STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4561

)

RAIMUNDO MANUEL DANTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, formal hearing in this cause was held in Miami, Florida, on February 20, 1987, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: No appearance

o/b/o Raimundo Manuel Dante ISSUE

Whether Respondent should be placed in the school system's opportunity school program at Douglas MacArthur Senior High School-South.

BACKGROUND

This cause was initially noticed for 9:00 a.m. in Room 635, Dade County Courthouse, 73 West Flagler Street, Miami, Florida. At the time of hearing it was moved to Courtroom 4-3 in the same building. Arrangements were made for all persons presenting themselves at the original location of formal hearing to be directed to the new location. However, after waiting half an hour, no representative on behalf of Respondent had appeared.

Petitioner presented the oral testimony of Ernie Ortiz, a student; Barbara Gomez, English and science teacher; Maria Robbie, English teacher; and Donald Helip, Assistant Principal, all of W. R. Thomas Junior High School, and had 4 (3 composite) exhibits admitted in evidence. Petitioner concluded its case at 10:30 a.m. and no one had appeared on behalf of Respondent.

No transcript was provided and no party has filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida.

   
   

2. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school.

   
   

3. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive.

   
   

4. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D."

   
   

5. On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements.

   
   

6. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening.

   
   

7. All counseling with the parents in the 1984-1985 school year appear to have dead-ended.

8. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted.

   
   

9. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July

   7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other.

   
   

10. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him.

    
    

11. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing.

    
    

12. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his.

    
    

13. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent.

    
    

14. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail.

    
    

15. The regular Dade County school program resources have been exhausted as regards Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

17. Respondent's failure to appear at the formally noticed hearing may be deemed as his waiver of a formal 120.57(1) proceeding, pursuant to rule 221- 6.22, Florida Administrative Code,

    
    

18. In light of Respondent's previous withdrawal and return to the Dade County school system, and in light of Petitioner's burden in these cases, Petitioner went forward with its case.

    
    

19. Section 230.2315, Florida Statutes, provides in pertinent part:

    
    

    1. ELIGIBILITY OF STUDENTS--Pursuant

       to rules adopted by the State Board of Education, 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 test scores, referrals for suspension or other disciplinary action, and rate of absences ...

       
       

    2. REVIEW OF PLACEMENT--The parents or guardians of a student shall be entitled to an administrative review of any action by school district personnel relating to placement of the student in an alternative program, pursuant to the provisions of chapter 120. .

    
    

20. Assignment by a school board to an alternative education program is dependent upon the student meeting one or more of the following eligibility criteria set out by Rule 6A- 1.994, Florida Administrative Code:

    
    

    (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

    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.

    
    

21. The school board has clearly demonstrated that Respondent meets eligibility criteria (2)(a) 1 and 2, and (b) 1 and 2.

RECOMMENDATION

Upon consideration of the foregoing, it is,

RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South.

DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 13th day of March, 1987.

COPIES FURNISHED:

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184

Docket for Case No: 86-004561

Orders for Case No: 86-004561