STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL AND OCCUPATIONAL ) REGULATIONS, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2072

)

FRANKLIN D. ZIEGLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Conference Room, Suite 205, 6501 Arlington Expressway, Jacksonville, Florida, at 9:30 A.M., March 29, 1978.

APPEARANCES

For Petitioner: Michael J. Dewberry, Esquire

1300 Florida Title Building Jacksonville, Florida 32202

For Respondent: John London Arnold, Esquire

919 East Adams Street Jacksonville, Florida 32202

ISSUE

1. Whether or not the Respondent, Franklin D. Zeigler, as a licensed embalmer violated Section 470.l2(1)(c), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342 (fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television)

   
   

2. Whether or not the Respondent, Franklin D. Zeigler, as a licensed funeral director violated Section 470.12(2)(c), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371(conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342(fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio or television).

3. Whether or not the Respondent, Franklin D. Zeigler, as a licensed embalmer violated Section 470.12(1)(k), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342 (fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television).

   
   

4. Whether or not the Respondent, Franklin D. Zeigler, as a licensed funeral director violated Section 470.12(2)(p), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 J.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1,342 (fraudu1ent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television).

FINDINGS OF FACT

1. At all times pertinent to the complaint Franklin D. Zeigler held Funeral Director's license no. 1789 and Embalmer's license no. 1986, held with the State of Florida, Department of Professional and Occupational Regulation, State Board of Funeral Directors and Embalmers.

   
   

2. On July 29, 1977, the Respondent was sentenced to four years in prison for violations of Title 18 U.S.C. 371, 1341, 1342 and 1343. This judgement and sentence was entered in the United States District Court for the Middle District of Tennessee based on a verdict of guilty, arrived at in Docket No. 76-227-NA- CR. A copy of this judgement and commitment order may be found as Petitioner's Exhibit 1, admitted into evidence. These federal crimes specifically pertain to the following:

   
   

   1. 18 U.S.C. 371 (Conspiracy to commit an offense or to defraud the United States)

   2. 18 U.S.C. 1341 (Mail fraud)

   3. 18 U.S.C. 1342 (Fraudulent use of a fictitious name)

   4. 18 U.S.C. 1343 (Fraud by wire, radio, or television)

      
      

3. Based on the action taken in the United States District Court for the Middle District of Tennessee, the Petitioner has charged the Respondent with violations of Chapter 470, Florida Statutes, pertaining to both his Funeral Director's and Embalmer's license. The action taken against his Embalmer's license is under Sections 470.12(1)(c)and (1)(k), Florida Statutes; and the action taken against the Funeral Director's license is in accordance with Sections 470.12(2)(c) and (2)(p), Florida Statutes.

   
   

4. Section 470.12(1)(c), Florida Statutes, holds that it is a violation for an Embalmer to have been found guilty by a jury after being charged with a crime involving moral turpitude, and this is without regard as to whether a judgement of conviction has been entered by the court having jurisdiction in the case. Likewise, Section 470.12(2)(c), Florida Statutes, sets forth the violation in the same language as found in Section 470.12(1)(c) , Florida Statutes, the only difference being that this violation pertains to the license held by a Funeral Director.

5. An examination of the nature of the judgement and commitment order for the United States District Court for the Middle District of Tennessee demonstrates that a jury or a court acting as the trier of the fact has found the Respondent guilty of crimes involving moral turpitude, and those findings establish a violation of Section 470.12(1)(c) and (2)(c) , Florida Statutes.

   
   

6. The Petitioner failed to make any other presentation in terms of a factual allegation. Therefore, the allegations against the Respondent's license as an Embalmer and Funeral Director respectively, under the conditions set forth in Section 470.12(1)(k) and (2)(p), Florida Statutes, have not been shown because those two substantive violations are premised upon the finding that the licensee has violated any provision of the Chapter and may only be read to pertain to provisions not already addressed factually and by allegation in some other part of the complaint. In this case there was a contemporaneous allegation of violation of Sections 470.12(1)(c) and (2)(c) , Florida Statutes. Therefore, proof of a violation of Sections 470.12(1)(k) and (2)(p), Florida Statutes, does not lie.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

8. The Petitioner's Exhibit 1 is hereby admitted into evidence.

   
   

9. A review of the facts in this cause demonstrates that the Respondent has violated Section 470.12(1)(c), Florida Statutes, and is answerable for the violation.

   
   

10. A review of the facts in this cause demonstrates that the Respondent has violated Section 470.12(2)(c), Florida Statutes, and is answerable for the violation.

    
    

11. A review of the facts in this cause demonstrates that the Petitioner has failed to show a violation of Sections 470.12(1)(k) and (2)(p), Florida Statutes, because the Petitioner has failed to show that the Respondent has violated any provisions of Chapter 470, Florida Statutes, other than those covered by the contemporaneous violations established in the above numbered paragraphs of these conclusions of law.

RECOMMENDATION

In the course of the hearing before the undersigned the parties were given the opportunity to present matters in aggravation and mitigation, and availed themselves of such opportunity. Having considered those representations in view of the facts in this cause, and in particular the fact that the Respondent had been held in violation of the laws of the Petitioner by a final order of December 17, 1976; which violation was similar in nature to the violation herein, and further for which violation the Respondent was given a suspended sentence; it is recommended that the licenses of the Respondent, Franklin D. Zeigler, Funeral Director's license no. 1789 and Embalmer's license no. 1986, be revoked.

DONE AND ENTERED this 18th day of April, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202

John London Arnold, Esquire 919 East Adams Street Jacksonville, Florida 32202

Docket for Case No: 77-002072

Orders for Case No: 77-002072