

   
   

3. Monte Libert, Garcia's industrial arts teacher during the first half of the 1988-1989 school years, experienced similar problems with Garcia. On more than one occasion, Garcia left the classroom without permission during the middle of a lesson. He yelled and screamed in class and hurled profanities at Libert in front of the other students. On one occasion, he vandalized school property by sawing off a leg on one of the stools in the classroom. Of greatest concern to Libert was Garcia's throwing of objects at other students while they were working on their machines. This posed a very serious safety hazard.

   Libert gave Garcia failing grades, not only in conduct, but in effort and academic performance as well, inasmuch as he did little or no work on his assigned projects.

   
   

4. Paula Knight was Garcia's food service teacher. She too had to devote considerable time and energy to deal with Garcia's inappropriate conduct. While in her class, instead of listening to Knight or doing his assignment, Garcia would often tap his pencil loudly, tip his chair to make noise, make derogatory comments to other students, shout across the room, or engage in other misconduct which would make him the center of attention.

   
   

5. The proverbial "straw that broke the camel's back" was an incident that occurred in Knight's classroom on December 12, 1988. At the end of class that day, in front of his classmates, Garcia displayed a hunting knife, with a ten- inch blade, after removing it from its sheath. He had been carrying the knife and sheath in his book bag.

   
   

6. Knight, who had witnessed the display, reported the incident by written referral to Gregory Zawyer, the Assistant Principal. Zawyer investigated the matter and confirmed the accuracy of Knight's report after a school security guard retrieved the knife from Garcia.

7. Garcia was no stranger to Zawyer. In his capacity as Assistant Principal, he had received a number of prior referrals alleging misconduct on Garcia's part. Following each prior referral, he had met with Garcia. He had also conversed with his parents. As early as March, 1988, Zawyer had informed them that their son was a candidate for placement in an educational alternative program if his behavior did not improve. Unfortunately, notwithstanding the efforts of Zawyer and others at the school, there had been no discernible improvement in his conduct.

   
   

8. In accordance with Petitioner's Code of Student Conduct, if a student is in possession of, or displays, a weapon, such as a hunting knife, on school grounds, the school is required to expel the student. Accordingly, such action was taken against Garcia.

   
   

9. On January 3, 1989, the Superintendent of Schools rescinded the expulsion and assigned Garcia to the Opportunity School Program at Douglas MacArthur Senior High School-South.

   
   

   CONCLUSIONS OF LAW

   
   

10. A public school student may be assigned to a disciplinary program in lieu of a regular school program if 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." Section 230.2316(4)(d)1., Florida Statutes.

    
    

11. "Disruptive behavior" is defined in Section 230.2316(4)(d)1., Florida Statues, as 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 in contact.

       
       

12. Adrian Garcia had a history of "disruptive behavior," within the meaning of Section 230.2316(4)(d)1, Florida Statutes, at Homestead Senior High School which dated back to his arrival at the school at the beginning of the 1987- 1988 school year. School personnel patiently sought to help him adjust to the traditional program at the school. Their efforts, however, were to no avail. Garcia continued to regularly engage in unruly conduct which thwarted his learning and that of his classmates.

    
    

13. Garcia's final act of misconduct at the school was arguably the most egregious. In the presence of other students and his teacher, he displayed a large hunting knife while on school property. Doing so was contrary to Petitioner's Code of Student Conduct and punishable thereunder by expulsion.

    
    

14. Accordingly, inasmuch as Garcia had a history of "disruptive behavior" at Homestead Senior High School and, in addition, committed an offense

warranting his expulsion from the school pursuant to Petitioner's Code of Student Conduct, his assignment to the disciplinary program at Douglas MacArthur Senior High School-South should be upheld.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order approving Adrian Garcia's

assignment to the disciplinary program at Douglas MacArthur Senior High School-

South.

DONE and ENTERED this 18th day of April 1989, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April 1989.

COPIES FURNISHED:

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Mr. and Mrs. Arturo Garcia 25323 S.W. 127th Place Naranja, Florida 33032

Madelyn P. Schere, Esquire

School Board Administration Building 1450 N.E. Second Avenue

Miami, Florida 33132

Dr. Joseph A. Fernandez, Superintendent School Board Administration Building 1450 N.E. Second Avenue

Miami, Florida 33132

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 89-000477

Orders for Case No: 89-000477