19-001125PL Richard Corcoran, As Commissioner Of Education vs. Javier Cuenca Status: Closed Recommended Order on Tuesday, November 26, 2019.

Summary: Respondent engaged in sexual misconduct, including lewd or lascivious molestation, with students, for which his educator certificate should be permanently revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD CORCORAN, AS

COMMISSIONER OF EDUCATION ,

Petitioner ,

vs. Case No. 19 - 1125PL

JAVIER CUENCA ,

Respondent .

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

August 20 , 201 9 , at sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: James C. Casey , Esquire

Law Offices of Slesnick and Casey, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33 1 34

STATEMENT OF THE ISSUES

Whether Respondent, a teacher and basketball coach, engaged

in sexual misconduct, including lewd or lascivious molestation,

with student athlete s; if so, whether disciplinary action , up to

and including permanent revocation, should be taken against his

educator certificate.

PRELIMINARY STATEMENT

On February 12 , 201 8 , the Commissioner of Education

( " Commissioner " ) issued an Administrative Complai nt against Javier

Cuenca . The Commissioner charged Mr. Cuenca , the holder of a

valid Florida Educator Certificate, with having violated the

statutes and ethical rules governing teachers based on allegations

that Mr. Cuenca had engaged in sexually inappropriate behavior,

including lewd or lascivious molestation, with several students .

Mr. Cuenca timely requested a hearing to contest the allegations,

and , on March 4 , 201 9 , the Education Practices Commission referred

the matter t o the Division of Administrative Hearings.

The Administrative Law Judge scheduled a final hearing for

May 2, 2019. On April 1 8 , 201 9 , the parties filed a joint motion

for continuance of the final hearing, which was granted. The

undersigned also grante d the Commissioner leave to file an Amended

Administrative Complaint, which he did on July 10, 2019.

Thereafter, t he final hearing took place as rescheduled on

August 20, 2019 , with both parties present.

At hearing, the Commissioner called five witnesses: Laura

Adams, Giovanna Blanco, Helen Pina, Alicia Neal, and O.Q.

Petitioner's Exhibits 1 through 1 1 were received in evidence.

Respondent's Exhibits 1 through 3 and 7 through 9 were admitted

at hearing without objection, as well . By agreemen t of the

parties, the depositions of D.N., D.F., and Mr. Cuenca were

taken after the hearing and submitted in lieu of personal

appearances. These depositions have been received in evidence

as hearing testimony. Finally, the affidavits of R.C. and E.L.

ar e admitted (over the Commissioner's hearsay objection) as

Respondent's Exhibits 5 and 6, respectively, pursuant to, and

for the limited purposes specified in, section 120.57(1)(c),

Florida Statutes. 1 /

The final hearing transcript was filed on September 10 ,

201 9 . On Mr. Cuenca's motion , the original filing deadline

established for p roposed r ecommended o rders was extended to

October 28 , 201 9 . The parties' respective submissions were

carefully reviewed and fully considered.

Unless otherwise indicated, cit ations to the official

statute law of the S tate of Florida refer to Florida Statutes

201 9 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were i n effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. Respondent Javier Cuenca ( " Cuenca " ) holds Florida

E ducator C ertificate 958539 , which covers the areas of

e ducational l eadership , m athematics, and p hysical e ducation and

is valid through June 30, 20 22 . During the time relevant to

this case, Cuenca worked as a teacher in the Miami - Dade County

Public School District ( " District " ) . For the 201 1 - 201 2 school

year, Cuenca was employed by Mater Academy , a c harter Sc hool in

Hialeah Gardens, Florida , after which he took a yearlong l eave

of absence from the D istrict to work f or a pr ivate company as a

tutor . Otherwise, Cuenca taught in traditional public schools.

In addition to teaching, Cuenca served as a basketball coach at

several schools , including Hialeah Gardens Middle School and

Hialeah Gardens Senior High School. Cuenca continued coaching

for these schools on a part - time basis even while on leave from

his teaching position.

2. Cuenca's employment with the District ended on

November 7, 2013, simultaneously with the commencement of an

investigation into allegations that he had engaged in sexual

misconduct with male students on the basketball team s he

coached . The facts giving rise to these allegations are

relevant to some of the instant charges against C uenca and will

be addressed further below in this Recommended Order.

3. Cuenca was arrested in 2014 and charged under three

separate criminal informations with multiple felonies arising

from allegations of lewd or lascivious child molestation. The

alleged victims were S tudents D.N., D.F., and R.D., each of whom

was a basketball player coached by Cuenca. Later, a fourth

criminal information was filed, charging Cuenca with lewd or

lascivious conduct against O.Q., another stud ent athlete whom

Cuenca had coached.

4. On October 4, 2016, Cuenca accepted a deal under which

he agreed to plead nolo contendere to the reduced charge of

felony battery in the cases involving D.F. and O.Q., which would

be consolidated in the process, in exchange for the dismissal of

the cases involving D.N. and R.D. Accepting the plea that same

day, the Circuit Court of the Eleventh Judicial Circuit, Miami -

Dade County, immediately entered a Finding of Guilt and Order of

Withholding A djudication/Special Conditions. 2 / Cuenca was placed

on probation for a period of two years.

5. The upshot is that Cuenca has a criminal record

comprising a pair of felony batteries committed, on separate

occasions, against two student athletes . At the same time,

however, Cuenca was not " found guilty " by a jury; was not

adjudicated guilty by the court; and did not plead guilty to, or

otherwise admit committing, these crimes. In short, strange as

it might seem, Cuenca —— who was sentenced and punished as a

felon —— is not a co nvicted felon. As we will see, moreover,

although entering a plea of nolo contendere to a criminal charge

is a disciplinable offense under current law, the statute in

effect at the time Cuenca entered his plea did not authorize the

Education Practices Commission ( " EPC " ) to discipline a teacher

for pleading no contest to a crime. If Cuenca has committed a

disciplinable offense , it is because of his conduct leading to

the criminal proceedings , not his criminal ba ckground per se .

6. The evidence of underlying wrongdoing in this case

concerns Cuenca's interactions with t hree players, O.Q., D.N . ,

and D.F. The most serious allegations involve O.Q. , a young man

who, unlike D.N., D.F., and Cuenca himself, appeared at hearing

to testify , rather than testifying via deposition as did the

others. O.Q. testified credibly that, when he was between the

ages of 15 and 16, his basketball coach, Cuenca, had

" inappropriately touched " him on multiple occasions. O.Q. was

unable t o remember how many times.

7. There was " one incident, " however, which stands out in

O.Q.'s mind as the " main incident " that will " stay with [him ]

f or the rest of [his] life. " O.Q . says that this incident is

" constantly on the back of [his] mind, " having left a " scar , "

which " haunts " him " [e]ven though it was years ago. " For O.Q. ,

it is " embarrassing even to mention or speak about " this

incident .

8. The incident happened at Cuenca's house, in " his room. "

According to O.Q., on this particular oc casion, Cuenca grabbed

and fondled O.Q.'s penis, for the purpose of m asturbating O.Q.,

which he did. 3 / T he undersigned believes O.Q. and finds that

this incident did, in fact, take place as O.Q. described it . 4 /

9. As a practical matter, this finding , alone, is

dispositive because , obviously, a teacher found to have

masturbated a 16 - year - old student will be guilty of one or more

disciplinable offenses sufficient to revoke his or her

certificate. Here, t he Commissioner has proved additional acts

of misconduct involving D.N. and D.F. , which should be addressed

nonetheless, if for no other reason than to r einforce the

inevitable outcome .

10. Cuenca's modus operandi for exploiting his

relationships with these players relied on his authority as a

coach to pressure them into exposing themselves. He frequently

asked them questions to determine whether they were sexually

active, ostensibly to urge abstinence and warn against becoming

involved in situations that might interfere with school work and

athletic s. To some extent , t hese conversations were

unobjectionable . Coaches should not be discouraged from

co unseling student athletes about age - appropriate sexual

behavior. Cuenca, however, overreached.

11. Using the abstinence angle as a pretext, Cuenca

p estered the players to show him their " virgin lines. " There

is, of course, no such thing as a " virgin line. " Cuenca used

this mumbo jumbo to trick his young players into believing that

there is some sort of physical mark of virginity visible on the

penis . Cuenca constantly demanded to see this " proof " of

virginity to confirm that his players were not misbehaving.

12. Another approach that Cuenca used was the offer of

steroids, which athletes sometimes take illicitly to gain muscle

mass and improv e their performance. Cuenca told the boys that

he needed to examine their genitals to ascertain their steroid

readiness . 5 / If they refused, Cuenca use d the stick of

retaliation, such as the threat of reduced playing time or

expulsion from the team.

13. Cuenca used these methods on D.N. and D.F. In

February 2013, Cuenca succeeded in convincing D.N., then a

junior in high school, to drop his shorts while the two were

alone together in the weight room. Cuenca stared at D.N.'s

penis and testicles, and declared that D.N. soon would be ready

for steroid s . 6 /

14. For D.F., the violation occurred in October 2012, when

he was a 15 - year - old freshman. Under the guise of inspecting

D.F.'s " virgin line, " and to gauge his readiness for steroids,

Cuenca directed D.F. to sit on a table in an empty classroom for

an examination. D.F. pulled down his pants, Cuenca took a look,

and then he reached in to touch D.F.'s genitals. D.F. slapped

Cuenca's hand, and Cuenca withdrew. In D.F.'s words, which the

undersigned credits as truthful and telling, t he incident left

D.F. " in a dark place , " " depressed, " and " sad, " and " nothing has

been the same [for him] since " this happened.

The Charges

1 5 . In the Amended Administrative Compl aint against

Cuenca , the Commissioner accused Cuenca of having committed six

disciplinable offenses, namely those defined in subsections

(1)(d) , (1)(f), and (1)(g) of section 1012.795, Florida

Statutes; and violations of subsections ( 2 )(a) 1. , ( 2)(a ) 5. , and

( 2 ) (a) 8 . of Flo rida Administrative Code Rule 6A - 1 0 .0 81 , which

are part of the Principles of Professional Conduct for the

Education Profession in Florida. 7 / If proved by clear and

convincing evidence, the alleged rule violations would be

grounds for di scipline under section 1012.795(1)(j).

1 6 . It is determined as a matter of ultimate fact that

Cuenca is guilty of gross immorality, which is an offense

punishable under section 10 1 2.795(1)(d); and that he exploited

his relationship s with O.Q., D.N., and D.F. for personal gain or

advantage, namely sexual gratification, in violation of

rule 6A - 10.081(2)(a)8. , which is an offense punishable under

section 1012.795(1)(j). It is further determined that Cuenca is

not guilty of having been convicted or found guilty of , or of

having pleaded guilty to, any criminal charge ; such a criminal

record, i f established, would have constituted a disciplinable

offense under section 1012.795(1)(f), Florida Statutes (2016).

17. As for the remaining charges, to determine Cuenca's

guilt or nonguilt would require the undersigned to explicate the

meaning of statutory and rule provisions whose applicability to

the facts at hand is not readily apparent. Because there are

ample grounds for permanently revoking Cuenca's educator

certificate without these additional legal conclusions, the

undersigned makes no findings of ultimate fact regarding

Cuenca's alleged violations of section 1012.795(1)(g) and rules

6A - 10.081(2)(a)1. and 5. If the EPC determines that such

findings are necessary, it may remand this case to the

undersigned for the entry of a s upplemental r ecommended o rder.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

secti ons 120.569, 120.57(1), and 1012.796(6), Florida Statutes

(201 9 ).

1 9 . Upon a finding of probable cause to believe that

grounds exist to revoke or suspend a teaching certificate, or to

impose any other appropriate penalty agains t a teacher, the

Commissioner is responsible for prosecuting the formal

administrative complaint. § 1012.796 (6) , Fla. Stat.

20 . If the Commissioner proves any of the grounds for

discipline enumerated in section 1012.795(1), then the EPC is

empowered to punish the certificate holder by imposing penalties

that may include one or more of the following: permanent

certificate revocation; certificate revocation, with

reinstatement following a period of not more than ten years;

certificate suspension for a period of time not to exceed five

years; an administrative fine not to exceed $2,000 for each

count or separate offense; restriction of the authorized scope

of practice; issuance of a written reprimand; and placement of

the teacher on prob ation for a period of time and subject to

such conditions as the EPC may specif y. §§ 1012.796(7),

1012.795(1), Fla. Stat.

21. Section 1012.795(1)(d), Florida Statues (2012),

authorizes the EPC to take disciplinary action against a teacher

when it has bee n shown that he "[h]as been guilty of gross

immorality or an act involving moral turpitude as defined by

rule of the State Board of Education." This is the offense

which the Commissioner has charged in Count 1 of the Amended

Administrative Complaint.

2 2 . Section 1012.795(1)( f ) , Florida Statutes (2016),

authorizes the EPC to take disciplinary action against a teacher

when it has been shown that he " [h]as been convicted or found

guilty of, or entered a plea of guilty to, regardless of

adjudication of guilt, a misdemeanor, felony, or any other

criminal charge, other than a minor traffic violation. " This is

the offense that the Commissioner has charged in Count 2 of the

A mended A dministrative Complaint.

2 3 . Section 1012.795(1)(j) , Florida Statues (2012),

authorizes the EPC to take disciplinary action against a teacher

when it has been shown that he " [h]as violated the Principles of

Professional Conduct for the Education Profession prescribed by

State Board of Education rules. " This is the offense which t he

Commissioner has charged in Counts 4 through 7 of the Amended

Administrative Complaint, with Counts 5 through 7 specifying the

particular rules that Cuenca is alleged to have violated.

2 4 . Florida Administrative Code Rule 6A - 10.081

(Jan. 1, 2013) 8 / pro vides , in pertinent part , 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 revocati on

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:

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

2 5 . The foregoing statutory and rule provisions are penal

in nature and must be strictly construed, with ambiguities being

resolved in favor of the licensee. Lester v. Dep't of Prof'l &

Occ. Regs. , 348 So. 2d 923, 925 (Fla. 1st DCA 1977). The

controlling version of such statutes and rules is the one in

effect at the time the alleged disciplinable offense was

committed. Childers v. Dep't of Envtl. Prot. , 696 So. 2d 962 ,

964 (Fla. 1st DCA 1997) . Whether Cuenca committed an offense, as cha rged, is a question of ultimate fact to be decided in the

context of each alleged violation. McKinney v. Castor , 667 So.

2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So.

2d 489, 491 (Fla. 1st DCA 1995). 9 /

2 6 . For the EPC to suspend or revoke a teacher's

certificate, or to impose any other penalty provided by law, the

Commissioner must prove the charges by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987); McKinney , 667 So. 2d at 388. Further, the grounds proven

must be those specifically alleged in the administrative

complaint. See, e.g. , Cottrill v. Dep't of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep't of State , 501

So. 2d 129, 133 (Fla. 5th DCA 1987) ; Hunter v. Dep't of Prof'l

Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA 1984). Where a licensed

professional has been charged with sexual misconduct, as here, "[t]he testimony of the victim of the sexual misconduct need not

be corroborated." § 120.81(4)(a), F la. Stat.

2 7 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition would

need to con tain " both qualitative and quantitative standards. "

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be p recise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must 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 allegati ons sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

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

Court of Appeal also has followed the Slo mowitz test, adding the

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

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

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

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

Gross Immorality

2 8 . At the time Cuenca committed the offenses at issue,

n either the legislature nor the State Board of Education ha d

defined the term " gross immorality " for purposes of section

1012.795(1)(d). 1 0 / The F indings of F act here, however, obvi ate

the need for legal analysis. While reasonable people may

disagree as to the relative immorality of many acts, child

molestation is not one of them. It goes without saying that

where, as here, a teacher has masturbated a 16 - year - old boy ,

that teacher is guilty of gross immorality. There is no reason

to belabor this point.

29. It is concluded that Cuenca is guilty of violating

section 1012.795(1)(d).

Criminal Conviction

30. At the time Cuenca made his bargain with the

prosecutor, pleading nolo contendere to a criminal charge was

not an administrative offense under section 1012.795(1)(f). The

legislature amended the statute in 2018 to close this loop hole.

See Ch. 2018 - 150, § 12, Laws of Fla. As a result, it is now a

disciplinable offense to plead nolo contendere to a criminal charge. Section 1012.795(1)(f), Florida Statutes (2019), cannot

be applied retroactively to no - contest pleas entered before its

effective date, however, which means that the version of the

statute in effect on October 4, 2016, is controlling as to

Cuenca. To be found guilty of violating section 1012.795(1)(f),

Florida Statutes (2016), Cuenca must have been "convicted" or

"foun d guilty of" a criminal charge, or have "entered a plea of

guilty to" such charge .

31. Cuenca did not plead guilty. Nor was Cuenca

"convicted" of a crime by the entry of a judgment of conviction

or an adjudication of guilt. See State v. McFadden , 772 S o. 2d

1209, 1216 (Fla. 2000)(absent specific statutory definition,

"conviction" is understood as requiring adjudication of guilt or

judgment of conviction by trial court). Yet, upon accepting his

no - contest plea, the circuit court entered an order contain ing

the words "finding of guilt" in its title and stating that

Cuenca has "been found guilty" of felony battery charges. In

this nominal sense, then, Cuenca was "found guilty." Legally

speaking, however, Cuenca was not "convicted" or "found guilty"

of fe lony battery, despite appearances, for reasons discussed at

length in Department of Health v. Higginbotham , Case

No. 10 - 2796PL, 2011 Fla. Div. Admin. Hear. LEXIS 106, at *25 - 34

(Fla. DOAH May 11, 2011), adopted in toto , Case No. 2004 - 50405

(Fla. DOH Aug. 2 6, 2011).

32. It is concluded that Cuenca is not guilty of violating

section 1012.795(1)(f).

Exploiting a Relationship With a Student

33 . The interactions between Cuenca and O.Q., D.N., and

D.F., respectively, took place within the context of the

teacher/coach - student relationship, and it is clear that Cuenca

leveraged this relationship in gaining the trust and,

ultimately, compliance of these student athletes. T o be sure,

t here is no direct evidence of any personal gain or advantage

that Cuenca d erived from his lewd or lascivious acts against

these boys. Given , however, that Cuenca could have had no

reasonable grounds for fondling O.Q.'s genitals and examining

the penises of D.N. and D.F., other than to satisfy some

prurient curiosity or gratify a sexual desire, the undersigned

has drawn the inescapable inference that Cuenca obtained a

personal gain from these encounters.

34 . For the foregoing reasons, the Commissioner succeeded

in proving by clear and convincing evidence that Cuenca

exploited relationships with O.Q., D.N., and D.F. for personal

gain or advantage. Therefore, Cuenca is guilty of violating

rule 6A - 10.081(3)(h) , which is a disciplinable offense under

section 1012.795(1)(j).

3 5 . The EPC imposes penalties upon teachers in accordanc e

with the disciplinary guidelines prescribed in Florida

Administrative Code Rule 6B - 11.007 ( Apr. 4, 2009). 1 1 / The

penalty range for being guilty of gross immorality when a

student is involved is " Suspension - Revocation. " See Fla.

Admin. Code R. 6B - 11.007(2)(c)2. The prescribed penalty for an

offense involving " [s] exual misconduct with any student or any

minor in violation of paragraphs 6B - 1.006(3) (a), (e), (g), (h) ,

(4)(c), F.A.C. " is " Revocation. " See Fla. Admin. Code R. 6B -

11.007(2)(i)5. (emphasis added). 1 2 /

3 6 . Rule 6B - 11.007 (3) provides that, in applying the

penalty guidelines, the following aggravating and mitigating

circumstances may be taken into account:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practi ced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator's livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offens es

under subsection (2) above;

(q) Pecuniary benefit or self - gain inuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

Having considered these criteria, the undersigned concludes that

no good cause exists to deviate from the recommended penalties.

3 7 . The Commissioner proposes that Cuenca's teaching

certificate be permanently revoked and that he be barred from

ever reapplying for a certificate . The undersigned concurs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the E ducation Practices Commission

enter a final order permanently revoking Cuenca's educator

certificate and deeming him forever ineligible to apply for a

new certificate in the S tate of Florida .

DONE AND ENTERED this 26th day of Nove mber , 201 9 , in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 26th day of November , 201 9 .

ENDNOTES

1 / It is questionable whether these affidavits should be given

any consideration at all, for the out - of - court statements

therein do not really supplement or explain any nonhearsay

evidence of record, but they possess so little probative value

that there is no point in excluding the exhibits on principle.

If the averments of R.C. and E.L. were credited as truthful and

persuasive, then D.N.'s credibility would be called into doubt,

requiring, perhaps, that his testimony in support of the charges

against Cuenc a be rejected as less than clear and convincing.

The undersigned does not give the affidavits such weight,

however, because the affiants —— unlike D.N. —— did not face cross -

examination in this proceeding (or any proceeding as far as the

undersigned knows). Further, the affidavits do not impeach the

credibility of either D.F. or O.Q., or rebut the testimony of

either young man, both of whom the undersigned found to be

truthful and reliable witnesses for the Commissioner. The

outcome of this case, in short, w ould have been the same e ven if

D.N. had not testified.

2 / At the time Cuenca entered his plea, there was some confusion

or indecision as to which statute —— section 784.03 or section

784.041, Florida Statutes —— should be cited as the legal

foundation for t he crimes to which Cuenca was being sentenced

pursuant to the plea bargain. Cuenca now claims that he pleaded

no contest to "section 784.03," implying that he was sentenced

for misdemeanor offenses. This is clearly untrue. Cuenca

plainly pleaded to felo nies; the statute is irrelevant. The

government had not charged Cuenca with battery and could not

have proved him guilty of felony battery. The crime was chosen

because the government refused to allow Cuenca to plead to

anything less than a felony, and C uenca was unwilling to plead

to a sex offense. Felony battery was the compromise on which

the parties agreed.

3 / O.Q. agreed, in response to a leading question on direct

examination, that Cuenca had "masturbated" him, but he did not

speak the word himse lf. Although no objection was made, the

testimony would have been more persuasive had the witness not

been spoon fed this rather important detail. Nevertheless, the

undersigned has not discounted the testimony, because it is

clear from the form of the qu estion that the Commissioner's

counsel, who conducted the direct examination, was quoting from

O.Q.'s prior statement to the police. Cuenca's attorney must

have been familiar with this prior statement. Had the

Commissioner's counsel been putting words in O.Q.'s mouth that

O.Q. had never spoken, Cuenca's counsel presumably would have

brought out that fact on cross - examination. He didn't.

4 / Because O.Q.'s testimony was not detailed, the undersigned

cannot find more than what is set forth in the text abo ve. Yet,

the witness was not confused or hesitant. O.Q.'s testimony was

distinctly remembered as far as it went, and his responses were

as precise and explicit as the questions required; that is, he

provided all the information his examiner sought to eli cit.

There is no good reason to suppose that O.Q. could not have

provided a more thorough narrative, had he been asked to do so.

His bare - bones account is explained by the fact that the

Commissioner's counsel, who conducted the direct examination,

asked few questions about the signal event and did not ask the

witness to elaborate upon or explain his answers, probably to

avoid embarrassing O.Q. It is possible that a vigorous cross -

examination would have exposed weaknesses sufficient to

discredit O.Q.'s te stimony. We will never know because Cuenca's

counsel declined to cross - examine O.Q.

5 / Although the record in this case lacks evidence concerning

steroid usage, it is fairly common knowledge that ingesting

synthetic testosterone can have adverse side ef fects on the male

sex organs. So, Cuenca's request, while outrageous, had some

logical connection to the subject matter —— sufficient

plausibility, that is, potentially to overcome the resistance of

an inexperienced and trusting young athlete.

6 / In or ar ound October 2013, Cuenca sent a series of text

messages to D.N., of questionable propriety. Cuenca admits that

the texts are unprofessional, which they are; worse than that,

they are immature. Cuenca comes across as a teenager, not a

teacher, in these t exts. Still, while the messages do not

reflect well on Cuenca, they are not lewd or lascivious, and

they contain no solicitations to engage in any type of

misconduct. In the most blameworthy of these texts, Cuenca

accuses D.F. of being dishonest about hi s (D.F.'s) sexual

activity in vulgar terms: "You get your meat wet. Then lie."

This puerile remark is unworthy of a teacher, but under the

circumstances, without more than has been shown here, its

utterance does not, of itself, constitute a disciplinabl e

offense.

7 / The Commissioner cited the March 23, 2016, version of the

rule, which postdates the events at issue. The relevant Florida

Administrative Code provisions, however, have not been

substantively revised since before the misconduct involved here

took place.

8 / Former rule 6A - 10.081(3)(h), quoted above in the text, is

substantively the same as current rule 6A - 10.081(2)(a)8., and

both are indistinguishable from Florida Administrative Code

Ru le 6B - 1.006(3)(h) (Dec. 29, 1998). Each iteration o f this

particular rule provision proscribes the exploitation of a

teacher - student relationship for personal gain or advantage.

9 / If, on appeal from final agency action, "the court finds that

the agency improperly rejected or modified findings of fact in a

recommended order, the court shall award reasonable attorney's

fees and reasonable costs to a prevailing appellant for the

administrative proceeding and the appellate proceeding."

§ 120.595(5), Fla. Stat.

1 0/ The terms "gross immorality" and "act of moral turpitude"

are currently defined in rule 6A - 10.083, which took effect after

the events at issue, on May 27, 2015; thus, these definitions

are not authoritative in this case. Similarly, section

10 1 2.795(1)(d), Florida Statutes (2019), specifies that

"engaging in or soliciting sexual, romantic, or lewd conduct

with a student or minor" constitutes a violation. Cuenca's

conduct clearly falls within this statutory language, but the

statutory language was not in effect at the time of the conduct.

See Ch . 2018 - 150, §§ 12 and 15, Laws of Fla.

1 1/ A newer version of the rule took effect on May 29, 2018, but

the undersigned must apply the disciplinary guidelines in effect

at the time of the alleged violations. Orasan v. Ag. for Health

Care Admin. , 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996).

1 2/ Florida Administrative Code Rule 6A - 10.081(3)(h) (Jan. 1,

2013) is identical to former rule 6B - 1.006(3)(h).

COPIES FURNISHED :

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

(eServed)

James C. Casey, Esquire

Law Offices of Slesnick and Casey, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

(eServed)

Gretchen Kelley Brantley, Executive Director

Education Pract ices Commission

Department of Education

Turlington Building, Suite 316

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)

Randy Kosec, Jr. , Chief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SU BMIT 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.