STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVIN D. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 00-1715

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF FUNERAL DIRECTORS AND )

EMBALMERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on July 7, 2000, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should deny Petitioner's application to take the Funeral Directors and Embalmers examination on the ground that Petitioner was convicted of crimes that directly relate to the ability to practice funeral directing within the meaning of Section 470.009(1)(c), Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated December 9, 1999, Respondent denied Petitioner's application to take the Funeral Directors and Embalmers Examination. Petitioner timely requested an administrative hearing. On April 20, 2000, Respondent referred the matter to the Division of Administrative Hearings ("DOAH") for assignment of an ALJ to conduct the hearing.

At the hearing, Petitioner testified in his own behalf, called no other witnesses, and submitted two exhibits for admission in evidence. Respondent called two witnesses and submitted one exhibit for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on July 19, 2000. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on July 31 and August 4, 2000.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the licensing and regulating funeral directors and embalmers in the state. Petitioner is 30 years old and has been working as an employee in three different funeral homes since 1996.

2. On October 12, 1999, Petitioner applied to take the licensing examination and to be licensed as a funeral director and embalmer. Respondent denied the application on the ground that Petitioner was convicted of four felonies between 1989 and 1994.

3. The parties stipulated that Petitioner satisfies each of the requirements for examination and licensure as a funeral director and embalmer except for Petitioner's criminal record. The only factual issue is whether one or more of the criminal offenses "directly relates to the ability to practice funeral directing or the practice of funeral directing" within the meaning of Section 470.006(1)(c).

4. Three of the four felonies at issue were third degree felonies for burglary of a conveyance, i.e., an automobile, in violation of Section 810.02(3). The fourth felony was a second degree felony for shooting into an occupied vehicle.

5. The exact dates of the offenses are not in evidence. Petitioner testified that all of the offenses occurred within six weeks of each other. The court documents in Respondent's Exhibit

   1 do not reflect the date of the offense but only the year of the case number and the date of adjudication and sentence.

6. Petitioner was 19 years old when he was sentenced for his first burglary on June 29, 1989. The court withheld adjudication of guilt for the first automobile burglary in 1989 in Case Number 89-7903CF and sentenced Petitioner to one year of probation. On February 12, 1993, the court revoked Petitioner's probation for a second automobile burglary in 1993 in Case Number 93-0543CFA. The court found Petitioner guilty of a second degree felony for shooting into an occupied vehicle in violation of Section 790.19. The court sentenced Petitioner to concurrent terms of eight months in the Duval County Jail for both felonies and gave Petitioner credit for 52 days served prior to

   sentencing. On March 24, 1995, Petitioner entered a plea of nolo contendere to a 1994 charge of automobile burglary. The court found Petitioner guilty and sentenced Petitioner to 364 days in the Duval County Jail.

7. Petitioner claims that the last offense actually occurred in 1993. He testified that the charge was filed in 1994 and that the sentencing occurred in 1995. The court documents are silent on those issues. Petitioner was 23 in 1993.

8. Living in a correctional institution "scared" Petitioner. He feared that he might spend the rest of his life in similar facilities. Petitioner decided that he wanted to live a productive life like other people.

9. After release from jail, Petitioner earned his high school diploma and then attended St. Petersburg Junior College. On August 1, 1997, Petitioner earned an Associate in Science Degree in Funeral Services.

10. Petitioner paid for his education through student loans and part-time employment. Petitioner first worked at a Kentucky Fried Chicken outlet for minimum wage. He then obtained a job paying $5.75 an hour at the Creal Funeral Home in St. Petersburg, Florida. Petitioner then worked for a second funeral home known as Memorial Park. After completing his education, Petitioner returned to Jacksonville and worked for Wendell Holmes Funeral Home.

11. Petitioner worked in all of the funeral home jobs to learn his profession. Each job paid minimum wage or slightly more than minimum wage.

12. Petitioner sees a license as a funeral director and embalmer as an opportunity to help people in their time of need and for Petitioner to integrate into society. The work Petitioner has performed makes him feel good about himself, especially when someone from a bereaved family tells Petitioner that he did a good job.

13. At the hearing, Petitioner admitted to committing the offenses and accepted personal responsibility. However, Petitioner has no fear that his criminal history would adversely affect his ability to practice funeral directing. On June 25, 1999, Petitioner passed the National Board Exam given by The International Conference of Funeral Service Examining Boards, Inc. Petitioner earned an overall exam score of 83.

    CONCLUSIONS OF LAW

14. DOAH has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

15. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that Petitioner satisfies the requirement in Section 470.006(1)(c). Section 120.57(1)(h); Florida Department of Transportation vs. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

16. Petitioner satisfied his burden of proof. Petitioner showed by a preponderance of the evidence that none of his prior

    criminal offenses directly relate to funeral directing or the practice of funeral directing.

17. Section 470.009(1)(c), in relevant part, authorizes Respondent to license Petitioner if Petitioner:

    . . . Had no conviction or finding of guilt, regardless of adjudication, for a crime which directly relates to the ability to practice funeral directing or the practice of funeral directing.

18. Petitioner testified that he does not fear that any of his prior criminal offenses will adversely affect his practice of funeral directing or his ability to practice funeral directing. Petitioner's testimony was credible and persuasive.

19. Petitioner's testimony was consistent with his conduct since his last offense. Approximately six or seven years have passed since Petitioner committed the last offense. During that time, Petitioner earned a high school diploma and an Associate in Science Degree in Funeral Sciences. He worked successfully in several employment positions in funeral homes and passed the National Board Exam. Petitioner has demonstrated his ability to practice funeral directing within the meaning of Section 470.009(1)(c).

20. Respondent's expert testified that the burglaries were related to the ability to practice funeral directing based on the agency's concern over theft of personal items of a deceased. Evidence that a person has committed burglary does not establish that the individual committed theft or intended to commit theft. Each crime requires proof of an element that the other does not. Cf. Gaber v. State, 684 So. 2d 189, 191 (Fla. 1996)(double

    jeopardy does not preclude conviction for burglary and theft arising from the same incident because each offense is defined to include separate elements). Accord Johnson v. State, 689 So. 2d 1065 (Fla. 1997); Duhart v. State, 724 So. 2d 1223, 1224 (Fla.

    1st DCA 1999) reh. denied; Billiot v. State, 711 So. 2d 1277, 1279 (Fla. 1st DCA 1998) reh. denied. In any event, Petitioner has worked for over four years in funeral homes without incident.

21. Respondent's expert testified that the offense of shooting into an occupied vehicle directly related to funeral directing because of the agency's concern that grieving persons would be pressured by a funeral director into making decisions they may not otherwise make. However, there is no specific evidence showing that the crime of shooting into an occupied vehicle has a greater relationship to the agency's concerns than does any other crime.

22. Nothing in the definition of the crime in Section

    790.19 or in the evidence of record shows the means used to commit the offense or any other facts and circumstances surrounding the offense. Without such information, there is no basis for showing that the offense directly relates to the ability to practice a profession. Department of Professional Regulation, Board of Nursing v. Kahn, DOAH Case Number 97-4751. Respondent adopted this principle in a final order and is bound by its final orders under the doctrine of administrative stare decisis. Gessler v. Department of Business and Professional Regulation, 627 So. 2d 501, 503-504 (Fla. 4th DCA 1993), rev. dismissed, 634 So. 2d 624 (Fla. 1994). Compare Nordheim v.

    Department of Environmental Protection, 719 So. 2d 1212, 1214 (Fla. 3d DCA 1998) reh. denied (holding that failure of the agency to follow its previous final orders without explanation for the deviation violated the holding in Gessler) with Caserta v. Department of Business and Professional Regulation, 686 So. 2d 651, 653 (Fla. 5th DCA 1996) (holding that subsequent legislative amendments altered the beginning date for indexing agency final orders and making them available to the public).

23. Respondent presented no evidence addressing the temporal limits of Section 470.009(1)(c). Respondent implicitly assumes that the prohibition in Section 470.009(1)(c) operates for the life of the applicant. If the prohibition in Section 470.009(1)(c) is not limited in time, a person who has committed an offense prohibited in Section 470.009(1)(c) would never qualify for a license regardless of the amount of time that has elapsed since the offense and regardless of the evidence of rehabilitation.

24. When Petitioner committed his first offense in 1989, Petitioner was 19 years old. He was 23 years old when he committed his last offense. The difference between the ages of

23 and 30 may be significant in an individual case. Petitioner demonstrated that the difference in age is significant in this case. Petitioner earned a high school diploma and an associate arts degree, worked in his chosen profession, supported himself through school, and passed the National Board Exam.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a final order finding that Petitioner satisfies the requirements of Section 470.009(1)(c).

DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2000.

COPIES FURNISHED:

Barbara Rockhill Edwards, Esquire Department of Legal Affairs

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Madeline Smith, Executive Director Board of Funeral Directors

and Embalmers Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

Docket for Case No: 00-001715

Orders for Case No: 00-001715