STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF FUNERAL DIRECTORS AND ) EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-425

)

CLARENCE E. PREVATT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Room 104, Collins Building, Tallahassee, Florida, on December 3, 1975, commencing at 9:30 a.m. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: KENNETH F. HOFFMAN, ESQUIRE

Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202

For Respondent: RAYMOND E. LAPORTE, ESQUIRE

408 Madison Street Tampa, Florida 33602

By Administrative Complaint Respondent was charged by the State Board of Funeral Directors and Embalmers with a violation of Section 470.12, Florida Statutes, grounds for revocation of license having been found guilty by a jury of a crime in this state involving moral turpitude by willfully and knowingly attempting to evade a large part of the income tax due and owing by him to the United State of America for the calendar years 1967, 1968, 1969, and 1970 by filing false and fraudulent income tax returns. On these grounds the State Board of Funeral Directors and Embalmers seek to revoke the licenses of Respondent and impose on him the cost of these proceedings.

ISSUES

1. Whether conviction of income tax evasion in a federal district court in Florida constitutes a violation of Chapter 470, Florida Statutes.

   
   

2. If such a conviction is a violation of Chapter 470, Florida Statutes, whether a license nay be revoked or suspended under Chapter 470, Florida Statutes, pending an appeal of such conviction.

3, Whether a hearing on the merits can be heard pending a decision on an appeal of a conviction.

FINDINGS OF FACT

1. Respondent Clarence E. Prevatt holds funeral directors license No. 650 and embalmers license No. 760.

   
   

2. Respondent was found guilty by a federal jury on November 14, 1974, of ten counts of willfully and knowingly attempting to evade and defeat a large part of the income tax due and owing by him to the United States of America and adjudged guilty of those crimes by court order dated December 20, 1974. Respondent has appealed his conviction to the United States Circuit Court for Fifth Circuit with oral arguments on said appeal having been heard December 1, 1975. The appeal is still pending.

   
   

3. Respondent does not contest the fact of his conviction by a federal jury but contends that a hearing on the merits should not be heard prior to the determination of his appeal of his conviction.

   
   

4. The Respondent was charged with the violation of the following subsections of Section 470.12, Florida Statutes:

   
   

   "470.12 Grounds for revocation of license.--

   1. EMBALMER.

      (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty by a jury of, or has pleaded guilty

      to after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases.

      * * *

      (k) The licensee has violated any provision of this chapter.

   2. FUNERAL DIRECTOR.

      (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty of, or has pleaded guilty to, after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

      * * *

      (p) The licensee has violated any provisions of this chapter."

      
      

5. Respondent Prevatt further contends: That a conviction of federal income tax evasion is not a crime in the State of Florida and is not a crime involving moral turpitude and that regardless of the outcome of the appeal his license should not be' suspended or revoked under Section 470.12, Florida Statutes, supra.

   
   

6. The Board contends: That a hearing on the revocation should proceed inasmuch as the statute does not require that Respondent be convicted but merely that he be found guilty under Section 470.12(2)(c), Florida Statutes, or that he be found guilty by a jury under Section 470.12(1)(c), Florida Statutes, and that the statutes do not require the Respondent be found guilty of a crime in Florida but merely requires the finding of guilty of a crime "in this state"; that the conviction by a federal jury in the City of Tampa, Florida, is a finding of guilty of a crime in this state; that Florida has laws prohibiting acts of perjury and laws making it a crime to intentionally deprive the true owner of money by false representations; that the condition of filing false and fraudulent income tax returns is an offense involving "moral turpitude"; that the legislature has the right to regulate the moral and character qualifications of professionals and has met the goal by enacting Section 470.12(1)(c), Florida Statutes, and Section 470.12(2)(c), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

7. After due notice the proceedings should have been and were properly held. The statute itself contemplates that there may be a delay in the enforcement of Chapter 470, Florida Statutes, by way of the failure to enter a judgment of conviction

   by the court or by way of a delay of enforcement of the statute by appeal to a higher court. The statutes specifically provide that a license may be suspended or revoked if the licensee has been found guilty or guilty by a jury without regard to whether judgment of conviction has been entered by the court having jurisdiction of such cases. Therefore, when licensee was found guilty by a federal jury he was in violation of Chapter 470, Florida Statutes, and the contention as to whether his license should be revoked or suspended pending an appeal is without merit inasmuch as he is subject to suffer the penalties upon being found guilty.

   
   

8. Section 470.12, F.S., provides that an embalmer's or funeral director's license may be revoked if a licensee has been found guilty or guilty by a jury of a crime in this state or any other state involving moral turpitude. When Respondent was found guilty by a federal jury on November 14, 1974 of ten (10) counts of willfully and knowingly attempting to evade and defeat a large part of his income tax he was found guilty of a crime involving moral turpitude.

   
   

9. Conviction for filing false and fraudulent income tax returns has been determined to be a crime involving "moral turpitude" in several states and by the federal courts. Jordan v. DeGeorge, 341 U.S. 223 (1951); Gambine v. Immigration and Naturalization, 419 F.2d 1355, 1358 (2nd Cir. 1970); Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957); Dayton Bar Association v. Carter, 319 N.E. 2nd 358, 359 (Ohio 1974); In re Mann, 154 S.E. 2d 860, 866 (W.Va 1967); In re Madden, 184 A. 2d 204, 205 (D.C. Mum. App. 1962); Barrese v. Ryan, 203 F. Supp. 880, 883 (D. Conm 1962); In re Seilas, 318 P. 2nd 961 (Wash. 1957); State ex re1. Nebraska State Bar Association v. Fitzgerald, 165 Neb. 212, 85 N.W. 2d 323 (Neb. 1957); In re Burrus, 364 Mo. 22, 258 S.W. 2d 625 (Mo. 1953); DeMoura v. City of Newark, 217 A. 2d 19,20 (N.J. App. 1966). "Moral turpitude" has been defined in Florida: "Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society," and further, "It has also been defined as anything done contrary to justice, honesty, principles, or good morals. . .", State v. Hollingsworth, 146 So. 66.

   
   

10. "The cancellation of a certificate on the ground that a practitioner has been convicted of a felony contemplated that the morally unfit, or those wanting in integrity, or those having lost sight of the high standards required. . . should not be permitted to continue in the practice", Page v. State Board of Medical Examiners, 193 So. 82.

    
    

    Webster's New Collegiate Dictionary:

    "a. of or relating to principles of right

    and wrong in behavior: ETHICAL b: expressing or teaching a conception of right behavior

    c: conforming to a standard of right behavior d: sanctioned by or operative on one's conscience or ethical judgment e: capable of right and wrong action. . . "

    
    

11. It is self evident that the willful and false representations of Respondent on his income tax returns is a crime of moral turpitude as a violation of Respondent's duty to society and is an act done contrary to honesty and good morals. Mail fraud, for example, has been held to be a crime involving moral turpitude. State v. Davis, 19 So. 491.

    
    

12. The legislature in protecting the general welfare of the people has the right to promulgate reasonable rules and regulations that shall control the practice of embalmers and funeral directors and has done so by enacting Chapter 470, Florida Statutes. It is shown by the record that Respondent was found guilty by a jury of a crime in this state. The fact that the jury was a federal jury sitting in Tampa, Florida, does not remove it from the operation of the statute which allows the revocation of a license if licensee has been found guilty of a crime in this state. The federal law applies to every citizen in this state. The adjudication of guilty of December 20, 1974 is a conviction of a crime in this and all other states which make up the composite United States of America.

    
    

13. It is the conclusion of this Hearing Officer that Respondent has violated Chapter 470, Florida Statutes, and that his license should be revoked.

RECOMMENDATION

It is recommended that embalmer license No. 760 and funeral director license No. 650 of Respondent Clarence E. Prevatt be revoked.

DONE AND ORDERED this 2nd day of March, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire

Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202

Raymond E. LaPorte, Esquire

408 Madison Street Tampa, Florida 33602

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS

In the Matter of the Revocation or Suspension of the license of

Clarence E. Prevatt, licensed, CASE NO. 75-425 Funeral Director and Embalmer

3402 26th Street, Tampa, Florida.

/

FINAL ORDER

This matter came to be heard by the Florida State Board of Funeral Directors and Embalmers on August 9, 1976 in Jacksonville, Florida, upon consideration of the Recommended Order issued by Delphene C. Strickland, Hearing Officer, dated March 2, 1976, as well as Exceptions filed thereto on behalf of Clarence E. Prevatt on March 15, 1976, and upon consideration of these matters and having heard argument of counsel and having been addressed by the licensee, Clarence E. Prevatt, the Board of Funeral Directors and Embalmers hereby makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent Clarence E. Prevatt holds funeral directors license No. 650 and embalmers license No. 760.

   
   

2. Respondent was found guilty by a federal jury on November 14, 1974, of ten counts of willfully and knowingly attempting to evade and defeat a large part of the income tax due and owing to him to the United States of America and adjudged guilty of those crimes by court order dated December 20, 1974. Respondent appealed his conviction to the United States Circuit Court for Fifth Circuit with oral arguments on said appeal having been heard December 1, 1975. On May 3, 1976, the Fifth Circuit issued as mandate its judgment affirming the judgment of the District Court.

3. Respondent does not contest the fact of his conviction by a federal jury but contends that a hearing on the merits should not be heard prior to the determination of his appeal of his conviction. His appeal has now terminated with affirmance of conviction by the Fifth Circuit.

   
   

4. The Respondent was charged with the violation of the following subsections of Section 470.12, Florida Statutes:

   
   

   "470.12 Grounds for revocation of license.--

   
   

   1. EMBALMER.

      (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty by a jury of, or has pleaded guilty to after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgment of con- viction has been entered by the court having jurisdiction of such cases.

      (k) The licensee has violated any provision of this chapter.

      
      

   2. FUNERAL DIRECTOR.

      (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty of, or has pleaded guilty to, after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

      (p) The licensee has violated any provisions of this chapter."

      
      

5. Respondent Prevatt further contends: That a conviction of federal income tax evasion is not a crime in the State of Florida and is not a crime involving moral turpitude and that regardless of the outcome of the appeal his license should not be suspended or revoked under Section 470.12, Florida Statutes, supra.

   
   

6. The Board contends: That a hearing on the revocation should proceed inasmuch as the statute does not require that Respondent be convicted but merely that he be found guilty under

   Section 470.12(2)(c), Florida Statutes, and that the statutes do not require the Respondent be found guilty of a crime in Florida but merely requires the finding of guilty of a crime "in this state"; that the conviction by a federal jury in the City of Tampa, Florida, is a finding of guilty of a crime in this state; that Florida has laws prohibiting acts of perjury and laws making it a crime to intentionally deprive the true owner of money by false representations; that the condition of filing false and fraudulent income tax returns is an offense involving "moral turpitude"; that the legislature has the right to regulate the moral and character qualifications of professionals and has met the goal by enacting Section 470.12(1)(c), Florida Statutes, and Section 470.12(2)(c), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

7. After due notice the proceedings should have been and were properly held. The statute itself contemplates that there may be a delay in the enforcement of Chapter 470, Florida Statutes, by way of the failure to enter a judgment of conviction by the court or by way of a delay of enforcement of the statute by appeal to a higher court. The statutes specifically provide that a license may be suspended or revoked if the licensee has been found guilty or guilty by a jury without regard to whether judgment of conviction has been entered by the court having jurisdiction of such cases. Therefore, when licensee was found guilty by a federal jury he was in violation of Chapter 470, Florida Statutes, and the contention as to whether his license should be revoked or suspended pending an appeal is without merit inasmuch as he is subject to suffer the penalties upon being found guilty.

   
   

8. Section 470.12, F.S., provides that an embalmer's or funeral director's license may be revoked if a licensee has been found guilty or guilty by a jury of a crime in this state or any other state involving moral turpitude. When Respondent was found guilty by a federal jury on November 14, 1974, of ten (10) counts of willfully and knowingly attempting to evade and defeat a large part of his income tax, he was found guilty of a crime involving moral turpitude.

   
   

9. Conviction for filing false and fraudulent income tax returns has been determined to be a crime involving "moral turpitude" in several states and by the federal courts. Jordan v. DeGeorge, 341 U.S. 223 (1951); Gambine v. Immigration and Naturalization, 419 F. 2d 1355, 1358 (2nd Cir. 1970); Tseung Chu

   v. Cornell, 247 F.2d 929 (9th Cir. 1957); Dayton Bar Association

   v. Carter, 319 N.E. 2nd 358, 359 (Ohio 1974); In re Mann, 154 S.E.

   2d 860, 866 (W.Va. 1967); In re Madden, 184 A. 2d 204, 205 (D.C.

   Mun. App. 1962); Barrese v. Ryan, 203 F. Supp. 880, 883 (D. Conn

   1962); In re Seijas, 318 P. 2d 961 (Wash. 1957); State ex rel Nebraska State Bar Association v. Fitzgerald, 165 Neb. 212, 85 N.W. 2d 323 (Neb. 1957); In re Burrus, 364 Mo. 22, 258 S.W. 2d 85

   N.W. 2d 323 (Neb. 1957); In re Burrus, 364 Mo. 22, 258 S.W. 2d 625

   (Mo. 1953); DeMoura v. City of Newark, 217 A. 2d 19, 20 (N.J. App. 1966). "Moral turpitude" has been defined in Florida: "Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society," and further, "It has also been defined as anything done contrary to justice, honesty, principles, or good morals. . . .", State v. Hollingsworth, 146 So.66.

   
   

10. The cancellation of a certificate on the ground that a practitioner has been convicted of a felony contemplated that the morally unfit, or those wanting in integrity, or those having lost sight of the high standards required. . . should not be permitted to continue in the practice," Page v. State Board of Medical Examiners, 193 So. 82.

    
    

    Webster's New Collegiate Dictionary:

    "a. of or relating to principles of tight and wrong in behavior: ETHICAL b: expressing or teaching a conception of right behavior c: conforming to a standard of right behavior d: sanctioned by or operative

    on one's conscience or ethical judgment

    e: capable of right and wrong action. . . "

    
    

11. It is self evident that the willful and false representations of Respondent on his income tax returns is a crime of moral turpitude as a violation of Respondent's duty to society and is an act done contrary to honesty and good morals. Mail fraud, for example, has been held to be a crime involving moral turpitude. State v. Davis, 196 So.491.

    
    

12. The legislature in protecting the general welfare of the people has the right to promulgate reasonable rules and regulations that shall control the practice of embalmers and funeral directors and has done so by enacting Chapter 470, Florida Statutes. It is shown by the record that Respondent was found guilty by a jury of a crime in this state. The fact that the jury was a federal jury sitting in Tampa, Florida, does not remove it from the operation of the statute which allows the revocation of a license if licensee has been found guilty of a crime in this

    state. The federal law applies to every citizen in this state. The adjudication of guilty of December 20, 1974 is a conviction of a crime in this and all other states which make up the composite United States of America.

    
    

13. Based upon the foregoing, the Board concludes that Respondent has violated Chapter 470, F.S., as charged.

RECOMMENDATION

NOW THEREFORE it is hereby ORDERED AND ADJUDGED that the licenses to practice funeral directing and embalming in Florida previously issued to Clarence E. Prevatt are suspended for a period of one (1) year from the date of issuance of this Final Order, and following this period of suspension said licenses shall be further suspended for an additional one (1) year period, said further suspension to be set aside resulting in probation.

Dated this 13th day of August, 1976, by order of the Florida State Board of Funeral Directors and Embalmers.

RONALD T. GIDDENS, PRESIDENT

Board of Funeral Directors and Embalmers

Copies furnished:

Kenneth F. Hoffman, Esquire Raymond E. LaPort, Esquire Joseph Jacobs, Esquire Donald D. Conn, Esquire

Docket for Case No: 75-000425

Orders for Case No: 75-000425