STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2130

)

ANDY COMACHO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 29, 1991, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Andy Comacho, should be assigned to J.R.E. Lee Opportunity School.

PRELIMINARY STATEMENT

By letter dated March 13, 1991, the Respondent's mother, Mercedes Urquiza, was advised that the Respondent was being administratively assigned to the

J.R.E. Lee Opportunity School. The letter states that the basis for the assignment was the Respondent's disruptive behavior and failure to adjust to the regular school. The Respondent's mother timely requested a formal hearing on the assignment and the matter was forwarded to the Division of Administrative Hearings which noticed and conducted the hearing.

Pursuant to a Notice of Hearing dated April 18, 1991, the case was scheduled for hearing on May 29, 1991. The Notice of Hearing was sent to the Respondent's mother at the address listed on the request for hearing. The Notice of Hearing was not returned as undeliverable. Prior to the hearing, counsel for Petitioner was in contact with Respondent's mother and she indicated that she was aware of the scheduled hearing date. No request for a continuance of the hearing was received. Neither the Respondent nor his mother appeared at the time and place scheduled for the hearing. Efforts to reach them on the day of the hearing were unsuccessful. After waiting for approximately 30 minutes, the hearing was commenced.

Petitioner presented the testimony of four witnesses: Veronica D. Rahming, an English teacher at W.R. Thomas Middle School (the "School"); Susan F. Burakoff, a history teacher at the School; Carmen Espinosa Enriquez, a

1. counselor at the School; and Daniel C. Jones, the Assistant Principal at the School. Petitioner offered twelve exhibits into evidence, all of which were accepted.

   
   

   No transcript of the proceeding has been filed. Petitioner has timely filed a proposed recommended order. A ruling on each of the Petitioner's proposed findings of fact is included in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

   
   

   1. Respondent, Andy Comacho, was an eighth grade student at W. R. Thomas Middle School (the "School") during the school year 1990/1991. The School is part of the Dade County, Florida, School District.

      
      

   2. During the first three grading periods of the 1990/1991 school year, Respondent's academic performance was poor. He had straight F's in three of his seven classes and had F's the last two grading periods in two of his other four courses. Respondent's effort ratings during this time period were extremely low. His academic performance during the 1990/1991 school year reflects a significant deterioration in academic performance from the preceding 1989/1990 school year.

      
      

   3. During the last part of the 1989/1990 school year, the Respondent's conduct began to deteriorate. His disruptive behavior continued throughout the 1990/1991 school year. Between January 3, 1990 and February 26, 1991, Respondent has received twelve disciplinary related referrals. During the 1990/1991 school year, Respondent has often been disruptive and disrespectful in class and his behavior has not only precluded him from scholastic progress but has also had a negative impact on the learning experience of other students in his classes.

      
      

   4. In his English class during the 1990/1991 school year, Respondent has rarely participated in any class activity, has seldom brought his books to class and often lacks other required class room materials. He has only submitted about a third of the homework assignments and he has frequently disrupted the class. On one occasion, he kicked over a desk during class.

      
      

   5. In his History class during the 1990/1991 school year, Respondent has failed to turn in approximately 80% of the homework assignments, has seldom brought materials to class and is often defiant of his teacher's authority. He has frequently been verbally abusive to other students and on one occasion he suggested to a female student that she perform an oral sexual activity with him. On another occasion, he stuck a girl with a pen and on still on another occasion, the teacher was forced to call security after Respondent jumped another student.

      
      

   6. Respondent was involved in at least three fist fights during the school year.

   7. As a result of his disruptive conduct, Respondent was given numerous detentions, many of which he failed to serve. He also received five outdoor suspensions and two indoor suspensions.

      
      

   8. The School attempted several ways to try to get the Respondent more interested in his school work and/or to correct his behavioral problems. Respondent received extensive one-on-one counseling. Respondent was also referred to an intervention program known as "To Reach Ultimate Success Together" (the "T.R.U.S.T. Program.") This program was an alternative to suspension and required the Respondent to attend counseling sessions once a week for about two hours after school. It also required his parents participate in at least some of the counseling sessions. The T.R.U.S.T. counselor tried to impress upon Respondent and his parents the necessity of active participation in the program. Nonetheless, Respondent skipped most of the sessions and his parents never showed up for any of the meetings.

      
      

   9. All the disciplinary and counseling strategies available to the School were attempted in an effort to assist Respondent in correcting his behavior. Notwithstanding these efforts, Respondent's behavior has not improved and his conduct has been detrimental to the learning environment for other students.

      
      

   10. The average number of students in a class at the School is approximately 30. The School does not have the resources to address peculiar student needs nor provide individual students with continuous attention. There are approximately twelve students to a class at the opportunity school and individualized educational plans are developed for the students. There are also more counselors on staff, including a psychologist.

       
       

   11. Respondent needs the increased structure and discipline that is available to students at an opportunity school. That program should assist him academically.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1) and 230.2316(8), Florida Statutes.

       
       

   13. The Dropout Prevention Act, Section 230.2316, et. seq., Florida Statutes (1990 Supp.) was enacted by the Legislature to authorize and encourage school boards to create programs to identify and motivate students who are likely to drop out of conventional educational programs.

       
       

   14. A student may be assigned to an opportunity school program when the student has a history of disruptive behavior. Section 230.2316(4)(d), Florida Statutes (1990 Supp.). The statute defines "disruptive behavior" as behavior which:

       
       

       1. Interferes with the student's own learning or the educational process of others and requires attention and assistance beyond that with 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 in contact.

          
          

   15. The Drop Out Prevention Act further provides that:

       
       

       Prior to assigning a student to a disciplinary program of more than 10 days duration, the district shall attempt a continuum of education and student services to identify

       the causes of the disruptive behavior, to modify the 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. Section 230.2316(4)(d)4, Florida Statutes.

       
       

   16. The statutory provisions and rules cited by Petitioner in its proposed recommended order are no longer in effect. Petitioner has not provided a copy of the existing school board rules and it is not clear whether J. R. E. Lee qualifies as a disciplinary program under Section 230.2316(4)(d), Florida Statutes.

       
       

   17. The evidence in this case did establish that Respondent has a history of disruptive behavior and should be assigned to a disciplinary program. Respondent was not making any progress in the regular school program offered at

       W. R. Thomas Middle School. Not only was Respondent not making academic progress, his behavior was disruptive and he was interfering with the educational experience of other students. Despite the numerous efforts undertaken by the School to correct Respondent's behavior and enhance his educational experience, no change in his conduct has been seen and Respondent's behavior has not improved.

       
       

   18. A disciplinary program will provide additional structure, which will hopefully assist Respondent in his behavior and enhance his academic performance. If Respondent successfully completes that program, he may be transferred back into the regular school program.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the assignment of Respondent, Andy Comacho, be assigned to a disciplinary program established pursuant to Section 230.2316(4)(d), Florida Statutes.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of June, 1991.

J. STEPHEN MENTON 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 26th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER

Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner.

The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or Reason for Rejection.

COPIES FURNISHED:

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

Madelyn P. Schere

Assistant School Board Attorney School Board of Dade County Board Administration Building Suite 301

1450 Northeast 2nd Avenue Miami, Florida 33132

Mrs. Mercedes Urquiza

1721 Southwest 137th Place Miami, Florida 33175

Octavio J. Visiedo Superintendent of Schools Dade County Public Schools Board Administration Building Suite 301

1450 Northeast 2nd Avenue Miami, Florida 33132

Sydeny H. McKenzie General Counsel The Capitol, PL-08

Tallahassee, Florida 32399-0400

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002130

Orders for Case No: 91-002130