Findings Of Fact Respondent has been licensed in Florida since December 16, 1994, as a licensed funeral establishment, holding license number FH 0002113. Edgar Harrell, who is also known as Ed Harrell, has never been a licensed funeral home director in Florida. Mr. Harrell owns Respondent and has owned at least part of Respondent at all material times. Respondent advised Petitioner of a name change. By letter dated January 31, 1995, to "Ed Harrell and Jerome Smith, Owners, Ed Harrell Funeral Home," Petitioner informed Respondent that its request for a name change had been processed and was effective as of January 31, 1995. The name was changed from "Smith-Harrell Funeral Services" to "Ed Harrell Funeral Home." The name change reflected the purchase by Mr. Harrell of Jerome Smith's ownership interest in Respondent. Petitioner's investigator conducted an inspection of Respondent's facility on March 1, 1995. He completed an inspection form reflecting the results of the inspection. The items corresponding to Count I are 134, 142, and 143. The item corresponding to Count II is 139. The item corresponding to Count III is 129. The investigator marked each of these items as not satisfactory. Item 134 is: the "funeral establishment/director providing cremation services obtaining signed declaration for disposition of remains." The form states in handwriting, "Ed signed." Item 134 references Rule 61G8-31.001(2). Item 142 is: the "customer's written agreement contains name, address, telephone number of establishment and disclosure statement." Item 142 references Section 470.035(4). Item 143 is: the "customer's written agreement dated and contains signatures of customer and funeral director." Item 143 references Section 470.035(5). Item 139 is: the "itemized price list of merchandise/services with establishment name, address and telephone available." The form states in handwriting, "Old estab[lishment] name." Item 139 references Section 470.035(1) and (2). Item 129 is: the "establishment/funeral director in charge name displayed at public entrance." Item 129 references Rule 61G8-21.003(6). The investigator marked other items as unsatisfactory on the inspection form, but these were not cited in the Administrative Complaint. Petitioner proved by clear and convincing evidence that Mr. Harrell signed an Authorization for Cremation and Disposition. The agreement was dated December 15, 1994, and Mr. Harrell signed as the "licensed representative" of Respondent. Petitioner failed to prove by clear and convincing evidence that the customers' written agreements with Respondent failed to contain the correct name of Respondent. The agreements introduced into evidence bore the name, "Smith- Harrell Funeral Services," but the agreements predated the effective date of the name change to "Ed Harrell Funeral Home." The proof was inconclusive as to blank form agreements. However, Petitioner proved by clear and convincing evidence that the customers' written agreements with Respondent were signed by Mr. Harrell, rather than the licensed funeral director. In three cases, Mr. Harrell signed such agreements on behalf of Respondent. Mr. Harrell was at all times a controlling person of Respondent. Petitioner thus proved by clear and convincing evidence that Respondent aided and abetting an unlicensed person in the practice of a licensed activity in the matters set forth above. Petitioner proved by clear and convincing evidence that Respondent was still using an old price list, with the name of "Smith-Harrell Funeral Services," at the time of the inspection. Petitioner proved by clear and convincing evidence that Respondent failed to display its name or the name of a licensed funeral director at the public entrance at the time of the inspection. Neither Respondent nor Mr. Harrell committed any fraud or deceit, nor did either party attempt to commit any fraud or deceit, in the matters set forth above. Mr. Harrell simply had failed to obtain a new price list and new name display by the time of the inspection, which was little more than a month following the approval of the name change. However, Mr. Harrell offered no excuse for signing documents requiring the signature of a licensed funeral director.
Recommendation It is RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order finding Ed Harrell Funeral Home guilty of two violations of Section 470.036(1)(h) and one violation of 470.036(1)(n) and imposing penalties of a reprimand, administrative fine of $750, and costs of the entire investigation and prosecution. ENTERED on May 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 22, 1996. COPIES FURNISHED: Susan Foster, Executive Director Board of Funeral Homes and Embalmers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Attorney Miriam S. Wilkinson Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Edgar Harrell 2435-C Fowler Street Ft. Myers, Florida 33906
The Issue Whether Respondent, Gibraltar Mausoleum Corporation, has met the requirements of Chapter 497, Florida Statutes (1991), and the applicable rules to acquire control of an existing cemetery, Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of licensing and regulating cemetery companies in the State of Florida pursuant to Chapter 497, Florida Statutes. David V. Toale owns burial rights in Palms Memorial Park. Venice Memorial Gardens, Inc. is an existing cemetery company located in Sarasota County, Florida which owns, controls and is licensed to operate the cemetery known as Venice Memorial Gardens. Brown, Edwards, Toale Funeral Home, Inc. d/b/a Manatee Markers and Cemetery Brokers, is a funeral home and cemetery broker located in Manatee County, Florida that owns burial rights in Palms Memorial Park. Toale Brothers, Inc. is a funeral home with locations in Sarasota County, Florida and Manatee County, Florida. Brown and Sons Funeral Home, Inc. is a funeral home located in Manatee County, Florida. Hillcrest, a Florida Corporation, is an existing cemetery company which owns, controls and is licensed to operate a perpetual care cemetery known as Palms Memorial Park located in Sarasota County, Florida. Arbor Capital, Inc., a Delaware corporation, is the owner and parent company of Hillcrest by virtue of its ownership of all outstanding stock of Hillcrest. A second company also known as Arbor Capital, Inc., a Ontario, Canada corporation, is the parent and owner of Arbor Capital, Inc., the Delaware corporation. Gibraltar is an Indiana corporation which: (a) owns and operates cemeteries; (b) owns and operates funeral homes; and (c) constructs funeral homes and mausoleums. Gibraltar has been qualified to do business in the State of Florida since October 14, 1988, and at the time it proposed to purchase the assets of Hillcrest, Gibraltar was an existing legal entity. On July 31, 1992, Gibraltar filed a Form DBF-F-35, Application For Authority To Acquire Control Of An Existing Cemetery Company (Application), with the Department for authority to purchase the assets of Hillcrest Cemetery, an existing cemetery company, and thereby gain ownership and control of the cemetery known as Palms Memorial Park. Several documents were attached to the Application, including the Agreement which had been executed by Hillcrest Cemetery, Inc. as Seller, Arbor Capital, Inc. as Shareholder for Hillcrest Cemetery, Inc., Arbor Capital Inc., an Ontario Corporation, and Gibraltar Mausoleum Corporation, as the Buyer. By this Agreement, Gibraltar is purchasing the assets of Hillcrest which includes all of the cemetery property known as Palms Memorial Park and assumes all liabilities for pre-need contracts and pre-sold merchandise. Gibraltar intends to keep all trust funds in accordance with state law and regulations and shall insure that Palms Memorial Park is maintained perpetually. The sales price of the assets and certain other sales-related figures were blacked-out in the copy of the Agreement submitted by Gibraltar with its Application to the Department. Gibraltar redacted these figures because, being a private company, it sought to keep these figures from the public record. However, in any event, a copy of the Agreement without any figures being redacted was received as evidence in this case. By letter dated August 6, 1992, the Department advised Gibraltar that certain required documents had not been submitted with the Application and that Question 4 of the Application was incomplete. It is the Department's position that it has authority to review and approve such applications without the benefit of the sales price and other sales-related figures, and had done so in the past. Therefore, the Department did not require Gibraltar to furnish the figures that had been redacted in the Agreement prior to tentative approval of its Application. Also, it is the Department's position that had the redacted figures been available before the tentative approval, the Application would still have been approved. Subsequently, Gibraltar furnished the Department the information and documents requested in the Department's letter of August 6, 1992, which brought the Application in compliance with Rule 3D-30.017, Florida Administrative Code. By letter dated October 16, 1992, the Department notified Gibraltar that the Department had tentatively approved the Application for the assets purchase of Hillcrest by Gibraltar subject to the notice of intent being advertised in the Florida Administrative Weekly. Tentative approval of the Application was the result of an investigation by the Department wherein it was determined that Gibraltar had met the requirements of Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar. The Department did not review Gibraltar's Application under the provisions of Sections 497.006 or 497.027, Florida Statutes. The Notice Of Intent To Approve A Cemetery Application was advertised in the Florida Administrative Weekly, Volume 18, Number 40, October 2, 1992. However, the Department advertised a revised Notice Of Intent To Approve A Cemetery Application in the Florida Administrative Weekly, Volume 18, Number 49, December 4, 1992, because the notice in the first advertisement was not clear as to which entity was the seller and which entity was the purchaser. The Department did not give any other form of notice of its intent to approve the Application. Specifically, the Department did not give direct notice to any individual or company that owned burial rights in Palms Memorial Park. Form DBF-F-35, incorporated by reference in Rule 3D-30.017, Florida Administrative Code, is the application form required under Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, to be filed by an applicant seeking to acquire control of an existing cemetery by acquiring the stock or purchasing the assets of the existing cemetery company that owns, controls and is licensed to operate the existing cemetery. Form DBF-F-35, is also required under Section 497.008, Florida Statutes, when there is an application for internal change of control among stockholders of an existing cemetery company that owns, controls and is licensed to operate an existing cemetery. The Department considers Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, as its authority for allowing external change of control of an existing cemetery where either the stock is acquired or the assets purchased of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery. The Petitioners, on the other hand, consider Section 497.006(2) and (3), Florida Statutes, as the Department's authority for such external change of control of an existing cemetery where only the assets of an existing cemetery company that owns, controls and is licensed to operate the existing cemetery are being acquired. The Department, however, considers Section 497.006(2) and (3), Florida Statutes, as applying to the establishment of a cemetery company for the purpose of being licensed to operate an entirely new cemetery if the Department establishes a need for a new cemetery in the community. In situations such as the instant case, the Department reclaims the licence from the cemetery company previously exercising control over the existing cemetery and issues a new licence in the name of the cemetery company gaining control of the existing cemetery. Petitioners contend that Section 497.027(2), Florida Statutes, applies to Gibraltar's Application. However, the Department has interpreted that subsection as applying only in situations where the cemetery company or other purchasing entity is attempting to use the land currently dedicated for cemetery use for something other than as a cemetery. There was no evidence that Gibraltar intended to use Palms Memorial Park for anything other than as a cemetery. Since late 1979, the Department has been approving the external change of control of an existing cemetery where the assets of the existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, are being purchased. Until about five years ago, the acquisition of an existing cemetery was accomplished by purchasing the assets of the existing cemetery company owning, controlling and being licensed to operate the existing cemetery, rather than acquiring the existing cemetery company's stock. Since October 1, 1989, the Department has approved 16 asset purchases and 27 stock purchases of existing cemetery companies, that owned, controlled and were licensed to operate existing cemeteries, under Section 497.007, Florida Statutes. Ten of the 27 stock purchases were a lump sale to one corporation. There was no evidence that the Department had experienced any regulatory problems in approving the external change of control of existing cemeteries where there was an asset acquisition of the existing cemetery company that owned, controlled and was licensed to operate the existing cemetery. There was no evidence that the external change of control of an existing cemetery where there was an asset acquisition of the existing cemetery company, that owned, controlled and was licensed to operate the existing cemetery, resulted in any type of negative impact on the public. Gibraltar currently owns and operates 14 of the approximately 164 cemeteries in the state of Florida and 51 cemeteries throughout the United States. Gibraltar is one of the larger companies owning cemeteries and funeral homes in the United States. Gibraltar's corporate structure includes a cemetery division, funeral division and a construction division. Gibraltar is a closely held, family-owned company whose stockholders have worked in the cemetery business their entire careers. None of the stockholders have ever been subject to a criminal prosecution or criminal enforcement action, or had a license revoked, denied or suspended. Gibraltar intends to have the personnel and management that is presently assigned to Manasota Memorial Park to manage and operate Palms Memorial Park while continuing to manage and operate Manasota Memorial Park. Gibraltar has the necessary experience to operate Palms Memorial Park. The Department examined Gibraltar's financial statement which was attached to the application and reviewed the financial statements of the shareholders which were included in the application. Gibraltar is a financially solvent company with a net worth of over $34,000,000.00. The purchase of the assets of Hillcrest, as proposed in the Application and set out in the Agreement, will be a cash transaction requiring no mortgages or other encumbrances on the property. Gibraltar has the financial responsibility necessary to purchase and operate Palms Memorial Park. There are seven licensed cemeteries in the adjacent Florida counties of Manatee and Sarasota. Gibraltar owns and is licensed to operate three of those cemeteries. They are: Manasota Memorial Park, Inc. and Mansion Memorial Park, Inc., located in Manatee County, Florida, and Gulf Pines Memorial Park, Inc. located in Sarasota County, Florida. On December 17, 1988, Manasota Memorial Park, Inc. entered into a Joint Settlement Stipulation For Consent Order with the State of Florida, Department of Insurance wherein, among other things, Manasota Memorial Park, Inc. agreed to pay an administrative fine of $7,500.00 but did not admit to any violation of law. On January 11, 1989, the Insurance Commissioner signed a Consent Order incorporating the terms of the Joint Settlement Stipulation. The Attorney General's office of the State of Minnesota commenced an investigation into Gibraltar's business practices in Minnesota. Gibraltar agreed to settle this matter for approximately $75,0000.00 but did not admit to any violation of law. Approximately two years later Gibraltar sold its business in Minnesota and no longer has any business interest in Minnesota. Neither the settlement with the State of Minnesota nor the settlement with the State of Florida, Department of Insurance was disclosed in Question 16 of Gibraltar's Application which provides in pertinent part as follows: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, denied , or otherwise act [sic] against? At the time of the tentative approval of the Application, the Department had only checked for consumer complaints filed against Hillcrest. Subsequently, the Department checked for administrative or regulatory actions that had been filed against Gibraltar. There were no administrative or regulatory actions pending (open cases) against Gibraltar. No enforcement actions had been filed against Gibraltar by the Department's Bureau of Examinations. Since the review of Gibraltar's trust accounts is an ongoing process by the Department, the Department's review of the Application did not include a review of Gibraltar's trust accounts per se. However, the Department relied on a review of all administrative actions to determine if any administrative action had been taken against Gibraltar for trust account deficits. There had been no administrative action taken against Gibraltar for trust account deficits. From January, 1988 through December 1992, there were 139 of the 667 consumer complaints or inquires filed with the Department with regard to cemetery companies filed against Gibraltar or its subsidiaries. The Department found no violations, had no jurisdiction, took no action or received inquires or information requests in 110 of the 139 instances. During this same period, Gibraltar entered into 70,000 contracts with customers in Florida. Gibraltar enforces ethical sales policies and has a system designed to resolve customer complaints. There was no competent substantial evidence to show that Gibraltar's salespersons used "high pressure" sales tactics. There was no evidence that the Department had ever taken any action against a license of a cemetery owned by Gibraltar or one of its subsidiaries. There was no competent substantial evidence to show that Gibraltar's acquisition of Palms Memorial Park would adversely affect competition in the local market of Sarasota and Manatee, County. It is the Department's position that competition is not an issue to be considered when reviewing an application for transfer of control of an ongoing cemetery pursuant to Section 470.007, Florida Statutes. There is competent substantial evidence to show that Gibraltar has met the requirements of Section 497.007, Florida Statutes, and Rule 3d-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar.
Conclusions Petitioners' exception "B". Conclusions of Law omitted by Hearing Officer are hereby rejected. Each of these proposed legal conclusions are legally irrelevant to the issues involved in this case. Petitioners' contend that: Proper notices were not given by the Department. The Department specifically rejects this legal conclusion. The Department complied with Section 497.091, Florida Statutes (1991) in publishing its notice. Petitioners' allegations that additional information was necessary and that due process required additional circulation of the notices is rejected. The Department's interpretation of Section 497.091, Florida Statutes (1991) is a permissible one, and thus, Petitioners exception is hereby rejected. & 3. Petitioner's arguments that the Hearing Officer should have reached a legal conclusion as to whether a Florida cemetery company may own more than one cemetery and whether a Florida cemetery company may engage in activities outside the ones permitted under Section 497.033, Florida Statutes are legally irrelevant in this case and thus, are rejected. Petitioner's proposed legal conclusion as to whether the Department had the ability to approve either a change of the settlor and/or the transfer of irrevocable care and maintenance trust funds, with or without the consent of the affected beneficiaries/owners of burial rights is legally irrelevant in this case and, thus, is rejected. Petitioners' proposed conclusion of law as to whether the Department may issue a license under 497.007, Florida Statutes has been ruled on throughout the Hearing Officer's Conclusions of Law. Further, see ruling on exceptions to paragraph (21) of the Findings of Fact, infra. 7. & 8. Petitioners' Proposed Conclusions of Law numbered 6 and 7 as to whether a Florida cemetery company has a continuing obligation to care and maintain the perpetual care cemetery and whether perpetual care cemetery land may be transferred without the approval of the affected owners of burial rights are legally irrelevant to this proceeding. Petitioners proposed conclusion of law numbered eight as to whether Section 497.027, Florida Statutes (1991) is the exclusive authority for the sale of Florida perpetual care cemetery lands was previously ruled on within the Hearing Officer's conclusions of law. Further, the Department rejects this proposed legal conclusion. See ruling on exception to paragraph (21) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 9 as to whether the Department was required by law to consider economic matters, matters of competition, and/or the impact upon the public, in investigating the application was previously ruled upon by the Hearing Officer within his Recommended Order. Further, the Department rejects this proposed conclusion. See ruling on exception to paragraph (17) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 10 as to whether the Department followed Rule 3D-30.017, Florida Administrative Code in approving the sale of the perpetual care cemetery land know as Palms Memorial Park was previously ruled upon by the Hearing Officer in his Recommended Order. The Department rejects this proposed legal conclusion. Further, see ruling on exception to paragraph (21) of the findings of fact infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioners and allowing Gibraltar to purchase the assets of Hillcrest as detailed in the Agreement and be issued a license to operate Palms Memorial Park. RECOMMENDED this day 25th of January, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 25th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6635, 92-6884, 92-6885 AND 92-7886 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioners, Venice Memorial Gardens, Inc., Toale Brothers Inc., and Brown and Sons Funeral Home, Inc.'s Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2-7(1,7,8,9,10 & 12, respectively); 8,9 & 11(28);12(10);19(35); 20(36); 21(35); 24(30); 27- 30(37,38,41 & 28, respectively);32(3); 36(2); 37(19); 39 & 41(4); 42(19); 43(5); 45(6); 46(1); 47(11); 48(20); 49(12); 50(13); 51(25); 55-56(20); 60(12); 61(17); 76-79(18); and 80(19). Proposed finding of fact 1 is covered in the Statement of The Issue. 3. Proposed findings of fact 10, 13 - 17, 22, 23, 25, 31, 33, 34, 35, 38, 40, 44, 57, and 63 - 75 are neither material nor relevant. Proposed findings of fact 52, 53, 54, 58, 59 and 62 are legal opinions and should be covered in the Conclusions of Law. Proposed findings of fact 18 and 26 are not supported by competent substantial evidence in the record. Petitioners, David V. Toale and Brown, Edwards, Toale Funeral Home, Inc.'s Proposed Findings of Fact: 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: A.1-A.6(18,19, otherwise neither material nor relevant); B.7-B.10(7,12, otherwise neither material nor relevant); C.11-C.40(10,12,13,28,30,32,35,36,37, otherwise neither material nor relevant, cumulative or not supported by competent evidence in the record)); D.41-D.44(7,8,12 & 13, otherwise neither material nor relevant, cumulative, subordinate or unnecessary); E.45-E.50(3, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); F.51-F.53(2,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); G.54-G.57(4,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); H.58-H.60(5, otherwise neither material nor relevant); I.61-I.80(11,15,17,20,21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); J.81-J.85(21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); K.86- K.91(20,35, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); L.92-K.93(17,21); M.94-M.100(8,12,17, otherwise neither material nor relevant); M.101-M.103(11,12,13, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); N.104-M.107(21, otherwise neither material nor relevant, cumulative, or unnecessary); O.108- O.113 (29,30,36,37,38,39,40 & 41, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); and P.114-P.120(35, otherwise neither material nor relevant, cumulative, unnecessary or not supported by competent substantial evidence in the record). Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(12); 2(7); 3(21); 4- 6(23-25); 7(12); 9(24); 10(23); 11(20); 12-14(21); 15-16(25); 17(26); and 18(27). Proposed findings of fact 8 and 19 are neither material nor relevant. Respondent, Gibraltar's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2(21); 3(23- 25); 4(17); 5(14,16); 6(17); 7(18); 8(21,22); 9(21); 10(25); 11(25-27); 12(12); 14(12); 16(21); 17-19(39-41); 20(41); 21(41); 23(29,43); 24-26(32-34); 27(28); 28(31); 29(13,15); and 30-33(44,45). Proposed findings of fact 13, 15 and 22 are neither material nor relevant. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Edwin R. Hudson, Esquire Henry & Buchanan, P. A. 117 South Gadsden Street Tallahassee, Florida 32301 James R. Brewster, Esquire Suite 203, The Walker Building 547 North Monroe Street Tallahassee, Florida 32301 Bridget L. Ryan Assistant General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Harry R. Detwiler, Jr., Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact In September, 1975 two sons of Mrs. Pearlene Dillard were drowned. At the hospital Mrs. Dillard selected Stevens Funeral Home to provide the burial services. Later that evening she was visited by Rudolph Gilliam who was a friend of one of her sons. Mr. Gilliam had been phoned by a roommate of one of these sons who was very upset and requested he go to Mrs. Dillard's home to assist in the funeral arrangements. At the time Mr. Gilliam was not an employee of Johnson's Funeral Home, but he had on occasion worked at the funeral home as an assistant at funerals. Gilliam is self-employed and owns a restaurant. When Gilliam talked to Mrs. Dillard and learned that she had already engaged the services of another funeral director he did not pursue the matter. However, Mrs. Dillard asked him to take her to Johnson's Funeral Home which he did on the evening of September 18, 1975. He also took her brother, a daughter, and a niece. Upon arrival at Johnson's Funeral Home Gilliam introduced Mrs. Dillard to Joe Johnson and departed the room. Johnson showed Mrs. Dillard caskets and explained to her some of the provisions relating to funeral arrangements. Thereupon Mrs. Dillard decided that she preferred to use Johnson's Funeral Home. She thereafter went to the hospital and signed a second consent to have the bodies committed to Johnson's Funeral Home. Under oath Mrs. Dillard denied that Gilliam had told her that Johnson could provide a cheaper funeral as she alleged in an affidavit that was admitted into evidence as Exhibit 2. She further indicated that she had made up her mind independent of anything that Gilliam had said and that she was happy with the arrangements that she had procured from Johnson's Funeral Home. She acknowledged that she had changed her mind before the bodies had ever been released by the hospital to Stevens Funeral Home and considered that she had the right to do so. Subsequent to this incident, Jerome Stevens, the licensed Funeral Director of Stevens Funeral Home, filed a complaint that led to these charges. His affidavit was admitted into evidence without objection as Exhibit 1. Exhibit 3, the Affidavit of Fannie Mae Goodman was admitted into evidence without objection. Therein Mrs. Goodman stated that Rudolph Gilliam came to her house three times trying to get her to take the body from Stevens Funeral Home and give it to Johnson's Funeral Home which she declined to do. Rudolph Gilliam testified on behalf of Respondent. He does not know Fannie Mae Goodman and denied any attempt on his part to request her to change from Stevens Funeral Home to Johnsons'. He was a classmate of Mrs. Goodman's daughter, and went to the house after learning of her father's death. He did talk to Mrs. Goodman's daughter but he did not talk to Mrs. Goodman. On September 19, 1975 Stevens went to Mrs. Dillard's home to inquire why she had changed the funeral services to Johnson. She told him that she had changed her mind and was going to use Johnson's for the burial services. Mrs. Dillard made no deals with Gilliam and did not discuss any funeral arrangements with him. The discussions pertaining to funeral arrangements were made between her, her brother, and Johnson. Joe Johnson testified in his own behalf. He handled the funeral arrangements for Mrs. Dillard, and Mrs. Dillard did come to his funeral home on the evening of September 18, 1975 in company with Gilliam. He stated that Gilliam was not working for him, that Gilliam did occasionally work for him as an assistant during funerals. At the funeral services for Mrs. Dillard's sons Gilliam acted as an attendant and drove a family car. For these services Gilliam was paid $10.00 for the use of Gilliam's car and $10.00 for his services as an attendant. Johnson at no time paid any commission to Gilliam or offered to pay any commission to Gilliam. Prior to the arrival of Mrs. Dillard Johnson was not in contact with Gilliam and Gilliam was not working for him. Johnson has not had enough business for the past several months to warrant the employment of any assistants other than himself and his father, who is also a licensed funeral director and embalmer. Johnson acknowledged that he placed the advertisement in the newspaper that is contained in Exhibit 4.
Findings Of Fact From the pleadings filed herein, and argument of counsel, the following facts are determined. Petitioner filed its initial administrative complaint on August 11, 1981, alleging generally that in conjunction with the arrangement of an out-of-state funeral (1) Respondents were guilty of fraud, deceit, negligence, incompetency or misconduct in the conduct of their business of funeral directing, and (2) Respondents were guilty of misrepresentation and fraud in the conduct of their profession. Still pending are Count II, Count III (which has been dismissed this date by separate order for failure to state a cause of action without prejudice to Petitioner refiling a proper charge), and Counts IV and V (which are sought to be added to this proceeding through Petitioner's second amended administrative complaint). Petitioner accordingly sought to take disciplinary action against Respondents' licenses as funeral director, embalmer and funeral establishment. Upon a motion to dismiss being filed by Respondents, the complaint was dismissed for failure to state a cause of action. Thereafter, Petitioner filed its first amended administrative complaint on October 1, 1981, charging, inter alia, that Respondents were guilty of negligence or misconduct in the practice of funeral directing within the meaning of Subsection 470.036(1)(g), Florida Statutes. These charges again stemmed from a funeral purchase agreement entered into by Respondents on or about June 24, 1980, which required Respondents to pay from the proceeds of a funeral arranged by them a $1,250 payment to a Nebraska funeral establishment to handle the actual burial of the deceased. This payment was not made to the other funeral establishment until on or around February, 1981. Respondents thereafter filed a motion to dismiss Count I of the complaint on October 21, 1981, contending, inter alia, that Petitioner failed to state a cause of action under the facts alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents' motion to dismiss Count I of the First Amended Administrative Complaint with prejudice be and it is hereby GRANTED, DONE and ENTERED this 28th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Wilson W. Wright, Esquire 217 South Adams Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's application for licensure as a funeral director and embalmer should be denied on the grounds set forth in the Board of Funeral, Cemetery and Consumer Services' March 1, 2019, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Charles Williams, born on February 12, 1976, attended Gumpton-Jones College of Funeral Service in Atlanta, Georgia, graduating in February 1998. Mr. Williams received his embalmer license in March 1999 and became a licensed funeral director on April 12, 1999. Mr. Williams was working as a licensed funeral director and embalmer at George H. Hewell and Son Funeral Home in Jacksonville when he was arrested in 2004 and charged with sexual battery under section 794.011(2)(a), Florida Statutes (2004), which makes a capital felony of an adult’s committing sexual battery upon, or in an attempt to commit sexual battery injuring the sexual organs of, a person less than 12 years of age. The facts alleged in the charging affidavit were that Mr. Williams committed the violation by putting his mouth on the penis of a person less than 12 years of age. Mr. Williams stipulated that his victim was an 11-year-old boy. On March 6, 2006, Mr. Williams entered a plea of nolo contendere to a charge of lewd and lascivious molestation against a victim less than 12 years of age, a life felony under section 800.04(5)(b), Florida Statutes (2006). The court adjudicated him guilty and sentenced him to 12 years in prison followed by 13 years of probation/community control upon release. His conviction under section 800.04 means that Mr. Williams is designated a sexual predator under section 775.21(4)(a), Florida Statutes. Mr. Williams testified on his own behalf via deposition. He described going to work part-time for Masters Funeral Home in Palatka in 1993, while he was still in high school. He washed cars, dug graves, and removed bodies for Masters Funeral Home while learning about the funeral business. He graduated high school in 1994, the same year he served a one-year apprenticeship at Masters Funeral Home. In 1995, Mr. Williams obtained an intern license for embalming. He served a one-year internship at Masters Funeral Home and then began his studies at Gupton-Jones College of Funeral Service in September 1996. He graduated with an associate of science degree on February 27, 1998. Mr. Williams returned to Palatka and applied for his funeral director intern license. In his deposition, Mr. Williams explained that the internship lasts one year. He performed the bulk of his internship at Masters Funeral Home. Mr. Williams also spent about one month at Hardage-Giddens Funeral Home in Jacksonville, part of the Service Corporation International chain of funeral homes. Mr. Williams described Hardage-Gibbons as an “assembly line.” He quit the job because he did not wish to employ his training working in a “factory.” He came back to Masters Funeral Home to complete his internship. Mr. Williams obtained his embalmer license in March 1999 and his funeral director license on April 12, 1999. For a time after receiving his funeral director license, Mr. Williams left the profession to work as a uniformed security guard at the Clay County Courthouse. In October 1999, Mr. Williams decided to join the United States Air Force because jobs were scarce in the funeral industry at that time. His initial enlistment was for four years but he lasted only six months. Mr. Williams testified that he did not disclose his homosexuality when he enlisted, but that word eventually got around that he was gay. Because this was during the period of the military’s “don’t ask, don’t tell” policy, Mr. Williams was granted an entry level separation from the Air Force after completing basic and security forces training. From 2000 until late 2003, Mr. Williams worked at Moring Funeral Home in Melrose. He described it as a small, family-run funeral home at which he performed every conceivable service that a licensee could, including meeting with families, embalming, digging graves, and transporting bodies. He did whatever needed doing. In December 2003, Mr. Williams went to work for George H. Hewell and Son Funeral Home in Jacksonville, another family-owned funeral home. They had two funeral homes and were very busy, going out on over 400 calls per year. Mr. Williams worked there until November 2004, when he was arrested. Mr. Williams testified that he was sentenced in 2006 and served 10 years and three months of his 12-year sentence. Mr. Williams credibly testified that he was a model prisoner. He was released on November 15, 2015. Since his release, Mr. Williams has been on sex offender probation, and will remain so until November 15, 2028. The terms of sex offender probation are fully described at section 948.30, Florida Statutes. Mr. Williams wears a monitoring bracelet on his ankle, is required to participate in a sex offender treatment program, reports regularly to his probation officer, and is restricted in terms of his proximity to children and places where children regularly congregate. Mr. Williams is required to disclose his status to prospective employers. The evidence established that Mr. Williams has abided by all terms of his sex offender probation. Mr. Williams testified that his first job upon release was at Gator Communications Service in Gainesville, where he worked answering phones for several months. He next went to work for Kirkland Enterprises, a landscape company in Green Cove Springs. Mr. Williams worked for about 10 months at Kirkland Enterprises, then took a job with Roller Die + Forming, a metal fabrication plant in Green Cove Springs. Since mid-2016, Mr. Williams has worked as a receiver and forklift operator at KeHE Distributors, a distributor of organic foods. While he was incarcerated, Mr. Williams allowed his funeral director and embalmer licenses to lapse. On May 31, 2018, Mr. Williams submitted to the Board his application for a “Combination Funeral Director and Embalmer License by Florida Internship and Examination.” The Board deemed his application complete on June 27, 2018. On March 1, 2019, the Board denied the application for the reasons set forth in the extended quotation in the Preliminary Statement, supra. At the hearing and by deposition, several witnesses testified on behalf of Mr. Williams, attesting to his abilities as a funeral director, and more generally, as to his good character. Charles Miller is a receiving lead at KeHE Distributors, supervising about a dozen stockers. He has known Mr. Williams since May 2018. Mr. Miller is not Mr. Williams’s direct supervisor, but does oversee his work from time to time. Mr. Miller testified that Mr. Williams is conscientious, punctual, helpful, efficient, and diligent. He takes his job seriously and takes direction well. He is a good communicator, a “people person.” Mr. Miller stated that Mr. Williams has a clean work record and is one of the most popular members of the workforce at KeHE Distributors. Mr. Miller testified that he knows Mr. Williams wears an ankle bracelet. Mr. Williams told Mr. Miller that he had been incarcerated for a lewd and lascivious act, but did not say with whom or whether the victim was a minor. Mr. Miller did not press Mr. Williams for details. Mr. Miller’s wife, Ruth Ann Miller, also testified on behalf of Mr. Williams. Ms. Miller met Mr. Williams at the funeral of a person who had worked with her husband and Mr. Williams at KeHE Distributors. She also saw Mr. Williams at the funeral of his sister. On both occasions, she was impressed by his demeanor and helpfulness to the mourners, even at his own sister’s service. Ms. Miller stated that she does not know Mr. Williams well but that she could be his friend. She testified that Mr. Williams is attentive and “bubbly,” and has a way of putting people at their ease. Ms. Miller knew little about Mr. Williams’s criminal past. She knew he had been in prison and wore an ankle bracelet, but she did not know why. Eric Altman is a funeral director at Johnson Overturf Funeral Home in Palatka. He is a few years older than Mr. Williams and has known Mr. Williams since they were both children in the same small town, Bostwick. Mr. Altman did not interact much with Mr. Williams until the latter showed an interest in the funeral business as a teenager. Mr. Williams went to work for the “competition,” Masters Funeral Home in Palatka. They would run into each other and talk about the business. In 2001, Mr. Altman was working at a small funeral home in Green Cove Springs that he was hoping to buy. The home was shorthanded and Mr. Altman arranged for Mr. Williams to come to work there. Mr. Altman and Mr. Williams worked together for a few months. After this stint as a co- worker, Mr. Altman did not see Mr. Williams regularly. Mr. Altman testified that everything Mr. Williams did as a funeral director was appropriate. Mr. Williams showed initiative and ensured that things ran smoothly. Mr. Altman pointed out that a funeral is a bad place to make mistakes because people never forget them. A funeral director must pay close attention to detail, and Mr. Williams did that. Mr. Williams always made a good public appearance and was very compassionate, professional, and respectful. Mr. Altman noted that even now when he sees Mr. Williams in the public eye, he is always wearing a coat and tie, making the proper appearance. Mr. Altman testified that he had been aware that Mr. Williams went to prison for 10 years but did not have any firsthand knowledge of the facts of his case. Mr. Altman stated that he would hire Mr. Williams and would have no problems working with him. Mr. Altman stated that he could see from the beginning that Mr. Williams wanted to succeed in the funeral business. “It’s kind of in our blood . . . . It’s just not for everybody . . . . It has to be in you. You have to have the heart for it. And you want to succeed and do well and be well thought of in the community and the people you serve. And he has that.” Tony Sweat is a self-employed truck driver who met Mr. Williams when they both worked for Kirkland Enterprises in 2015 and 2016. Mr. Sweat was the lead foreman when Mr. Williams was hired as a driver and laborer. Mr. Sweat joked that as landscapers, he and Mr. Williams spent more time with each other than with their families. They became friends. After both men left Kirkland Enterprises, they stayed in touch by telephone but did not see much of each other, which Mr. Sweat attributed to their living in different towns. Mr. Sweat stated that he has only seen Mr. Williams two or three times in the last six months. Mr. Sweat testified that in January 2019, his mother- in-law died. He and his wife Summer had no clue how to even begin arranging for a funeral. Mr. Sweat knew that Mr. Williams had been in the funeral business and called him for advice. Mr. Williams recommended Masters Funeral Home in Palatka and accompanied the Sweats to the funeral home to assist them with the paperwork. He came to the funeral and was a support and comfort to Ms. Sweat. Summer Sweat testified that Mr. Williams was helpful, professional, supportive, and possessed a lot of technical knowledge regarding the funeral industry. He helped select the urn for her mother’s remains, set up a website for friends and family to make gifts in honor of the deceased, and did most of the speaking on behalf of the family at the funeral. Ms. Sweat testified that this was her only real exposure to her husband’s friend but that she was very happy with everything he did. Mr. Sweat testified that he spoke with Mr. Williams about his criminal conviction. Mr. Williams told Mr. Sweat that he had been charged with molesting a little girl. Mr. Williams said that he pled guilty but did not actually commit the crime. Mr. Williams used his homosexuality as an alibi, stating that he was a gay man and would never want to molest a little girl. Mr. Sweat believed Mr. Williams’s story. When counsel for the Board showed him the actual arrest affidavit, Mr. Sweat stated, “That’s crazy.” However, Mr. Sweat then defended Mr. Williams’s lack of candor. Mr. Sweat reasoned that Mr. Williams is gay, had just been released from prison for child molestation, and was going to work with “a bunch of roughnecks” at Kirkland Enterprises. It made sense that Mr. Williams would choose to shade his story in order to avoid ostracism, or worse, from a group of co-workers who are likely homophobic. Mr. Williams was not required to give his employer the full details of his criminal activity and understandably did not volunteer the true gender of his victim. Mr. Sweat concluded his testimony by stating, “I think y’all should give him a chance, maybe . . . I mean, the business side of it--like as far as handling funerals and stuff, I--he seems to thoroughly enjoy that and is pretty decent at comforting people.” Tiffany Desjardins is Mr. Williams’s immediate supervisor at KeHE Distributors. She testified that Mr. Williams is diligent, punctual, attentive to detail, and a hard worker. Ms. Desjardins attended the funeral of Mr. Williams’s sister. Though he was not working in any official capacity, Mr. Williams assisted the funeral director, Quincey Masters, in escorting and seating the family. Ms. Desjardins noted that Mr. Williams conducted himself in a professional manner. Ms. Desjardins stated that she would not hesitate to have Mr. Williams make final arrangements for her loved ones, even in light of his criminal past. She was aware that he went to prison, that his offense involved an 11-year-old boy, and that Mr. Williams is not allowed around children. Kale Cooper is the inbound supervisor at KeHE Distributors. He is Mr. Williams’s ultimate supervisor. Mr. Cooper also was aware of the details of Mr. Williams’s offense and also stated that he would not hesitate to have Mr. Williams assist in the burial or cremation of his loved one. Paul Roach is the head of maintenance at KeHE Distributors. He attended the funeral of Mr. Williams’s sister and was impressed by Mr. Williams’s professional manner under such difficult circumstances. Mr. Roach knew that Mr. Williams had been imprisoned for the sexual molestation of an 11-year-old boy. He nonetheless stated that he would hire Mr. Williams to conduct the funeral services of his wife, son, or daughters. Mr. Roach testified that he had already entrusted Mr. Williams with the remains of a loved one. When Mr. Roach’s mother died about three years ago, everyone in his family was “too brokenhearted” to retrieve her cremated remains from the funeral home in St. Augustine. Mr. Roach asked Mr. Williams to do it. Mr. Williams put on a suit, drove to St. Augustine, and made sure that the mother’s remains were safely delivered to the family. Jennifer Brown testified that in June 2016, her father died in a nursing home in Jacksonville. Ms. Brown’s daughter, Angie Knighten, had known Mr. Williams since childhood. Ms. Knighten immediately suggested to her mother that they call Mr. Williams for assistance in making the arrangements. Mr. Williams rode to Jacksonville with someone from the Masters Funeral Home to remove the body. Ms. Brown was impressed that Mr. Williams arrived wearing a suit and also by his professional manner. Mr. Williams assisted the family through the entire cremation process. Ms. Brown stated that she lacked the words to say how much she appreciated everything Mr. Williams did for her family. Ms. Brown did not know of Mr. Williams’s criminal history at the time of her father’s death. By the time of the hearing, she was aware of the details of Mr. Williams’s offense. Ms. Brown testified that, even knowing what Mr. Williams had done, she would still not hesitate to call on Mr. Williams to handle the final arrangements for her loved one. Angie Knighten, Ms. Brown’s daughter, also testified on behalf of Mr. Williams. She had known Mr. Williams when they were children and they remained friendly through their teen years. Mr. Williams went away for about ten years. Then, in 2016, Ms. Knighten met Mr. Williams while they were both working at Roller Die + Forming. Ms. Knighten asked Mr. Williams about the ankle bracelet he was wearing and he told her where he had been for the past ten years. Mr. Williams told her that he had been convicted of lewd and lascivious assault on a child. Ms. Knighten did not pry into details, but she did ask Mr. Williams if he did it. Mr. Williams told her that he did not, but that he went to prison rather than put the child through the ordeal of a trial. Ms. Knighten stated that this conversation occurred in about 2016 or 2017 and that she had not discussed the matter again with Mr. Williams. She conceded that she had no way of knowing whether Mr. Williams was continuing to deny culpability for his crime. Quincey Masters III is the owner and operator of Masters Funeral Home in Palatka and Interlachen. Mr. Masters is a second-generation funeral director and has been in and around the funeral business for his entire life. Though not formally proffered or accepted as an expert, Mr. Masters is clearly knowledgeable about all aspects of the funeral business. His opinion regarding the appropriateness of Mr. Williams’s re-entry into the profession is deserving of special consideration. Mr. Masters testified that he first saw Mr. Williams when Mr. Williams was about six years old. Mr. Williams’s grandmother had brought him to the Baptist church for a funeral in his little black suit. In about 1993, Mr. Williams approached Mr. Masters about coming to the funeral home to learn about the profession. Mr. Williams went to work for Masters Funeral Home while still in high school and was trained in the business there. Mr. Masters testified that Mr. Williams worked for him for at least two years after graduating from high school and before getting his funeral director license. Mr. Williams was separately licensed as an embalmer and, according to Mr. Masters, was very good at it. Mr. Williams made funeral arrangements and helped conduct funerals. Even after he obtained his funeral director’s license, Mr. Williams was willing to wash cars and answer the phone at the funeral home. Mr. Masters testified that the public never sees the majority of the work done in his profession: the dressing, cosmeticizing, and placement of bodies in caskets. Mr. Masters observed Mr. Williams performing these tasks and testified that he did them well. Mr. Masters stated that Mr. Williams excelled in the public aspects of the funeral director’s job. He was always very professional when working with the public. He was caring and well-dressed. Mr. Masters stated that family members are in a vulnerable state during a time of mourning. It is important that the funeral director show an appropriate degree of concern and understanding, and Mr. Williams never failed in that respect. Mr. Masters testified that Mr. Williams did a lot of body removals when he worked for Masters Funeral Home, even before he was licensed. The removal person goes into the home, nursing home, hospice, or worksite, and assesses the layout. He must determine the best way to remove the body with the proper respect, compassion, and tenderness, whether or not the family is present to witness the removal. Mr. Masters usually sends two people to do the job, but on out-of-town removals he might send only one. He recalled sending Mr. Williams alone to Gainesville at least once. Mr. Williams always showed the proper respect and was always available to go out on removal jobs when called. Mr. Masters was aware of Mr. Williams’s crime and conviction. In fact, Mr. Masters visited Mr. Williams in prison. Mr. Masters testified that he would have no problem working with Mr. Williams in any aspect of the funeral business. Mr. Masters testified as follows, addressing his words to Mr. Williams: I believe, beyond shadow of a doubt, that you should have the opportunity to be a licensed funeral director and embalmer. I believe you have a lot to offer, to give back I don’t believe the State would have to worry one bit about you. The public would be safe. And, in all candor, and as sincere as I can say it, I believe you would be an asset to the profession once again. Teresa Perez is a licensed mental health therapist with ITM Group in Gainesville. She is specifically trained in the treatment of sexual abusers. Ms. Perez has been Mr. Williams’s therapist for sex-offender treatment for the past two years. She testified that he has made progress and is currently in the “maintenance” phase of treatment, which will be completed in March 2020. Ms. Perez stated that only a minority of her clients achieve the maintenance level of treatment. Ms. Perez testified that Mr. Williams’s risk assessments show him to be in the lowest risk category for recidivism for a sexual offense. Mr. Williams has been administered the Rapid Risk Assessment for Sexual Offense Recidivism (“RRASOR”) static risk factor tool, the STATIC-99 test, and a dynamic risk factors test, all of which indicate a low potential for a repeated offense. Ms. Perez agreed with Board counsel’s statement that the RRASOR tool suggests that Mr. Williams is part of a group having an expected recidivism rate of seven percent within five years, and a recidivism rate of 11 percent over 10 years. Board counsel placed great emphasis on the risk posed by Mr. Williams as expressed by the 11-percent recidivism rate in the RRASOR testing. The undersigned is less troubled by that statistic because of the great confidence Ms. Perez placed in Mr. Williams’s progress in treatment. The undersigned reads the 11-percent recidivism rate not as an expression of Mr. Williams’s personal risk, but as a general statistic about the subjects of the RRASOR testing. The number does not mean that every individual in the group of 100 subjects has an 11-percent risk of relapse. Rather, it indicates that the group includes 11 men who are virtually certain to be repeat offenders, and 89 who in all likelihood will not commit a repeat offense. Based upon her professional qualifications and experience, Ms. Perez seemed sure that Mr. Williams would be one of the 89. The undersigned credits her opinion. Ms. Perez testified that Mr. Williams consistently engages meaningfully in treatment. He is self-disclosing and helpful to other members of his group therapy sessions. Ms. Perez stated that Mr. Williams has consistently acknowledged that he committed a sex offense in the past. She stated that the Association for the Treatment of Sexual Offenders has in recent years questioned the utility of requiring persons receiving treatment for sexual offenses to continue identifying themselves as “sex offenders.” If polygraph tests and continued monitoring during probation prove that the client is not engaging in negative behaviors and if therapy shows the client is addressing the roots of the issues influencing his choices, then it may be counter-therapeutic to insist that the client continue to identify himself as a sex offender. Ms. Perez believes that Mr. Williams meets these criteria. Ms. Perez testified that, in her professional opinion, Mr. Williams would not pose a risk to the health and safety of the public if he were to receive a license to be a funeral director and embalmer. Ms. Perez testified that Mr. Williams has taken full responsibility for his actions in molesting an 11-year-old boy in 2004. She was unaware that Mr. Williams had, outside of the therapeutic setting, denied committing the offense. Ms. Perez stated that she intended to discuss that issue with Mr. Williams and could adjust his course of treatment in light of their discussion. On his own behalf, Mr. Williams testified that he knows a lot more about himself, after 10 years in prison and ongoing therapy, than he did at the time of his offense. He noted that a funeral director deals almost exclusively with adults and that there is almost nothing a funeral director does that is outside of the public eye. He would never be with an unaccompanied minor when performing his duties. He believed there are no triggers in the funeral service profession that might cause him to relapse. Mr. Williams testified that he poses no danger to the public. Counsel for the Board points out that funeral directors meet with families to make funeral arrangements and in the course of performing their services come into contact with family members of all ages during times of extreme vulnerability. Though this point is valid, it does not undermine Mr. Williams’s contention that he would never be alone with a vulnerable child in the course of his duties. Counsel also notes that funeral directors may make contact with family and friends in the removal and transport of the deceased, although the evidence at the hearing established that no license is required to remove and transport a body. In summary, the Board has stipulated that Mr. Williams possesses the skills, knowledge, and technical qualifications for licensure as a funeral director and embalmer. Therefore, the only issues in this proceeding are Mr. Williams’s good character and whether granting him the license he seeks would create a danger to the public. Mr. Williams presented the testimony of friends, acquaintances, co-workers, current and former employers, fellow funeral directors, and his mental health therapist, who all recommended that Mr. Williams be granted licensure as a funeral director and embalmer. Mr. Williams’s entire criminal record consists of one crime, of an especially heinous nature, for which he faultlessly served his sentence and continues to comply with all terms of his probation. Mr. Williams’s personal demeanor at the hearing and his deposition testimony bespeak a man who has acknowledged his transgression, accepted his guilt, and seeks to continue repaying his debt. Twice after his release from prison, out of understandable shame and fear, Mr. Williams did not tell the full truth about his crime, once to an employer and once to an old friend. However, the evidence supports a finding that Mr. Williams has consistently acknowledged his guilt during therapy. Ms. Perez testified that it is not uncommon for an offender’s ability to relate the truth to persons outside the therapeutic setting to evolve over time. At the time of the hearing, Mr. Williams was forthright in stating that he had committed the act of lewd and lascivious molestation of an 11-year-old boy. Mr. Masters was a particularly impressive witness. His time in the industry and his lifelong knowledge of Mr. Williams combined to make his plea on behalf of Mr. Williams’s licensure moving and convincing. However, it was not just Mr. Masters but every testifying character witness who expressed complete confidence in Mr. Williams’s reformation and his ability to skillfully perform the duties of a funeral director. Even knowing that Mr. Williams had committed a terrible crime, witness after witness stated that they would, without hesitation, employ Mr. Williams to make the final arrangements for their loved ones. The undersigned noted how often witnesses told of Mr. Williams dropping whatever he was doing to help a friend with some funeral-related need--helping to arrange and host the service, picking up the body of a recently deceased relative, assuming responsibility for the safe transport of a loved one’s ashes--without thought of remuneration. Mr. Masters and Mr. Altman spoke in terms of the funeral business having to be in one’s blood. It is a calling, a vocation that is not for everyone. The evidence presented at the hearing made clear that Mr. Williams felt this calling from an early age, pursued it with diligence and vigor, and now seeks to resume his career in the funeral industry. Mr. Williams has demonstrated his reformed good character and that his licensure would not create a danger to the public. The undersigned finds that the Board should give him the opportunity to return to his profession.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Board Funeral, Cemetery and Consumer Services enter a final order granting Petitioner's application for licensure as a funeral director and embalmer. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 9th day of September, 2019.
