10-000917PL Dr. Eric J. Smith, As Commissioner Of Education vs. Jorge Vazquez Status: Closed Recommended Order on Wednesday, August 18, 2010.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent was guilty of alleged violations of immoral acts. Recommend that no disciplinary action be taken.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10-0917PL

)

JORGE VAZQUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 4, 2010, in Orlando, Florida, before Jeff B. Clark, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

For Respondent: Joseph Egan, Jr., Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802-2231

STATEMENT OF THE ISSUE

Whether it is appropriate for Petitioner to discipline

Respondent's Florida educator's certificate for acts alleged in

Petitioner's Administrative Complaint dated December 15, 2009.

PRELIMINARY STATEMENT

On December 15, 2009, Petitioner, Dr. Eric J. Smith,

Commissioner of Education, filed an Administrative Complaint

advising Respondent, Jorge L. Vazquez, that he was seeking

disciplinary sanctions against his Florida educator's

certificate.

On January 14, 2010, Respondent requested a formal

administrative hearing. On February 19, 2010, Petitioner

forwarded the case to the Division of Administrative Hearings

for assignment of an Administrative Law Judge.

On February 22, 2010, an Initial Order was sent to both

parties requesting, inter alia , mutually-convenient dates for

the final hearing. Based on the response of the parties on

March 3, 2010, the case was scheduled for final hearing on

May 4, 2010, in Orlando, Florida.

The hearing took place as scheduled on May 4, 2010.

Petitioner presented four witnesses: Rose Stewart-Kellam,

Tracie Snell, Maxine Risper, Margaret Harriston, Patricia

Shavers, and Theresa Shavers. Petitioner submitted six exhibits

that were received into evidence and marked Petitioner's

Exhibits 1 through 6. However, Petitioner's Exhibit 6, a

"disc," was never received by the undersigned Administrative Law

Judge and was, therefore, not considered in this Recommended

Order. Respondent testified in his own behalf and offered five

exhibits that were received into evidence and marked

Respondent's Exhibits 1 through 5.

The Transcript of Proceedings was filed on June 10, 2010.

Both parties timely submitted Proposed Recommended Orders.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Respondent holds Florida Professional Educator's

Certificate No. 1010487, covering the area of social science,

which is valid through June 30, 2009. He is 48 years old and

has taught for nine years. He lives with a woman and her two

daughters in a marital-type relationship.

2. At the time of the incident alleged in the

Administrative Complaint, Respondent was employed as an

economics teacher at Oak Ridge High School, Orlando, Florida.

Respondent listed his personal cellular telephone number and

email address on his teaching syllabus.

3. Theresa Shavers, was an 18-year-old senior in

Respondent's Fall semester economics class.

4. January 9, 2009, was the last day of regular class for

the Fall semester. Respondent's students, Ms. Shavers among

them, who had a high grade-point average, did not have to take

the final exam. Grades for the Fall semester were posted on

January 14, 2009.

5. Respondent's birthday party, given by his students, was

held during this time period. Theresa Shavers attended and gave

him a hand-made card.

6. On January 12, 2009, Ms. Shavers initiated a

text-message communication with Respondent; and on January 13,

2009, Ms. Shavers and Respondent had a 26-minute telephone

conversation. Text messages and telephone calls, initiated by

both Ms. Shavers and Respondent, continued until January 19,

2009. Some of the telephone calls were inordinately long, e.g. ,

81 minutes.

7. Both Ms. Shavers and Respondent testified regarding the

content of their conversations. While there was general

agreement regarding some of the conversations, their testimony

regarding any topic that could be considered inappropriate

between a teacher and student is contradictory. Petitioner

presented two witnesses who heard parts of the conversations;

their testimony added little.

8. The following are points of agreement regarding their

conversations: that Ms. Shavers revealed to Respondent that she

had been raped/molested by an uncle; that she was concerned

about having a place to live because her mother was moving to

North Carolina (Ms. Shavers remained in Orlando living with a

friend to complete her senior year); and that she expressed

concern about her future and college. It is not unreasonable to

believe that a teacher, when confronted by the foregoing

information, would be concerned about the student's emotional

well-being and become involved in extended conversations with

the student.

9. At some point during the relevant period, Ms. Shavers

transmitted digital photographs of herself to Respondent. Some

of the photographs depicted Ms. Shavers in a bra and panties.

These photographs were not solicited by Respondent. Of

significance, Ms. Shavers did not reveal this to any

investigator or school official. In fact, Ms. Shavers denied

having sent the photographs when questioned by the school board

investigator.

10. Much of the telephoning and texting took place while

school was not in session; the semester break occurred in the

relevant period and there was a weekend and a school holiday,

Martin Luther King, on Monday, January 19, 2009.

11. Early Tuesday morning, January 20, 2009, Ms. Shavers

reported her version of the interaction between herself and

Respondent to a teacher. Immediate action was taken by school

authorities; Respondent was relieved of his teaching

responsibilities that morning.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2009); Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA

1993).

13. Because Respondent's Florida educator's certificate is

at risk of being sanctioned, Petitioner bears the burden of

proving the allegations in the Administrative Complaint by clear

and convincing evidence. Department of Banking and Finance v.

Osbourne, Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The definition of clear

and convincing evidence is found in the case of Slomowitz v.

Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

14. Because the statute and rules providing grounds for

disciplining Respondent's Florida educator's certificate are

penal in nature, they must be construed in favor of Respondent.

Rosario v. Burke , 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v.

Department of Professional Regulations , 348 So. 2d 923 (Fla. 1st

DCA 1977).

15. Section 1012.795, Florida Statutes, which Respondent

is alleged to have violated, reads, in pertinent part, as

follows:

(1) The Education Practices Commission

may suspend the educator certificate of

any person as defined in s. 1012.01(2)

or (3) for up to 5 years, thereby denying

that person the right to teach or otherwise

be employed by a district school board or a

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to ten years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality

or an act involving moral turpitude as

defined by rule of the State Board of

Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules.

16. The Administrative Complaint further states that

Respondent violated Florida Administrative Code Rule 6B-1.006

which, in pertinent part, states as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/ or physical health and/or safety.

17. To understand the meaning of "gross immorality" or

"moral turpitude," resort is made to provisions within Florida

Administrative Code Rule Chapter 6B-4.

18. Florida Administrative Code Rule 6B.4009(2) defines

immorality as:

[C]onduct that is inconsistent with

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerned

or the educational profession into public

disgrace or disrespect and impair the

individual's service in the community.

For the conduct to be considered "grossly" immoral, it would

need to be a form of immorality that is obvious and inexcusable.

19. "Moral turpitude" is defined at Florida Administrative

Code Rule 6B-4.009(6) as a:

[C]rime that is evidenced by an act of

baseness, vileness, or depravity in the

private and social duties which, according

to the accepted standards of the time, a man

owes to his or her fellowman or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

20. Because of contradictory testimony regarding anything

that may have remotely fallen within the definitions of gross

immortality and moral turpitude, the credibility of Petitioner's

complaining witness, Theresa Shavers, regarding those matters,

would have to be believed; her testimony is not credible.

21. No persuasive evidence was presented relating to the

allegation that Respondent's effectiveness as a teacher was

impaired.

22. Petitioner has failed to prove by "clear and

convincing evidence" that Respondent was guilty of gross

immorality or an act of moral turpitude, was guilty of personal

conduct that reduces his effectiveness as a teacher, or that he

violated the Principles of Professional Conduct for the

Education Profession in Florida in that he failed to "make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student's mental and/or physical

health and/or safety."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Jorge Vazquez, be found not

guilty of the violations alleged in the Administrative Complaint

and that no disciplinary action be taken.

DONE AND ENTERED this 18th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of August, 2010.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Joseph Egan, Jr., Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802-2231

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.