STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3072

)

ALEXANDRO ALFONSO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by and through its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 12, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Mark A. Valentine, Esquire

3000 Executive Building

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137

For Respondent: Paul Alfonso and

Alexandro Alfonso 4315 West 2nd Avenue

Hialeah, Florida 33012

On November 30, 1981, Petitioner, School Board of Dade County, Florida ("Petitioner"), received from Paul Alfonso the father of Alexandro Alfonso ("the student"), a request for hearing on Petitioner's decision to remove the student from H. H. Filer Junior High School and transfer him to Jan Mann Opportunity School North, an alternative school placement. By letter dated December 1, 1981, Petitioner forwarded the hearing request to the Division of Administrative Hearings, and requested the assignment of a Hearing Officer to conduct the formal hearing in this cause.

The final hearing was scheduled for May 12, 1982, by Amended Notice of Hearing dated Nov 4 1982. At the final hearing, Petitioner called Elliott Berman and Ivan Martinez as its witnesses. Petitioner offered Petitioner's Exhibit 1, which was received into evidence. The student testified in his own behalf, and offered no exhibits for inclusion in the record.

FINDINGS OF FACT

1. During the 1981-82 school year the student was enrolled as a seventh grade student at H. H. Filer Junior High School in Dade County, Florida. On October 21, 1981, the student left his home carrying a knife, with the intention of not attending classes on that day. The student met his girl friend and a

   friend, Ivan Martinez, at a cafeteria adjacent to the campus of H. H. Filer Junior High School. Upon learning that his girl friend intended to attend classes that day, the student, while still off campus, gave the knife to Ivan Martinez to keep for him, with the understanding that Martinez would not attend classes that day. Thereafter, Martinez decided to go to class, and gave the knife to Eddie Hidalgo to keep. Hidalgo then decided to attend class also, where he was discovered by a teacher in possession of the aforementioned knife.

   
   

2. Hidalgo was sent to the principal's office after the knife had been discovered and, during questioning by the principal, implicated the Respondent. Although the Respondent admitted to the principal that the knife belonged to him, he denied having the knife on his person on the school grounds. However, the student was suspended for ten days and, on November 20, 1981, was administratively assigned to Jan Mann Opportunity School North.

   
   

3. While serving his ten-day suspension as a result of the knife incident, the Respondent was charged with trespassing on the campus of H. H. Filer Junior High School. There is no evidence in the record of this proceeding concerning either the facts surrounding or the disposition of this trespass charge or several other trespass charges which occurred after Respondent had been administratively assigned to Jan Mann Opportunity School North and which are, therefore, immaterial to the issues involved in this proceeding. Petitioner called the principal at H. H. Filer Junior High School as its only witness in this proceeding. The principal had no direct knowledge of any incidents of disruptive behavior engaged in by the Respondent prior to the date of his assignment to Jan Mann Opportunity School North. None of the students' records were produced at final hearing, nor were any teachers or other witnesses who might have direct knowledge of any incidents of disruptive behavior called to testify. The principal testified generally about the student's excessive rate of absences during the 1980-81 school year, and noted poor conduct grades for the student during that same period. Indeed, these earlier incidents appear not to have had any effect on the decision to seek the student's reassignment for, when questioned about whether the student had the above-described knife in his possession on campus the principal testified ". . . there was evidence . .

   . to indicate that the knife was in his possession on school grounds, or we would not have made the recommendation based on what we made the recommendation on." It therefore appears that the sole triggering cause for seeking Respondent's reassignment to Jan Mann Opportunity School North was the allegation that he possessed a knife while on school property.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 230.2315, Florida Statutes, establishes educational alternative programs which are designed ". . . to meet the needs of students who are disruptive or unsuccessful in a normal school environment . . ." Section 230.2315(2), Florida Statutes. Section 230.2315(1), Florida Statutes, provides that " . . . [i]t is further the intent of the Legislature that such alternatives be positive rather than punitive and emphasize each student's abilities in order to ensure the full realization of the potential of such student." Section 230.2315(4), Florida Statutes, provides that ". . . a

   student may be eligible for an educational alternative program if the student is disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement tests, scores, referrals for suspension or other disciplinary action, and rate of absence."

   
   

6. Petitioner in this proceeding seeks the reassignment of Respondent to Jan Mann Opportunity School North on the grounds that he meets established criteria for "disruptive" students. Rule 6A-1.994(2)(a) defines a disruptive student as one who:

   
   

   1. Displays persistent behavior which 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

   2. Displays consistent behavior resulting 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

   3. Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population; or

   4. Has a juvenile justice record and is placed in any youth services resi- dential or day program of the Department of Health and Rehabilitative Services.

      
      

7. Evidence of record in this proceeding fails to support Petitioner's assignment of the student to Jan Mann Opportunity School North. The student's rate of absences during the 1980-81 school year obviously was not sufficient, in and of themselves, to prompt Petitioner to seek such a reassignment. The precipitating factor resulting in the student's reassignment was the incident involving the knife which occurred on October 21, 1981, in which Petitioner's personnel apparently were convinced that the student had possessed the knife on school grounds. Based upon the foregoing Findings of Fact, it is specifically concluded that Respondent did not, in fact, have possession of the knife on school grounds, and that the primary reason for the petitioner seeking the student's reassignment was without basis in fact. It is, therefore,

RECOMMENDED that a final order be entered by the School Board of Dade County, Florida, reassigning the student from Jan Mann Opportunity School North to an appropriate regular school program.

DONE and ORDERED this 25th day of June, 1982, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1982.

COPIES FURNISHED:

Mark A. Valentine, Esquire

Suite 300, 3000 Executive Building

3050 Biscayne Boulevard

Miami, Florida 33137

Paul Alfonso Alexandro Alfonso 4315 West 2nd Avenue

Hialeah, Florida 33012

Dr. Leonard M. Britton Superintendent of Schools

Dade County

Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 81-003072

Orders for Case No: 81-003072