STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6822

)

SHERRY CURRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was considered upon the record by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32202

For Respondent: Sherry Curry, pro se

4260 Northwest 170 Street Carol City, Florida 33055

PRELIMINARY STATEMENT

The Administrative Complaint and Election of Rights form for this matter was served on Ms. Curry by certified mail. Ms. Curry signed for the complaint on October 30, 1989, as shown by the restricted delivery return receipt from the United States Postal Service. The articles had been addressed to her at 2000 Northwest 32nd Avenue, Miami, Florida 33056. Ms. Curry failed to take any action with respect to the Administrative Complaint, and on December 11, 1989, the Executive Director of the Education Practices Commission referred the matter to the Division of Administrative Hearings for a declaration of default under Section 231.262(5), Florida Statutes, and Rule 6B-11.004, Florida Administrative Code. An Order of Dismissal was entered by the Director of the Division of Administrative Hearings on December 13, 1989, because no response to the Administrative Complaint had been received.

On December 12, 1989, the Education Practices Commission received a Motion for an Extension of Time from Ms. Curry, seeking an additional 90 days in which to obtain an attorney. That motion also stated that there were allegations in the Administrative Complaint that were not true; she specifically denied that she had obtained her teaching certificate through fraudulent means. The motion contained no certificate of service or any address for Ms. Curry.

Ms. Curry also filled out the Election of Rights form, and on that form she stated that she disputed the allegations of paragraphs 5, 6, 7, 8, 9, and 10 of the Administrative Complaint. Despite other orders which have been sent to Ms. Curry, that November 13, 1989, Motion for Extension of Time was the last that has been heard from Ms. Curry.

Based on the Motion for Extension of Time, the matter was assigned to a Hearing Officer at the request of the Education Practices Commission. This had the effect of vacating the default entered by the Director of the Division on December 13, 1989.

A review of the Administrative Complaint, and the Election of Rights form disclosed that Ms. Curry did not dispute paragraph 4 of the Administrative Complaint. In that paragraph, the Commissioner of Education had alleged that

[o]n or about February 5, 1988, the Respondent entered a plea of guilty to possession with intent to distribute cocaine in violation of Title 21, United States Code Section 841(a)(1), was adjudicated guilty, was sentenced to a suspended sentence, placed on 5 years probation and ordered to pay $50.00 costs. See, United States of America vs. Sherry Curry, U.S. District Court for the Southern District of Florida, Case No: 87-470-CR, Spellman.

On January 25, 1990, an order to show cause was directed to Ms. Curry at the address which had been contained on the return receipt from the U.S. Postal Service. The order required her to show cause, within 21 days, why the matter should not be returned to the Education Practices Commission because she had not disputed the allegations of paragraph 4. No response to that Order was filed.

Instead, the Order was returned by the Postal Service with the indication that there is no such street number.

In an effort to contact Ms. Curry, an investigator for the Education Practices Commission contacted Ms. Curry's mother at 4260 Northwest 170 Street, Carol City, Florida 33055, and was told that Ms. Curry would receive mail at that address. Consequently, an Order Requiring Address and Order to Show Cause was sent to Ms. Curry at her mother's address on March 9, 1990. That Order repeated the requirements of the January 25, 1990, Order to Show Cause, and also required Ms. Curry to provide the Division of Administrative Hearings with a current mailing address. That letter has not been returned by the U.S. Postal Service. No response to the Order Requiring Address and Order to Show Cause has been received, although the time for responding has expired.

More than 90 days has passed from the filing by Ms. Curry of her Motion for Extension of Time with the Education Practices Commission, but she has taken no further action with respect to this case. She has either ignored the Order Requiring Address and Order to Show Cause, or has completely failed to keep the Division of Administrative Hearings (or the Education Practices Commission) aware of her current address. Based on the lack of any response to the Orders already issued, it would be a useless act to set this case for hearing.

FINDINGS OF FACT

1. Based upon Section 120.65(11), Florida Statutes, and Ms. Curry's failure to dispute the allegations of paragraph 4 of the Administrative Complaint (quoted above), that count will be treated as admitted.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

3. The Education Practices Commission has the authority to discipline a teaching certificate, including the revocation of a certificate when a teacher "has been guilty of gross immorality or an act involving moral turpitude". Section 231.28(1)(c), Florida Statutes. According to the statute, "a plea of guilty in any court . . . shall be prima facie proof of grounds for revocation of the certificate". Section 231.28(2), Florida Statutes. The plea of guilty and the adjudication of guilt on the charge of possession of cocaine with the intent to distribute it, in violation of Title 21, United States Code, Section 841(a)1. have been established, not only on a prima facie basis, but fully established by Ms. Curry's admission and failure to participate in the administrative proceeding she asked for. They form an adequate basis upon which to revoke the teaching certificate held by Ms. Curry.

RECOMMENDATION

It is recommended that a final order be entered by the Education Practices Commission revoking the teaching certificate of Sherry Curry.

RECOMMENDED this 3rd day of April, 1990, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.,

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:

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Martin Schaap, Administrator Education Practices Commission

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32202

Sherry Curry

4260 Northwest 170 Street Carol City, Florida 33055

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Docket for Case No: 89-006822

Orders for Case No: 89-006822