STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1858

)

GUILLERMO HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above styled case was held on June 8, 1989, in Miami, Florida before Jane C. Hayman, hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent should be assigned to the school system's opportunity school program.

PRELIMINARY STATEMENT

By letter dated March 28, 1989, Petitioner informed Respondent's father that Respondent had been assigned to an opportunity school. By letter filed with Petitioner on March 27, 1989, Respondent's parent objected to the assignment. By letter dated March 31, 1989, Petitioner requested that the Division of Administrative Hearings appoint a hearing officer to conduct a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

At the formal hearing, Petitioner presented testimony of four witnesses and offered twelve exhibits which were admitted into evidence. Respondent did not appear nor was he represented at the hearing.

A transcript of the proceeding was not ordered, and proposed findings of fact and conclusions of law were due on June 28, 1989. Neither party submitted proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School.

2. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail.

   
   

3. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision.

   
   

4. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57 (1), Florida Statutes.

   
   

6. As part of the Dropout Prevention Act, Section 230.2316, Florida Statutes, disciplinary programs, similar to the opportunity school program in Dade County, Florida are authorized and may be provided for students who have a "history of disruptive behavior in school....", Section 230.2316(d), Florida Statutes. Disruptive behavior is further defined in Section 230.2316(d)(1), Florida Statutes, 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 into contact.

      
      

7. Section 230.2316 (d)(4) , Florida Statutes states the following:

   
   

   Prior to assigning a student to a disciplinary program of more that 10 days in duration, the district shall attempt a continuum of education and student services to identify the causes of the disruptive 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.

   
   

8. The Respondent has demonstrated disruptive behavior and qualifies for assignment in the disciplinary program. Here, the school offered Respondent several chances to correct his behavior through student services offered by Petitioner prior to suggesting such placement. Respondent failed, however, to correct his behavior.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program.

DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida.

JANE C. HAYMAN

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 29th day of June, 1989.

COPIES FURNISHED:

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155

Madelyn P. Schere, Esquire

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Docket for Case No: 89-001858

Orders for Case No: 89-001858