STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1786

)

JOSEPH CABALEIRO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on September

6 and 20, 1985 in Miami, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane

1. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: Frank R. Harder, Esq.

   Suite 100, Twin Oaks Building 2780 Galloway Road

   Miami, Florida 33132

   
   

   For Respondent: Joseph Cabaleiro

   3000 Northwest 16th Street Miami, Florida 33125

   
   

   This matter arose on the assignment by the School Board of Dade County of Joseph Cabaleiro to an alternative school, Youth Opportunity School-South. Respondent, Joseph Cabaleiro, requested a formal hearing through the written request of his father, Jose Cabaleiro.

   
   

   The issue is whether Cabaleiro meets the criteria for assignment to an educational alternative program.

   
   

   Petitioner presented the testimony of Paul Redlhammer, assistant principal of Shenandoah Junior High School; Samuel James Stinson, assistant principal of Shenandoah; and Lourdes Delgado; assistant principal of Shenandoah. Petitioner

   introduced eight exhibits. Respondent presented his own testimony and that of Jose Cabaleiro, his father, together with one exhibit. The parties waived the filing of a transcript and proposed orders.

   FINDINGS OF FACT

   
   

   1. Joseph Cabaleiro was a student at Shenandoah Junior High School during the 1983-84 and 1984-85 school years until his assignment to the alternative school.

      
      

   2. During his attendance at Shenandoah, Cabaleiro was involved in numerous instances of misbehavior that required disciplinary action. During the 1983-84 school year, Cabaleiro was suspended for fighting on October 19, 1983, and for being continually disruptive in class on May 11, 1984.

      
      

   3. On December 13, 1984, Cabaleiro received a warning for being at an off-limits area during lunch. On January 17, 1985, he was disciplined for constant disruptive conduct in the classroom. He was given a three-day outdoor suspension for fighting on February 8, 1985, and a ten-day outdoor suspension for assault and battery on a teacher on February 20, 1985. This February 20, 1985, incident merits some discussion. An altercation occurred between Mr. Long, a P. E. teacher, and Cabaleiro. During the incident Cabaleiro cursed Mr. Long and Mr. Long allegedly threw a ball at Cabaleiro more than once. Cabaleiro then threw a set of wooden starting blocks at Mr. Long and went to the office to report that Mr. Long injured him with the ball. Cabaleiro alleges that he threw the wooden blocks to protect himself; but the evidence fails to support the need for such action in self defense. Cabaleiro left the playing field and went to the office without any attempt by Long to stop him. He could have left as easily before throwing the blocks. Throwing the blocks was not an act of self defense.

      
      

   4. On March 28, 1985, Cabaleiro was again suspended for general disruptive behavior. Finally on April 17, 1985, he was suspended for ten days for fighting. That same day he was reported for vandalism when a student saw him placing a piece of glass under the tire of Mr. Long's car. On April 18, 1985, Cabaleiro was recommended for assignment to the opportunity school.

      
      

   5. Academically, Cabaleiro has not been successful. His final grades for the 1983-84 school year were three F's and two D's with unsatisfactory grades in all classes for conduct and ratings of insufficient in effort for all classes. For the 1984-85 school year, Cabaleiro received F's in all classes academically, F's in all class for conduct, and 3's (insufficient) grades in all classes for effort. Additionally, from September 4, 1984 to March 5, 1985, Cabaleiro missed 41

      days of school, with 13 of those days being outdoor suspensions and 28 of those days being absences.

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Sections 120.57(1) and 230.2315, Florida Statutes (1983).

      
      

   7. Section 230.2315(4) 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 . . . ." This statute is further implemented in Rule 6A-1.994, Florida Administrative Code, which state:

      
      

      1. Definition. Educational alternative programs designed to meet the needs of students who are disruptive; disinterested, or unsuccessful in a normal school environment. The educational alternative may occur within the school system or in another agency authorized by the school board.

         
         

      2. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one

         (1) or more of the criteria prescribed below as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and rate of absences.

         
         

         1. Disruptive. A student 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 residential or day program of the Department of Health and Rehabilitative Services.

            
            

         2. Unsuccessful or disinterested. A student who:

         
         

         1. Demonstrates a lack of sufficient involvement in the traditional school program to achieve success because interests, needs or talents are not being addressed; or

            
            

         2. Shows unsatisfactory academic progress and the effort to provide assistance is either rejected or is ineffective.

         
         

   8. The disciplinary history of Cabaleiro shows "persistent behavior which interferes with" the educational process and "constant behavior resulting in frequent conflicts or a disruptive nature." Cabaleiro's aggressive; violent behavior "severely threatens the general welfare" of the student or others. Additionally, Cabaleiro is unsuccessful and shows unsatisfactory academic progress as evidenced by his grades and rate of absences. It is concluded that Cabaleiro meets the criteria for eligibility for assignment to the alternative school program as set forth in Rule 6A-1.994(2)(a) and (b).

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the School Board of Dade County enter a Final Order assigning Joseph Cabaleiro to the alternative school program at Youth Opportunity School-South.

DONE and ENTERED this 26th of September, 1985, in Tallahassee; Leon County, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985.

COPIES FURNISHED:

Mr. Joseph Cabaleiro 3000 N.W. 16th Street Miami, FL 33125

Frank R. Harder; Esq.

Suite 100, Twin Oaks Building 2780 Galloway Road

Miami, FL 33132

Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401

Miami, FL 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132

Docket for Case No: 85-001786

Orders for Case No: 85-001786