17-006144PL Pam Stewart, As Commissioner Of Education vs. Alexander Osuna Status: Closed Recommended Order on Wednesday, May 23, 2018.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent intentionally and knowingly violated the Principles of Professional Conduct by having a relationship with an adult he believed to be a college student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 17 - 6144PL

ALEXANDER OSUNA,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge , with the Division of

Administrative Hearings ( Ð DOAH Ñ ), on February 2 0 , 2018 , by video

teleconference at sites located in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Cha rles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Emily Moore, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent violated section 1012.795(1)(j) ,

Florida Statutes (201 7 ) , 1/ and Florida Administrative Code

Rule 6A - 10.081(2)(a)1. and 8. , as alleged in the Administrative

Complaint; and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On August 25, 2017 , Petitioner filed an Administrative

Com plaint against Respondent. Respondent disputed the

allegations and, on September 21, 2017, timely filed a n Election

of Rights with Request for Voluntary Dismissal. By letter dated

October 13, 2017, Petitioner rejected Respondent Ó s Election of

Rights . Thereafter, on November 2, 2017, Respondent filed an

Amended Election of Rights with an attached Mitigation Statement

and Renewed Request for Voluntary Dismissal . On November 8,

2017, the case was referred to DOAH and scheduled for a hearing

involving disputed issues of material fact, which was held on

February 20, 2018 .

At the hearing, Petitioner presented the testimony of

Sergeant Brad Rosh ; De tective G yl mar Ochoa ; and A.T. , the

18 - year - old female identified in the Administrative Complaint .

Petitioner Ó s Exhibits 1 through 5 were admitted into evidence.

Respondent testified on his own behalf and presented th e

testimony of Victoria Dobbs ( p rincipal), Pamela Shlac h tman

( s cience d epartment h ead), Nicola Rousseau (parent and b ooster

c lub p resident) , and Samantha Rousseau (former student and

lacrosse team leader) . Respondent Exhibits 1 through 11 were

admitted in to evidence .

The parties filed a Joint Pre - Hearing Stipulation and

proceeded to hearing on the one remaining contested issue:

whether Respondent knew that A.T. was a high school student , as

alleged in the Administrative Complaint.

A one - volume Transcrip t of the final hearing was filed on

March 12 , 2018 . Both parties timely submitted Proposed

Recommended Order s on April 16, 2018, after an Unopposed Motion

for Enlargement of Time was granted, extending the due date for

the proposed orders from April 2, 20 18. The Proposed Recommended

Orders, as well as the testimony and exhibits admitted at

hearing , have been duly considered in the preparation of this

Recommended Order.

FINDING S OF FACT

Uncontested Facts by the Parties

1. Respondent holds a valid Florida Educator Ó s Certificate

No. 1046827, covering the area of Biology, which is valid through

June 30, 2020.

2. At all times pertinent to this matter, Respondent was

employed as a Biology t eacher at Miami Palmetto Senior High

School ( Ð MPHS Ñ ) in the Miami - Dade County School District.

3. Respondent knew A.T. was a student at MPHS during the

2015 - 2016 school year and had tried out for the school Ó s lacrosse

team in late January 2016.

4. Respondent sent a text message to A.T. on December 19,

2016, stating, Ð How ar e you? Ñ

5. Respondent sent and exchanged text messages with A.T. in

March 2017.

6. Respondent met and engaged in sexual intercourse with

A.T. in late March 2017.

7. Respondent resigned from his employment with Miami - Dade

County Schools on May 3, 2017, c iting Ð personal reasons. Ñ

Additional Findings of Fact

8. Petitioner, as Commissioner of Education, is responsible

for investigating and prosecuting complaints against individuals

who hold Florida e ducat or c ertificate s , and are alleged to have

violated pr ovisions of section 1012.795 .

9 . Respondent is a highly effective educator who, over the

course of his ten - year career, has earned the respect of his

former p rincipal and science department h ead, as well as parents

and students with whom he has come in contact.

10 . The allegations of misconduct in this case ha ve not

altered the high professional regard in which Respondent is held

by Principal Victoria Dobbs ; Science Department Head Pamela

Shlachtman ; parent and lacrosse team booster club president

Nicol a Rousseau ; and former student , lacrosse player, and the

daughter of Nicola Rousseau, Samantha Rousseau.

11 . Each of these witnesses testified that their knowledge,

observations, and experience working with Respondent led them to

believe that he never w ould have had any type of relationship

with a woman he believed to be a high school student.

12 . Each of these witnesses testified that, to the best of

their knowledge, they had never seen or heard reports of any

inappropriate conduct between Respondent a nd a student.

13 . Principal Dobbs bragged in a letter about Respondent

and the support of his peers in voting him Science Teacher of the

Year . She testified that in her 12 years of service at MPHS, the

last three of which she was principal, she had no co ncerns with

Respondent regarding inappropriate relationships with students.

To the contrary, she recalled him as a very good teacher , who

participated in many school activities and field trips . He also

served as coach for the girls Ó lacrosse team.

14 . P rincipal Dobbs further testified that she was never

informed that Respondent had been accused of having an

inappropriate relationship with a student at her school. She was

only made aware of a request by the school district for

Respondent Ó s computer. She testified that if she had believed

Respondent had an intimate relationship with a high school

student, she would not have employed him.

15 . Ms. Shlachtman has been employed at MPHS since 2001 and

has been a teacher since 1984. She affirmed her previousl y

written statement supporting Respondent, and testified she had

participated in the hiring and selection of Respondent ten years

previously as a marine biology teacher. She stated that he had

Ð the soul of an educator. Ñ

16 . As a member of Ms. Shlachtman Ó s staff, Respondent had

chaperoned multiple field trips, including extended travel with

students and staff for the Enviro Team, and to state and national

competitions in Montana and Toronto, Canada. Having seen

R espondent react with both male and female s tudents on seven - and

ten - day trips , she never had a concern or received a complaint.

She also knew girls on the lacrosse team and had never heard a

concern reported from there. She noted that Respondent had the

opportunity to be alone with students on m ultiple occasions, and

no concerns or inappropriate behavior was ever reported. She

would rehire Respondent on her staff again, if given the

opportunity.

17 . Ms. Rousseau, the mother of three daughters who trained

with R espondent at his CrossFit gym , als o served as president of

the girls Ó lacrosse team booster club. She affirmed her previous

letter of support for Respondent and testified about her

commitment to Respondent as a trainer for her three daughters at

his gym , which she said would continue.

18 . Additionally, Samantha Rousseau, Nicola Ó s daughter , and

a full - time student at the University of Florida, confirmed her

support for Respondent. While a student at MPHS, she had served

as assistant captain o f the girls Ó lacrosse team during her

senior ye ar (2014) , while Respondent was the team coach. She had

known Respondent since she was a sophomore student in his

Television Production class; she had traveled with Respondent to

Los Angeles as part of his class; and had ridden numerous times

on the team bus with Respondent. She testified that she believed

Respondent would not have been involved with A.T. had he known

she was a high school student.

19 . Respondent first encountered A.T. during MPHS lacrosse

tryouts in late January 2016. A.T. was a junior at that time.

Respondent had no further contact with A.T. until he sent her a

December 12, 2016, text stating, Ð Hi! How was your weekend? You

missed out on Saturday morning [referring to a workout designed

for lacrosse players at CrossFit gym] . Ñ A.T. , still a student at

MPHS at the time of th is text message, never replied to it .

20. On March 15, 2017, Respondent sent a nother text message

to A.T., stating , Ð Hey, what Ó s up? How have you been? Ñ The

remaining text messages sent by Respondent to A.T. we re undated,

but were sent between March 15 and their sexual encounter in late

March. The text messages were sexually graphic. The messages

sent by Respondent included explicit photographs, and while those

sent by A.T. had explicit photographs , they were removed to

protect her privacy.

21. A.T. was a student at MPHS through December 2016. On

January 12, 2017, the Miami - Dade School District conducted a

conference to formulate an Individual Education Plan (IEP) for

A.T. She was placed in a hospital/home bound program at that time

and graduated from the virtual school in June 2017. She did not

attend college during this time.

22. Respondent never denied the one - time sexual encounter

he had with A.T. On the day when the encounter took place,

March 19, 20 17, A.T. texted Respondent and asked if she could see

him that night. A.T. was driven by a friend to Briar Bay Park

where she met Respondent , who was already there and waiting for

her in his car. She had sexual intercourse with him in his car.

After the ir liai son, Respondent drove her home. A.T. and

Respondent had no contact after that time.

23. A great deal of testimony was elicited about whether

Respondent texted or phoned A.T. and discussed her status as a

student in March 2017. At different times during the

investigation into the sexual encounter between A.T. and

Respondent, he said he texted, instant messaged, or telephoned

A.T. about her school . Respondent believed her to be taking

courses at Miami Dade College ( Ð MDC Ñ ) during the spring semester

of 2017. In fact, she was a student at Brucie Ball Education

Center ( Ð Brucie Ball Ñ ) , a virtual school where she took online

courses to complete her high school education , graduat ing in

June 2017 . Respondent consistently believed, at the time of his

inte rview by Detective Ochoa, during his deposition, and at

hearing , that A.T. was in college and testified he was never told

she was at Brucie Ball.

24. A.T. Ó s memory is less clear. She testified she could

not recall t elling Respondent she was taking colleg e courses, but

there is no doubt she was enrolled at Brucie Ball during her

final semester of high school and not at MDC .

25. She remembers that she received a social media invite

from Respondent to attend his CrossFit boot camp in

December 2016. She r ecalls communicating back and forth via

social media after that time, especially when Respondent texted

her about missing her at boot camp. She and Respondent testified

to multiple additional conversations via social media or texting,

but many of those we re not produced as evidence.

26. When a three - month gap between their messaging

occurred, Respondent testified that A.T. told him she had been

backpacking in Africa with friends and, according to what he

recalled she told him , she was taking courses at MD C. She did

not recall having told him she was taking courses at MDC, but

Ð guessed he knew Ñ she was still a high school student because the

previous year she had been a junior at MPHS. Ð It never came up, Ñ

she testified.

27. While she could not recall hav ing told Respondent she

had been to Africa and was taking courses at MDC, A.T. testified

she recalled many more text messages between Respondent and her

that were not printed from her phone and introduced into evidence

at hearing.

28. According to A .T., she had not talked to Respondent

about her upcoming 18th birthday on March 2, 2017. Yet, she

invited him to the celebration at a club called Ð Do Not Sit on

the Couch. Ñ She also shared with him that she and her friends

often visited another club call ed Ð Little Hoolies, Ñ and invited

Respondent to join them. Both of these clubs serve alcohol and

are for adults over 21. Respondent did not join them at either

club. A.T. did not recall any of these conversations at hearing .

29. A.T. declined to be inte rviewed by Petitioner Ó s

Professional Practices Services investigator. At hearing , s he

could not recall a request to be interviewed.

30. Respondent assumed A.T. was older than 18 when they met

at the park for sex , since he believed her to be taking classe s

at MDC ; she hung out with her friends at two adult clubs ; and she

brought alcohol, a vapor pen , and THC oils with her when they met

in the park. He did not believe this to be typical high school

behavior.

31. Respondent also believed A.T. Ó s absence fro m social

media for three months before they had their encounter at the

park was explained by her telling him she had been backpacking in

Africa where he assumed she did not have readily available access

to the I nternet. He also believes this support ed his

understanding that A.T. was in college at that point , since three

months of backpacking do es not usually occur as part of a high

school experience.

32. Respondent consistently testified, from his statements

to law enforcement to his appearance at hearing , that had he

known A.T. was still a high school student, regardless of whether

she was at the school where he taught, he would have never had an

intimate relationship with her. Moreover, law enforcement never

asked Respondent for his phone at the time of the investigation.

After he learned A.T. had been a high school student in

March 2017 , when they had their one - time sexual relationship , on

May 3 of that year he resigned his position as a teacher at MPHS

for Ð personal reasons, Ñ based upon advice he rece ived from union

representatives and an investigator, and to spare embarrassment

to his school, colleagues, and family.

33. At the time A.T. had entered into an IEP with Miami -

Dade, her school was listed as South Miami Senior High School,

not MPHS. This explains why Respondent never saw her again at

MPHS in her final semester. There was no evidence presented that

Respondent knew A.T. had not graduated from MPHS or that she had

enrolled in either South Miami High School or Brucie Ball when

she did not re turn to MPHS for the spring semester of 2017.

34. Respondent Ó s assertion that he was unaware of A.T. , an

18 - year - old, still being in high school at the time of their

March 2017 encounter , along with his cooperation with the

investigation and admission at all times pertinent to it that he

had a sexual relationship with A.T. , renders his testimony more

credible than A.T. Ó s concerning what Respondent knew about her

status as a student. No evidence was produced that Respondent

ever had an improper relationshi p with A.T. while she was under

the age of 18. A.T. Ó s lack of candor and lack of cooperation

with Detective Ochoa, the investigator on the case , as well as

her incomplete memory of the various text messages with

Respondent bring into question her truth an d veracity when

testifying against Respondent.

CONCLUSIONS OF LAW

3 5 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sections 120.569 and 120.57(1) ,

Florida S tatutes .

36. S ections 1012.795(1) and 1012.796(6) authorize the

Commissioner of Education to file a formal complaint and

prosecute that complaint against a te a cher Ó s certificate pursuant

to the provisions of chapter 120.

37. A proceeding, such as this on e, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm Ó n , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose such discipline, Petitioner

must prove the allegations in the Ad ministrative Complaint by

clear and convincing evidence. Dep Ó t of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep Ó t of Bus. & Prof Ó l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

38. What constitutes clear and convincing evidence was

described in Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1989) , as follows:

[C]lear and convincing evidence requir es that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence mus t be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

39. The Florida Supreme Court later adopted the Slomowitz

court Ó s descripti on of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also followed the Slomowitz test, adding the

interpretive comment that Ð [a]lthough this standard of proof may

be met where the evide nce is in conflict . . . it seems to

preclude the evidence that is ambiguous. Ñ Wes tinghouse Elec.

Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991)

(citations omitted), rev. denied , 599 So. 2d 1279 (Fla. 1992).

40. Disciplinary statutes and rules Ð must be construed

strictly, in favor of the one against whom the penalty would be

imposed. Ñ Munch v. Dep Ó t of Prof Ó l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep Ó t of

Bus. & Prof Ó l Reg. , 812 So. 2d 583, 58 3 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training Comm Ó n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984) ( Ð [W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No con duct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee. Ñ

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

41. Discipli ne may be imposed only on grounds specifically

alleged in the Administrative Complaint. See Cottrill v. Dep Ó t

of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v.

Dep Ó t of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter

v. Dep Ó t of Prof Ó l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

42. Respondent is charged in the Administrative Complaint

with one statutory and two rule violations. Count One cites a

violation of section 1012.795(1)(j) in that Respondent has

violated one or more of the P rinciples of Professional Conduct

for the Education Profession prescribed by State Board of

Education rules. Petitioner has charged Respondent with two rule

violations : r ule 6A - 10.081(2)(a)1 . and 8 .

43. Section 1012.795(1)(j) provides , as follow s :

101 2.795 Education Practices Commission;

authority to discipline. Ï

(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 ot herwise be employed

by a district school board or 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

10 years, with reinstatement subject to the

provisions of s ubsection (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 sus pend 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:

* * *

(j) Has violated the Principles of

Profe ssional Conduct for the Education

Profession prescribed by State Board of

Education rules.

44. Rule 6A - 10.081(2)(a)1 . a nd 8 . p rovide s, as follows:

(2) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these principles shall subject the

individual to revocation or suspension of the

individual educator Ó s certificate, or the

other penalties as provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protec t

the student from conditions harmful to

learning and/or to the student Ó s mental

and/or physical health and/or safety.

* * *

8. Shall not exploit a relationship with a

student for personal gain or advantage.

45. Petitioner has argued throughout it s Pro posed

Re commended O r der that Respondent clearly knew A.T. was a high

school student at the time of their sexual encounter. Many

strong statements were made that Respondent Ð seduced Ñ A.T., when,

in fact, at best , Respondent accepted her offer to meet at Briar

Bay Park. The texts between A.T. and Respondent, before they

became sexual in nature , were mere invitations to work out with

other students at a CrossFit boot camp. Once they became sexual,

Respondent had not heard from A.T. for three months; te stified

that she told him she had been backpacking in Africa and was a

college student; and most of the time did not even respond to his

infrequent texts. If this can be characterized as a Ð seduction, Ñ

it was quite a subtle one .

46. The texting of nude p hotographs, while perhaps vulgar

and distasteful to most people , was between two adults, albeit

one of whom had only recen tly turned 18 and who had previously

invited Respondent to celebrate her 18th birthday, an invitation

he did not accept. Respondent Ó s assumption that A.T. was both an

adult (accurate) and a college student (inaccurate, but not

unreasonable) justified his acceptance of her offer to meet at

the park of her own volition. A.T. was dropped at the park by a

friend and, after the encounter wi th Respondent, accepted a ride

home with him. After that one meeting, they apparently never met

again.

47. While the majority of high school students graduate

after the spring semester, no evidence was presented that many do

not graduate after the fall s emester. Respondent Ó s belief that

A.T. had graduated, gone backpacking in Africa for three months,

then returned home to take classes at MDC , was not a n

unreasonable conclusion on his part. Additionally, knowing fully

what happened between Respondent and A.T., his colleagues,

including his former p rincipal and the s cience d epartment h ead ,

stood behind him, touting his great value to MPHS and the school

district and vouching for his good name and excellent behavior as

a teacher over a ten - year period.

48 . Respondent has presented commendable character, conduct

and reputation evidence through the two school administrators, as

well as through Ms. Rousseau and her daughter. Each of these

witnesses believed that had Respondent known A.T. was still

enrolled as a high school student, he would not have engaged in

an intimate relationship with her. Respondent has maintained

this position consistently throughout the investigation and these

proceedings. When he learned that A.T. was enrolled in high

school, rath er than fighting the charges at the school district

level, he chose to resign his position with MPHS , rather than

bring further embarrassment on his school and its administrators.

49. Petitioner has failed to prove by clear and convincing

evidence that Re spondent intentionally or knowingly violated the

statutory and rule provisions cited above. Accordingly, no

action should be taken against his educator Ó s certificate , and

the charges against him should be dismissed.

RECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a f inal o rder dismissing the charges against Respondent in

their entirety.

DONE AND ENTERED this 23rd day of May , 2018 , in Tallahassee,

Leon County, Fl orida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May , 2018 .

ENDNOTE

1/ References to statutes are to Florida Statutes (201 7 ), unless

otherwise noted.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Emily Moore, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

( eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

(eServed)

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

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.