STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

vs. ) CASE NO. 90-3940

)

MAIKEL ALVAREZ, )

)

Respondent. )

)

) DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

vs. ) CASE NO. 90-3941

)

MICHEL ALVAREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated cases on September 25, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Patricia D. Bass, Esquire

1450 Northeast Second Avenue, Suite 301 Miami, Florida

FOR RESPONDENT: Marcia B. Caballero, Esquire

Haymes & Merrill

848 Brickell Avenue, 12th Floor Miami, Florida 33131-2943

STATEMENT OF THE ISSUES

The issue in this case is whether the two Respondents, or either of them, should be assigned to the Petitioner's school program.

PRELIMINARY STATEMENT

At hearing, Petitioner presented the testimony of six witnesses, offered seven exhibits into evidence, and requested official recognition of Section 230.2316, Florida Statutes, (Petitioner's pre-marked Exhibit 5) and School Board Rule 6Gx13-5D-1.08. Official recognition was taken of the Board Rule and the Florida Statute. Petitioner's pre-marked Exhibits Composite 6, school records of Michel Alvarez, and Composite 7, student records of Maikel Alvarez, were

received into evidence. Not accepted into evidence were Petitioner's pre-marked Exhibits 1-3, written statements by Michel Alvarez, Maikel Alvarez, and Benny Rodriquez. Respondents presented the testimony of Maikel Alvarez and his mother. Respondents did not offer any exhibits into evidence.

At the close of the hearing, the Hearing Officer advised the parties that post-hearing submittals had to be postmarked no later than 15 days following the hearing date if no transcript was to be ordered. If the parties desired a transcript, the Hearing Officer extended the date of post-hearing submittals to

15 days following the receipt of the transcript by the Division of Administrative Hearings. The parties submitted proposed recommended orders. Rulings on proposed findings of fact are made in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. During the 1989/90 school year, Michel Alvarez and his brother, Maikel Alvarez, were both students at American Senior High School in Dade County, Florida. Michel was in the ninth grade and Maikel was in the tenth grade. During the 1989/90 school year, Michel and Maikel Alvarez were students in the industrial arts class of a teacher named Morton Bernstein.

   
   

2. On May 1, 1990, during the change of classes after second period, Michel Alvarez approached another student in his second period industrial arts class, Benny Rodriguez, and asked why the latter had been pointing at him. A verbal dispute ensued as to whether there had been any pointing and, if so, what anyone was going to do about it. Thereupon, Michel tackled Benny around the waist with enough force to knock Benny to the floor. Both boys fell to the floor, Benny beneath on his back, Michel above, facing Benny and holding onto him. They struggled on the ground. As they struggled, a large crowd of other students quickly gathered. During the course of the struggle, Benny Rodriguez was kicked or stomped several times. As a result of the blows he received during the struggle, Benny Rodriguez suffered a broken nose and several bruised ribs. 1/

   
   

3. Maikel Alvarez was nearby when he was informed that his brother was in trouble. Maikel pushed his way through the crowd and worked his way towards the middle. Maikel pulled his brother off of Benny Rodriguez and Maikel and Michel Alvarez moved away from the crowd of students. Maikel and Michel Alvarez both went to their respective third period classes. During third period, both of them were called to the Principal's office.

   
   

4. At about the same time that Maikel Alvarez went to help his brother, a teacher named Morton Bernstein became aware of the crowd and the struggle and went to break it up. When Bernstein got to the scene of the fracas, the struggle was over and Benny Rodriguez was on the floor, obviously injured. Bernstein assisted Benny and called the school security office. A school security officer accompanied Benny to the main office.

   
   

5. Donald Hoecherl, an assistant principal, was present when the security officer brought Benny to the office. Hoecherl put Benny in a room and asked if he was okay. Benny was still bleeding but was coherent. Hoecherl questioned Benny to find out what happened. He then summoned Michel and Maikel to the office where he questioned them. He also called the parents of the students involved, the police, and the school's special investigative unit.

6. Hoecherl had the students write down what happened after they had given him a verbal account. Benny was released to his parent. He was taken to his doctor who then sent him to the hospital. He remained hospitalized for two days and had an operation for the fracture to his nose.

   
   

7. Mrs. Alvarez arrived and Hoecherl explained, through an interpreter, what had happened based on the account he had gotten from Bernstein and the students. During the discussion with Mrs. Alvarez and her sons, Maikel appeared to have a poor attitude and he did not appear to be taking what had happened seriously. Mrs. Alvarez told Maikel to straighten up in his chair. She then slapped him. Maikel pushed his mother against the wall. Hoecherl and the police officer who had been called to the school had to restrain Maikel from further physical confrontation toward his mother. Maikel was placed in handcuffs.

   
   

8. Hoecherl told Mrs. Alvarez that he was suspending both Michel and Maikel for ten days and recommending an expulsion with a waiver to opportunity school. He made certain that School Board rules and procedures for according the Alvarezes their due process rights were followed.

   
   

9. Hoecherl prepared and mailed home the Notice of Suspension forms for Maikel and Michel which narrated the reasons for the disciplinary actions and the right to a school level hearing. Michel's Notice of Suspension form indicated that the suspension was for battery and kicking another student. Maikel's Notice of Suspension form indicated that the action was being taken for battery on a student and parent. Both forms indicated that these rule infractions were Group III violations. The School District's Code of Student Conduct provides that Group III violations warrant expulsion from school.

   
   

10. Bernstein had both Michel and Maikel as students in his industrial arts classes. Michel required more attention than the rest of the students. Bernstein described Michel's behavior as disruptive of the regular program and also indicated that Michel's behavior created safety concerns because of the use of power tools in his class. Michel was not passing Bernstein's course because of excessive absences and poor effort.

    
    

11. Maikel did little or no work in Bernstein's class. He sat around and talked to friends and did not complete projects. His absences were excessive and he was not passing.

    
    

12. Carol McKenny taught Michel math. Michel was disruptive, absent excessively, and was making no effort. He required more attention than her other students, which made it difficult to teach. She talked to Michel and to Mrs. Alvarez about her concerns in an attempt to help him, yet this produced no noticeable improvements in his behavior, attendance, or effort.

    
    

13. James McKiernan taught Maikel biology. Maikel was failing this subject because he was making no effort and was frequently absent. McKiernan spoke with Maikel and Mrs Alvarez, but Maikel did not improve.

    
    

14. Henry Adams was Michel's and Maikel's guidance counselor. He talked to both students during the year in an attempt to help them. He discussed their chronic absences which were in excess of the state mandatory attendance requirements. He discussed the relationship of attendance to grades. He discussed their behavior in class. He talked to Mrs. Alvarez about their absences and poor progress in school. Adams, who is knowledgeable of the

    programs offered by the district's opportunity schools, is of the opinion that both students would benefit from such placement because of the smaller class sizes, more structured environment, and increased counseling services.

    
    

15. Hoecherl conducted a review of both students' school records files prior to making his final recommendation to the Assistant Superintendent for Alternative Education. His review included grade reports, ability test scores, discipline reports, and attendance information.

    
    

16. Michel has average ability and was capable of making B's and C's; however, he failed six of eight courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period.

    
    

17. Maikel has average to slightly below average ability, but was capable of average work in the courses he was taking; however, he failed seven of nine courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period.

    
    

18. Maikel had previously been suspended for five days for fighting. This was a Group III expellable offense. Maikel also had been assigned to several Saturday schools in an attempt to help him remediate the work he had missed when he cut classes on approximately 20 occasions. Saturday school is a District- approved method for helping a student improve his academic performance through a tutorial program.

    
    

19. American High School had provided both Michel and Maikel with a variety of student services, including counseling by Adams, Saturday school for Maikel, teacher conferences, and parental contact by the administration. Despite the school's efforts, both students were not successful in the regular program at American High School.

    
    

20. An opportunity school assignment would assist Michel and Maikel because it would provide greater structure, smaller class sizes and increased student services. This educational alternative program would afford both students an opportunity to become more successful in school.

    
    

21. Maikel is currently enrolled in the opportunity school. He is doing well in his classes and has improved his attendance.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1989).

    
    

23. A student may be assigned to an opportunity school program when the student has a history of disruptive behavior. Section 230.2316(4)(d), Florida Statutes (1989) (Dropout Prevention Act). The statute defines "disruptive behavior" 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.

       
       

24. The Dropout Prevention Act further provides that:

    
    

    Prior to assigning a student to a disciplinary program of more than 10 days duration, the district shall attempt a continuum of education and student services to identify the causes of the disruptive behavior, to modify the behavior, or to provide more appropriate educational services to the student; however a student who has committed an offense which warrants expulsion according to the district code of student conduct may be assigned to a disciplinary program without attempting a continuum of services. Sec. 230.2316(4)(d)4, Fla. Stat. (emphasis added)

    
    

25. The School Board's Code of Student Conduct is incorporated by reference in School Board Rule 6Gx13-5D-1.08.

    
    

26. The Code of Student Conduct defines battery on a student, a Group III violation, as: "The bodily harm of, or participation in an act which causes bodily harm to another student." (emphasis added)

    
    

27. A battery on a student is an expellable offense according to the Dade County School Board Code of Student Conduct which, therefore, allows a student to be placed in a disciplinary program without attempting a continuum of services.

    
    

28. The School Board has met its burden by a preponderance of the competent substantial evidence adduced at hearing that Michel Alvarez meets the criteria for assignment to an opportunity school through his participation in an act which caused serious bodily harm to Benny Rodriguez, his failure to adjust to the regular school program at American, as evidenced by his history of continuous disruptive behavior interfering with his own learning and the learning process of others, and requiring attention and assistance beyond that which American could provide.

    
    

29. Michel's acts of knocking down Benny Rodriguez and holding him down constitutes battery. The unauthorized absences and disruptive classroom behavior additionally constitute continuous disruptive behavior. These violations are expellable offenses according to the District's Code of Student Conduct, thereby obviating the need to provide a continuum of student services prior to an assignment to an opportunity school.

    
    

30. The School Board has met its burden by a preponderance of the competent substantial evidence adduced at hearing that Maikel Alvarez meets the criteria for eligibility to an opportunity school through his attack upon his mother on school grounds. Maikel further meets the criteria for eligibility because of his conflicts of a disruptive nature, including a fight for which he

    was suspended for five days immediately prior to the incident with his brother and Benny. That fight was also a Group III violation, another expellable offense.

    
    

31. Both the above offenses and Maikel's inability to adapt to the regular school program, as evidenced by failing grades and chronic unexcused absences, constitute continuous disruptive behavior, a Group V violation, an expellable offense. These expellable offenses obviate the need to provide a continuum of student services prior to assignment to an opportunity school.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Dade County School Board enter a Final Order in these consolidated cases concluding that Michel Alvarez and Maikel Alvarez are properly assigned to Douglas MacArthur Senior School-North, an opportunity school located in Dade County, Florida.

DONE AND ENTERED at Tallahassee, Leon County Florida, this 11th day of December, 1990.

MICHAEL M. PARRISH, 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 11th day of December, 1990.

ENDNOTE

1/ On the basis of the evidence received in this case, it cannot be said with any certainty who kicked or stomped Benny Rodriguez. It is, however, clear that Michel Alvarez knocked Benny to the ground and was holding him down while Benny was injured.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 90-3940 & 90-3941

The following are my specific rulings on all proposed findings of fact submitted by all of the parties.

Findings submitted by the Petitioner:

Paragraphs 1 and 2: Accepted in substance.

Paragraph 3: So much of this paragraph as suggests an inference that Mr. Bernstein saw the Respondents hitting or kicking Benny Rodriguez is rejected as not supported by competent substantial evidence and as inconsistent with the greater weight of the evidence in this case. Mr. Bernstein's view of

the attack on Benny Rodriguez was too obstructed by spectators for Mr. Bernstein to provide a reliable account of what transpired and his testimony about the attack appears to be more conjecture than fact. The rest of this paragraph is rejected as constituting subordinate and unnecessary details.

Paragraph 4: For the reasons explicated in the immediately preceding paragraph, the first three sentences of this paragraph are rejected as not supported by persuasive competent sybstantial evidence. The fourth sentence is rejected as subordinate and unnecessary details. The remainder is accepted in substance.

Paragraphs 5,6,7,8, and 9. Accepted in substance.

Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and

22: Accepted, with the correction of a few minor details.

Findings proposed by Respondents:

Paragraphs 1 and 2: Accepted.

Paragraphs 3, 4, 5, and 6: Rejected as not supported by persuasive competent substantial evidence.

Paragraph 7: First two sentences rejected as subordinate and unnecessary details. Last sentence rejected as not supported by competent substantial evidence.

Paragraph 8: Rejected as not supported by competent substantial evidence.

Paragraphs 9, 10, 11, 12, and 13: Accepted in substance.

Paragraph 14: First sentence accepted in substance. Second and third sentences rejected as subordinate and unnecessary details. Last sentence rejected as contrary to the greater weight of the evidence.

Paragraph 15: Rejected as subordinate and unnecessary details.

Paragraph 16: Accepted in substance, with some subordinate and unnecessary details omitted, some additional clarifying facts, and substitution of Maikel for Michel. Last sentence rejected as not supported by competent substantial evidence.

Paragraphs 17, 18, 19, 20 and 21: Rejected as subordinate and unnecessary details.

Paragraph 22: Rejected as not supported by competent substantial evidence.

Paragraph 23 and the several unnumbered paragraphs that follow it: Rejected as constituting a combination of summary of testimony and argument and not proposed findings of fact.

Paragraph 24: Rejected as constituting a combination of summary of testimony and argument, and not proposed findings of fact.

Paragraph 25 and the final unnumbered paragraph: Rejected because for the most part these

paragraphs are not supported by competent substantial evidence and, to the extent supported, they constitute subordinate and unnecessary details.

COPIES FURNISHED:

Patricia D. Bass, Esquire 1450 Northeast Second Avenue Suite 301

Miami, Florida

Marcia B. Caballero, Esquire Haymes & Merrill

848 Brickell Avenue, 12th Floor Miami, Florida 33131-2943

Paul W. Bell, Superintendent Dade County Schools

School Board Administration Building 1450 N.E. Second Avenue

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003940

Orders for Case No: 90-003940