STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6944

)

JOHN SARMIENTO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 2, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

2780 Galloway Road, Suite 100 Twin Oaks Building

Miami, Florida 33165 For Respondent: No Appearance.

STATEMENT OF THE ISSUES

Whether Respondent should be transferred from Glades Middle School to an opportunity school.

PRELIMINARY STATEMENT

By letter dated November 27, 1989, the parents of John Sarmiento were notified by the Dade County School board that their son had been transferred from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the son's disruptive behavior and his failure to adjust to the regular school. By letter dated December 8, 1989, Roberto Sarmiento, as parent, and Mario Ruiz de la Torre, Esquire, as attorney, signed a request for formal hearing regarding the transfer.

Notice of Hearing, scheduling the hearing for March 2, 1990, was mailed on January 3, 1990, to Mario Ruiz de la Torre, Esquire, as attorney for Sarmiento, and to Frank R. Harder, Esquire, as attorney for the School Board. No appearance was made at the formal hearing on behalf of Sarmiento. Prior to the beginning of the hearing, Mr. Harder, at the request of the undersigned, tried unsuccessfully to call Sarmiento's attorney. Thereafter, the undersigned contacted by telephone the mother of John Sarmiento at her place of employment to remind her of the hearing. The mother indicated that she did not plan to attend the hearing and that she did not think that her husband or the attorney that had been consulted planned to attend. The start of the formal hearing was

delayed for approximately thirty minutes to give Respondent additional time to make an appearance at the hearing. Despite these efforts, no appearance was made by Sarmiento or on his behalf.

At the formal hearing, Petitioner called four witnesses and introduced two documentary exhibits which were accepted into evidence. No transcript of the hearing was filed. Neither party filed a post-hearing submittal.

FINDINGS OF FACT

1. For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems.

   
   

2. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct.

   
   

3. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 230.2316, Florida Statutes, is known as the Dropout Prevention Act. A public school student may be assigned to a disciplinary program in lieu of a regular school program pursuant to the provisions of Section 230.2316(4)(d)1, Florida Statutes, under the following circumstances:

   
   

   1. The student has a history of disruptive behavior in school or has committed an offense which warrants suspension or expulsion from school according to the district code of student conduct. For purposes of this program, "disruptive behavior" is 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 ...

         
         

6. John Sarmiento engaged in "disruptive behavior" within the meaning of Section 230.2316(4)(d)1, Florida Statutes, while he was a student at Glades Middle School. Despite the efforts of the school personnel to work with this student, he continued to regularly engage in disruptive conduct which interfered with his own learning and with the learning of his fellow students. Additionally, this student engaged in conduct that would have merited his suspension from school. This student requires attention and assistance which

   J.R.E. Lee, as an opportunity school, can provide, but which Glades Middle School, as a traditional program, cannot provide.

   
   

7. John Sarmiento's conduct justifies his assignment to J.R.E. Lee.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John

Sarmiento's assignment to the J.R.E. Lee opportunity school.

DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 3rd day of April 1990.

COPIES FURNISHED:

Frank R. Harder, Esquire

2780 Galloway Road, Suite 100 Twin Oaks Building

Miami, Florida 33165

Maria Ruiz de la Torre, Esquire

7111 Biscayne Boulevard, Suite Three Miami, Florida 33138

Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Docket for Case No: 89-006944

Orders for Case No: 89-006944