STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1424

)

MR. AND MRS. NICHOLAS )

DILORENZO, parents, on behalf ) of NICHOLAS DILORENZO, )

)

Respondents. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Pompano Beach on July 25, 1984.

1/ The issue is whether petitioner, School Board of Palm Beach County, Florida, should expel Nicholas DiLorenzo from the Palm Beach County school system under Section 230.33(8)(c) , Florida Statutes (1983) and Rule 6Gx50-5.18(11), Florida Administrative Code.

FINDINGS OF FACT 2/

1. Respondent, Nicholas DiLorenzo, is a student in the Palm Beach County school system enrolled at Boca Raton Community High School during the 1983 - 1984 school year.

   
   

2. Respondent Nicholas DiLorenzo has a past history of misconduct and disruptive behavior within the Palm Beach County school system, as follows:

   
   

   1. On or about November 30, 1982, DiLorenzo was warned for disturbing class.

      
      

   2. On or about December 16, 1982, DiLorenzo was assigned to three days of campus clean-up for leaving class without permission.

      
      

   3. On or about January 12, 1983, DiLorenzo was given a three-day in- house suspension for disobeying an instructor.

      
      

   4. On or about May 22, 1983, DiLorenzo received a three-day suspension for leaving class without permission.

      
      

   5. On or about October 21, 1983, DiLorenzo was given a three-day suspension for fighting.

      
      

   6. On or about November 18, 1983, DiLorenzo was given two detentions for disturbing class.

      
      

   7. On or about November 21, 1983, DiLorenzo was given two more detentions for being late for class for the third time.

   8. On or about November 22, 1983, DiLorenzo was assigned five days of cafeteria clean-up for disobeying an instructor.

      
      

   9. On or about January 20, 1984, DiLorenzo was disciplined for smoking marijuana.

      
      

3. On or about February 16, 1984, three fellow students witnessed DiLorenzo in possession of marijuana. The witnesses saw DiLorenzo offer some of the marijuana to two fellow students in exchange for money and witnessed the exchange of the marijuana for money between DiLorenzo and one of the students.

   
   

4. One of the witnesses threatened to report DiLorenzo to his teacher. This led to an argument between the two, DiLorenzo's threats and an outburst or disturbance between the two. DiLorenzo's teacher sent him to the dean of students. The teacher was unaware at the time that marijuana was involved.

   
   

5. Later, when the student involved in the disturbance reported to the dean of students DiLorenzo's involvement in the marijuana sale, the dean of students called DiLoreozo to his office for questioning. During questioning, DiLorenzo surrendered a packet of marijuana which he removed from his sock. The School Board of Palm Beach County investigator then read DiLorenzo his Miranda rights, and DiLorenzo refused to talk any more about the subject. DiLorenzo was then delivered to the custody of the Boca Raton police department.

   
   

6. In response to the events of February 16, 1984, the assistant principal of Boca Raton Community High School recommended counseling for DiLorenzo.

   Later, the assistant principal became aware of DiLorenzo's record of previous discipline and suspended DiLorenzo for ten days for distribution of marijuana with intent to sell. The initial ten day suspension ended March 1, 1984, but DiLoreozo was suspended for an additional thirty-day period beginning March 2, 1984, and ending April 19, 1984. During this thirty-day suspension, proceedings to expel DiLorenzo began, and this proceeding followed.

   
   

   CONCLUSIONS OF LAW

   
   

7. Expulsion is the removal of the right and obligation of a student to attend a public school under conditions set by the School Board, and for a period of time not to exceed the remainder of the term or school year and one additional year of attendance. Section 228.041(26), Florida Statutes (1983).

   
   

8. The principal of a school or his designated representative may recommend to the superintendent of a school system the expulsion of any student who has committed a serious breach of conduct, including, but not limited to, willful disobedience, open defiance of authority of a member of his staff, violence against persons or property or any other act which substantially disrupts the orderly conduct of the school. Section 232.26(1)(c), Florida Statutes (1983).

   
   

9. The superintendent may then recommend expulsion to the School Board, setting forth the charges against the pupil and advising the pupil and his parents or guardian of his right to due process. Section 230.33(8)(c), Florida Statutes (1983).

10. Rule 6Gx50-5.18(1)(a), Florida Administrative Code, provides that possession, use, or sale of any mood modifying drug or substance, including alcohol, "shall be deemed by the board as serious misconduct and shall be subject to action by legal means including expulsion from school."

    
    

11. Rule 6Gx50-5.18(11)(a), Florida Administrative Code, provides that expulsion is appropriate when it is "justified to insure the safety of the student involved, to insure the safety of other students, and staff and to protect the students, the staff, volunteers and chaperons from assault and disruption."

    
    

12. Directive D-5.132 of the School Board of Palm Beach County provides that the second offense of possession of drugs shall be penalized by a ten-day suspension, plus up to a possible thirty-day suspension, and a possible recommendation for expulsion. It also provides that the first offense of distribution of drugs shall be penalized by a ten-day suspension plus up to a possible thirty day suspension, and a possible recommendation for expulsion. Those penalties, according to the Directive, are subject to being increased "based on quantity of the substance involved and past record of the individual."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Nicholas DiLorenzo be expelled from schools within the jurisdiction of the Palm Beach County school system through the 1984 - 1985 school year.

RECOMMENDED this 15 day of October, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 15th day of October, 1984.

ENDNOTES

1/ Shortly before the final hearing, petitioner's attorney telephoned the Hearing Officer to advise that respondents were withdrawing their request for hearing. However, after the Hearing Officer required that the withdrawal be put in writing, it was reported that the DiLorenzos still wanted to have a hearing. The final hearing therefore proceeded.

2/ The DiLorenzos stipulated to the facts alleged in support of expulsion. They only were requesting a hearing to the extent that they wanted to express their feeling that expulsion was too severe of a response to the facts.

Therefore, there actually was no need for a Hearing Officer from Tallahassee to conduct a formal administrative proceeding, the purpose of which is to resolve

genuine disputes as to material fact. The DiLorenzos probably should have expressed their feeling with respect to the severity of expulsion to the School Board of Palm Beach County, not to a Hearing Officer. Nonetheless, having traveled to Pompano Beach and heard what the parties had to say, and in response to both parties' request, the Hearing Officer has prepared a Recommended Order. See Section 120.57, Florida Statutes (1983).

The DiLorenzos submitted a post-hearing letter, but no proposed findings of fact. The School Beard did not file any proposed findings of fact, which were to be filed within 10 days after the filing of the transcript. The School Board's attorney apparently has been in possession of the transcript since August. But, despite repeated telephone requests, beginning on September 19, the School Beard attorney has not filed the transcript. Therefore, the School Beard is deemed to have waived filing of a proposed recommended order.

COPIES FURNISHED:

Julieann Rico, Esquire Richard F. Oftedal, Esquire

School Board of Palm Beach County 3323 Belvedere Road

West Palm Beach, Florida 33402

Nicholas DiLorenzo Carmela DiLorenzo 1904 N. W. 4th Avenue

Boca Raton, Florida 33431

Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road, Building 502 West Palm Beach, Florida 33402

Docket for Case No: 84-001424

Orders for Case No: 84-001424