11-003693 Department Of Financial Services, Division Of Funeral, Cemetery, And Consumer Services vs. Landmark Funeral Home, Inc. Status: Closed Recommended Order on Thursday, October 27, 2011.

Summary: Agreed-to $250 fine for advertising preneed services w/o license. Petitioner did not prove Board attached conditions to funeral establishment license or Board intended to and mistakenly failed to do so. Respondent not guilty of employing certain persons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, BOARD OF FUNERAL, )

CEMETERY AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 11 - 3693

)

LANDMARK FUNERAL HOME, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

webcast in Tallahassee, Florida, on September 6, 2011. The

Administrative Law J udge, parties, and attorneys for the parties

attended in Tallahassee. The court reporter attended in Fort

Lauderdale. Witnesses appeared in both locations.

APPEARANCES

For Petitioner: Thomas A. David, Esquire

Department of Fina ncial Services

200 East Gaines Street

Suite 612, Larson Building

Tallahassee, Florida 32399 - 0333

For Respondent: Edward Holodak, Esquire

Edward Holodak, P.A.

2500 Hollywood Boulevard, Suite 212

Hollywood, Florida 33020

Brady J. Cobb, Esquire

Tripp Scott, P.A.

110 Southeast Sixth Stre et

Fifteenth Floor

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of :

1) advertising for preneed services without possessing a valid

preneed license, in vio lation of section s 497.152(5)(a) ,

497.157(1) , 497.166(1), and 497.452(1)(a), and 2) obtaining its

license by misrepresentation or error of the Board of Funeral,

Cemetery, and Consumer Services (Board) known to Resp ondent or,

alternatively, failing to limit the activities of two persons in

accordance with representations made to the Board, in violation

of section 497.152(1)(b) and (4)(f) and (g), Florida Statutes .

If Respondent is guilty of any of these charges , an additional

issue is the penalty to be impo sed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 3, 2010, Petitioner

alleged that Respondent possessed a funeral establishment

license , but not a preneed license. Count I alleges that

Respondent unlawfully advertised preneed services, in violation

of the statutes set forth above. Respondent ha s not contested

this violation. T he parties have agreed that the violation was

not willful and agreed on the penalty -- a $500 admi nistrative

fine . This recommended order therefore will not address C ount I

in detail.

Count II alleges that, on April 8, 2009, the Board

conducted a meeting, at which it considered the pending

application of Respondent. During the meeting, Jonathan Shaw,

Respondent's owner, allegedly informed the Board that Valerie

Panci era - Rieth would have no involvement with Respondent's

business, nor would her father, Irving R. Panciera, except as a

lessor of the business premises to Respondent. Allegedly in

reliance, in part, on these representations, the Board granted

Respondent a f uneral establishment license at its next meeting,

which took place on May 6, 2009.

Count II alleges that, after the license was issued,

Mr. Panciera and Ms. Panciera - Rieth appeared in advertisements

for Respondent, Mr. Panciera represented himself as a co nsultant

for Respondent in business cards, and the Greater Hollywood

Chamber of Commerce directory listed Ms. Panciera - Rieth as a

contact for Respondent. Count II alleges that Mr. Shaw's

representations to the Board were thus false or, alternately,

Respon dent failed to limi t the activities of Mr. Panciera and

Ms. Panciera - Rieth to conform to Mr. Shaw's representations , in

violation of the statutes cited above .

At the hearing, Petitioner called five witnesses, and

Respondent called three witnesses. The parties offered into

evidence four joint exhibits: Joint Exhibits I - IV. Petitioner

offered into evidence 11 exhibits: Petitioner Exhibits A - H and

J - L. All exhibits were admitted.

The court reporter filed the transcript on September 28,

2011 . The par ties filed proposed recommended orders on

October 10 , 2011.

FINDINGS OF FACT

1. This case involves four applications for three funeral

establishm ent license s at two addresses by three corporations .

The principals of at least two of the corporations i nclude two

feuding siblings. This case also involves the distinction

between a corporate applicant for a funeral establishment

license and its principals (i.e., owners and officers ) .

2. The two siblings are Ms. Panciera - Rieth and her

brother, Mark Pa nciera. For 50 years, their father operated

Panciera Memorial Hom e at 4200 Hollywood Boulevard. As he

approached retirement, t o assist his two children in their

pursuit of the funeral business , t he father appears to have

transferred the Panciera Memorial Home name to the son and the

4200 Hollywood Boulevard address to the daughter .

3. Each sibling naturally wished to leverage the goodwill

associated with the name or business location that the father

had earned in half of a century of operations. As r elevant to

this case, this pursuit of leverage resulted in the filing of

complaints against the other sibling, as she or he pursued a

funeral establishment license for the corporate applicant for

which he or she was a principal.

4. On the present recor d, it is impossible to determine

whether the complaints were filed against the other sibling

personally, a corporation (or similar entity) with which the

sibling had been involved, or the corporate applicant with which

the sibling was involved in the licen sing process. Certain

minutes of Board meetings, as cited below, identify the

offending party as "the applicant." The suggestion that each

corporate applicant was doing business prior to obtaining a

license is worrisome, but the Board's repeated failure, as

discussed at length below, to differentiate between a

corporation and its principals suggests that each complaint was

probably filed against the competing sibling personally .

5. The complaint s themselves do not appear to have been

very serious and are described briefly below. The main

difference between the complaint of Mark Panciera and the

complaint of Ms. Panciera - Rieth initially appears to be the

number of violations . Ms. Panciera - Rieth's complaint involves a

single violation in the form of a misleading ad, and Mark

Panciera's complaint involves either four or six violations,

also involving advertising . This distinct ion is misleading,

though. Ms. Panciera - Rieth's complaint identifies a misleading

ad at a bus stop in front of 4200 Hollywood Bo ulevard, so the

violation, if not continuing, reached many potential customers .

Mark Rieth's complaint seems to identify a single ad in a church

bulletin, so, given the shelf - life of such publications, the

potential audience may not have exceeded , or even approached,

the audience reached by the lone offending bus stop ad.

6. As a practical matter, the more important distinction

between the two complaints is the persistence of Mark Panciera,

through his representative, in opposing to the Board the

appli cation of his sister's corporation. By contrast,

Ms. Panciera - Rieth appears to have filed her complaint and let

the Board deal with it as it wished. The persistence of Mark

Panciera's representative was so pronounced that, at times , a

casual reader of th e minutes might think that the representative

was a member of the Board or a representative of the Division.

7 . The story begins with the Board minutes of

February 4, 2009, which employ a flashback device to take us

back three months earlier. O n Novemb er 7, 2008, the Board

received an application for a funeral establishment license from

Valerie Panciera Funeral Home, Inc., later renamed Presidential

Circle Funeral Home, Inc. (Presidential Circle) . The

applicant's owner was Ms. Panciera - Rieth, t he appli cant's

funeral director in charge (FDIC) was Ms. Panciera - Rieth's

husband, Keith Rieth , the applicant's business address was 4200

Hollywood Boulevard, and the proposed facility later passed an

inspection on November 10, 2008 . This is Presidential Circle

A pplication I.

8 . Continuing the backstory, the February 4 minutes next

describe the Board's December 3, 2008, meeting, at which the

Board had first considered Presidential Circle Application I.

T he Division of Funeral, Cemetery, and Consumer Services

(D ivision) had recommended approval of President ial Circle

Application I. However, p rior to the December 3 meeting,

Petitioner had received a complaint from Mark Panciera alleging

that "the applicant" had conducted a business as an unlicensed

funeral establ ishment and had misled the public by representing

itself as Panciera Memorial Home. Confronted with this

complaint, the Board had deferred action on Presidential Circle

Application I, so that Petitioner could complete its

investigation .

9 . Foreshadowi ng the confusion between a corporation and

its principals that plagues Count II, the minutes' use of "the

applicant" is unclear . The only applicant is the corporation,

so, on its face, the statement states that Presidential Circle

engaged in unlicensed pr actices. However, another mention of

"the applicant" at this point in the minutes suggests that the

Board probably meant someone or something else.

10. After receiving Mark Panciera's complaint, the

Division assigned an investigator, but later learned t hat the

investigator had had a prior employment relationship with "the

applicant" and Mark Panciera, so the Division assigned another

investigator to the case. If the investigator had worked for

the previously unlicensed Presidential Circle, he or she had

participated in a serious unlicensed - practice violation, months

or even years before Presidential Circle had filed its

application for a license. Much more likely, the investigator

had lawfully worked for one or more licensed entities, with

which the war ring siblings were also involved. In other words,

the investigator had not worked for "the applicant."

11 . The ensuing investigation had determined unspecified

violations of chapter 497, Florida Statutes -- by whom or what is

unstated. However, the Di vision stated that the violations were

not of the type "that would warrant a denia l of a license." The

Division therefore had agreed to a proposed consent order, under

which " the Respondent" -- otherwise unidentified -- had agreed to

pay an administrative fin e of $1000. The copy of the

investigative report was attached to the official minutes, but

not to the copy that is an exhibit in this case.

12 . The plot thickened when , at the February 4, 2009,

meeting, the Board rejected the sett lement agreement and denied

Presidential Circle Application I . In the discussion, one Board

member criticized the proposed fine as too lenient, but conceded

that there was no basis for d enying the application. The

minutes do not adequately describe some of the persons who

ad dress the Board in terms of their relationship to the business

under consideration. At this point in the minutes, one such

person, John Rudolph, addressed the Board, evidently

representing Presidential C ircle, Ms. Panciera - Rieth, or, most

likely, both.

1 3 . Mr. Rudolph stated that the Board should have issued

the license in December and, if appropriate, prosecuted a

disciplinary case against the newly licensed funeral

establishment. Mr. Rudolph warned of the "travesty" of denying

a license or deferring a ction every time a competitor files a

complaint against an applicant.

14 . Countering these assertions , Wendy Wiener, the

re presentative of Mark Panciera , reminded the Board that the

investigation had confirmed six inst ances of misleading the

public. T he representative argued that the violations of

chapter 497 precluded licensure of the corporate applicant , even

if the violations had been brought to the Board's attention "in

the context of a family dispute." These comments seemed to turn

the tide again st Presidential Circle Application I.

15 . T he dramatic climax of the family feud occurred at the

April 8, 2009, Board meeting, at which the Board considered a

new application from Presidential Circle and an application from

the corporation of which Mar k Panciera was a principal.

16 . The new application from Presidential Circle had been

filed on March 10, 2009 -- one day after Jonathan Shaw had

acquired the stock of the corporate applicant. The business

address was again 4200 Hollywood Boulevard, but the FDIC was

Jeffrey Brady , and the facility had passed another inspection on

March 20, 2009. This is Presidential Circle Application II.

17 . The April 8 minutes noted that, six days after denying

Presidential Circle Application I, the Board had recei ved an

application from Boyd Panciera Family Funeral Care, Inc., d/b/a

Panciera Memorial Home Cha pel , of which Mark Panciera was vice

president . In that six - day interval, Ms. Panciera - Rieth had

filed her complaint, which has been identified above.

18 . The April 8 minutes report that the ensuing

investigation had found that Panciera Memorial Home, Inc., whose

relationship to the corporate applicant or Mark Panciera is

undisclosed, had placed a sign on a bus stop in front of 4200

Hollywood Boulevard that was misleading to the public. The sign

stated that the Panciera Memorial Home had moved to four nearby

locations, even though "the funeral establishment" owned only

two of these locations.

19 . The April 8 minutes disclose that the Division had

entered into a settlement sti pulation with "Respondents," which

referred to Mark Panciera and Panciera Memorial Home, Inc., for

the payment of an administrative fine of $1000. Without

discussion or opposition from Mr. Rudolph , th e Board approved

the settlement st ipulation and pending application , imposing a

condition on the funeral establishment license of also obtaining

a preneed license .

20 . Turning to the Presidential Circle matter, the April 8

minutes note that the Board had tabled Presidential Circle

A ppl ication I at its December meeting and denied Presi dential

Circle Application I at its February meeting . Stating that

Ms. Panciera - Rieth was among the principals of Presidential

Circle, the April 8 minutes refer to Presidential Circle

Application I as the "'Valerie Panciera application.'" The

April 8 minutes note that "A pplicant " had requested a formal

administrative hearing on the denial.

21 . However, the April 8 minutes acknowledge that, on

March 9, 2009, an unidentified entity -- perhaps, but unlikely,

the actual applicant -- had filed a motion to withdraw

Presidential Circle Application I. The April 8 minutes note

that the Board had received Presidential Circle Application II .

22 . Ms. Weiner, now representing Panciera Memorial Home,

advised the Board t hat it was too late to withdraw Pre sidential

Circle Application I because the Board had considered it in

depth and denied it. Ms. Weiner stated that, once a denied

applicant filed a request for hearing, it no longer had the

option to withdraw its tentativ ely denied application.

Ms. Weiner also pointed out that the Board could not consider

Presi dential Circle Application II while Presidential Circle

Application I was still pending.

23 . Alluding to the distinction between the corporate

applicant and its p rincipal, Ms. Weiner argued that

Ms. Panciera - Rieth had filed the request for h earing in her

personal capacity, and the corporate applicant should have filed

the request. Ms. Weiner reasoned that the Board had already

denied the application of Presidentia l Circle and the den ial wa s

"permanent " due to this mistake.

24 . Asking if anyo ne was present representing

Ms. Panciera - Rieth, Stephen Turner introduced himself as a

representative of her "in so far as [the proceedings affect] the

application of Mr. Shaw ." Mr. Rudolph was absent due to a death

in the family. A Board member replied that it was not

considering "Mr. Shaw's app lication" at this time, and

Mr. Turner agreed, noting only that his firm's representation of

Mr. Shaw was implicated by the withdraw al. Mr. Turner explained

that he wanted the Board to accept the withdrawal to clear th e

way for consideration of "Mr. Shaw's application."

25 . Board counsel advised that she disagreed with

Ms. Weiner that the Board could not grant the motion to withdraw

Presidential Circle Application I . The Division Director agreed

with Ms. Weiner 's second point , though, that the Board could not

approve Presidential Circle Application II while Presidential

Circle Application I was still pending.

26 . Mr. Turner stat ed that the Board did not have any

discretion to deny the request to withdraw Presidential Circle

Application I because the applicant c ould withdraw its

application at anytime prior to factfinding. Mr. Turner added

that the Board could seek t o impose disc ipline against

Ms. Panciera - Rieth, but it should clear the pathway to

consideration of Presidential Circle Application II.

27 . Mr. Turner stated that there was no relationship

between Ms . Panc iera - Rieth and Mr. Shaw, who had other

businesses alon g Hollyw ood Boulevard and wished to invest in the

funera l business at this location. Mr. Turner added that

protection from competition, which he argued was the real

objective of Ms. Weiner's client, was no basis for denial of an

application.

2 8 . Some Board memb ers then discussed some finer points of

administrative law as to when an applicant may withdraw its

application relative to proposed agency action. Ms. Weiner

again reminded the Board of a broader point of corporate law --

namely, that the applicant whose a pplication had been denie d had

been Presidential Circle. Again, she argued that the wrong

entity had filed a request a hearing. B ut t he Division Director

wisely counseled the Board that this formality would unlikely

result in a determination, under admin istrative law, that the

applicant had failed timely to request a hearing.

29 . Wheeling dexterously, Ms. Weiner now argued that the

Board could consider Presidential Circle Application II, even

while Presidential Circle Application I was still pending .

Board counsel dispensed with this argument by noting the

unacceptable possibility that both applications could eventually

be granted to operate at the same location .

30 . Board deliberations seemed bogged down by this time .

The advocates had neatly framed the question of whether the

Board could allow Presidential Circle to withdraw Presidential

Circle Application I, rather than merely "its" request for

hearing. If Presidential Circle could withdraw only its request

for hearing, the Board's denial of Presidential Circle

Application I would become final and, thus, serve as an

impediment to another application from the same corporate

applicant. On the other hand, Board counsel and the Division

Director clearly recognized that the Board could not take a ction

that might result in the granting of both applications.

31 . After a much - needed break, the Board took up

Presidential Circle Application II. The Division sensibly

provided the Board with alternative recommendations. T he Board

should approve Pr esidential Circle Application II, if it

approved the request to withdraw Presidential Circle Application

I. But, if the Board denied the motion to withdraw Presidential

Circle Application I, the Board should deny Presidential Circle

Application II because the re was already a pending applic ation

for a funeral establishment at this location (and from the same

applicant).

32 . Maureen Daughton, who is a member of the law firm of

which Mr. Turner is a member, t old the Board that Mr. Shaw has

other businesse s on Ho llywood Boulevard, Mr. Shaw has no

relationship with Ms. Panciera - Rieth , and Mr. Shaw "is not

intending to employ [Ms. Panciera - Rieth ]." Mr. Shaw himself

added that Ms. Panciera - Rieth would have "nothing to do with the

funeral home." Responding to questions , Mr. Shaw stated that

Mr. Brady had not worked for Ms. Panciera - Rieth , and he had no

arrangement with Ms. Panciera - Rieth or her father on how to

operate the business or a future change in ownership. Mr. Shaw

noted only that Mr. Panciera owned t he building at which

Presidential Circle would operate its funeral home, if licensed.

33 . The Board's Chair said that it was "kind of odd" that

Mr. Shaw had purchased the corporate applicant at this time.

Mr. Shaw replied that he has lived for 20 year s within two

blocks of the facility and became interested in the business

when he noticed that the signs had been down at the funeral home

for a couple of months. He added that he had already invested

$25,000 in the business, but would not invest what he projected

to be $70,000 until he obtained a license.

34 . At this point, Ms. Weiner reminded the Board that the

applicant had listed Ms. Panciera - Rieth 's husband as its FDIC.

Mr. Shaw responded by saying that he might hire Mr. Rieth , if

Mr. Brady approve d him, and Mr. Rieth had done nothing wrong.

Ms. Weiner noted that Mr. Rieth had been the FDIC on

Presidential Circle Application I. This argument of Ms. Weiner

went nowhere.

35 . However, t he Board then denied approval of the motion

to withdraw Pres ide ntial Circle Application I. Mr. Turner

obtained a short break to consider other options.

36 . Turning again to Presidential Circle Application II,

no one on the Board could say that he or she had "any concerns"

about Presidential Circle Application II, a ssuming that the

outstanding issues about Presidential Circle Application I could

be resolved . Mr. Turner then advised that, during the break,

Ms. Panciera - Rieth had authorized Mr. Turner, on behalf of

Presidential Circle, to withdraw the request for hear ing.

37 . Ms. Weiner expressed satisfaction with this approach,

saying that her "primary concern was that the new ownership by

Mr. Sha w was not a mechanism for Valerie , her husband or her

father to control the business in some way." That may have been

Ms . Weiner's primary concern -- and it may have been satisfied --

but no member of the Board endorsed Ms. Weiner's subtle

transformation of a technical solution to a procedural problem

to an acceptance of licensing restrictions on the involvement of

Ms. Panciera - Rieth, her husband, and her father with the funeral

home business licensed to operate at 4200 Hollywood Boulevard.

38. Addressing the technical problem, Corinne Olvey, whose

role is not described in the minutes, accurately observed that,

if the denial of Presidential Circle Application I became final,

it would operate as a denial of Mr. Shaw's corporation, as the

two applicants were the same legal entity. Evidently failing or

unwilling either to grasp Ms. Olvey's point or the limited

effect of a corpor ate name change, Mr. Turner offered to rename

Presidential Circle. The Division Director essentially agreed

with Ms. Olvey and warned that Presidential Circle would have to

disclose previous discipline. Joining her partner, Ms. Daughton

said that it migh t behoove Mr. Shaw to modify or change the

corporate name.

39 . After some more discussion, Mr. Turner asked whether

"the Applicant" should organize a new corporation. The Division

Director replied that he would recommend that the Board table

President ial Circle Application II to allow Mr . Shaw to form a

new corporation. Mr. Turner agreed to do this. A Board member

asked Mr. Shaw if he understood the decision, and Mr. Shaw

assured him that he did. Mr. Turner restated that he would

organize a new corp oration and "questioned whether the

application could be approved with the condition of the new

application." Speaking next, Ms. Weiner stated that, because

there was a "valid denial" by the Board -- apparently of

Presidential Circle Application I -- "the Boa rd would want to see

the new corporate entity or the new legal entity before it

granted that approval." Again, Ms. Weiner's bald attempt to

insinuate herself into the decisionmaking delegated to the Board

fell flat. Failing to accept Ms. Weiner's implied suggestion,

Board counsel recommended only that the Board table further

consideration of Presidential Circle Application II. And so

ended the April 8, 2009, minutes.

40 . Mr. Shaw wasted no time after the April 8 Board

meeting. He caused the incorpor ation of Respondent effective

April 16, 2009. On April 17, 2009, Respondent filed an

application for a funeral establishment license. In the

application, the owner and president is Mr. Shaw, address of the

business is again 4200 Hollywood Boulevard, FDIC is again

Mr. Brady, and inspection is again that of March 20, 2009.

41 . The May 6, 2009, Board meeting is, after the April

meeting, necessarily anticlimactic. There is no replay of the

family feud. The Board seems disengaged, at least as compared

to the involved proceeding one month earlier. The minutes

misstate repeatedly the effect of the activity described in the

preceding paragraph. First, even though there is no legal

relationship between Presidential Circle and Respondent, the

title of this i tem of business is: "Landmark Funeral Home, Inc

formerly Presidential Circle Funeral Home Inc." Second, even

though an entirely new application, with a new application fee,

had been filed three weeks earlier, the minutes identify the

application as Presi dential Circle Application II. Third,

ignoring the new application, the minutes state that the

Presidential Circle Application II is "being resubmitted," and

the Division recommends approval.

42 . Interestingly, a Board member moved to approve the

"appl ication(s)." This motion passed unanimously . In the

limited discussion, Ms. Weiner stated that, given the

representations of Mr. Shaw at the last meeting regarding the

"distinction between his business and Mrs. Valerie Panciera -

Rieth," "it is important t hat the Board members know that before

[denying Presidential Circle Application I] an ad was placed in

the local yellow pages . . . listing Presidential Circle Funeral

Home[,] and the listed telephone number rings in the building of

Respondent. "

43 . No B oard membe r expressed any interest in Ms. Weiner's

latest round of disclosures . The sole response wa s from the

Division Director, who promised little with the perfunctory

assurance, "[t]he matter will be looked into." These are the

last words of the Boar d on Respondent's application, and a

license was then duly issued on May 9, 2009 , without

restrictions or conditions.

44 . Respondent proceeded to operate as a licensed funeral

establishment at 4200 Hollywood Boulevard, as of May 9, 2009.

While operati ng, Respondent caused to be published

advertisements that promoted "pre - arrangements," which, unknown

to Respondent, required licensure that Respondent did not

possess. The violation was not willful.

45 . Mr. Brady served as the FDIC for four months un til he

was replaced by Mr. Rieth. Mr. Panciera served as a consultant

to Respondent following its commencement of licensed operation s

and maintained business cards so stating, in the format of

Respondent's other business cards, in the lobby of the funeral

home. Subsequent claims by Mr. Shaw and Mr. Rieth not to have

known of this obvious display of Mr. Panciera's business cards

cannot be credited , given the prominent location of the cards .

Additionally, Ms. Panciera - Rieth held herself out as the

director of bereavement services at Respondent and stated in an

online social site that she was self - employed at "Landmark

Funeral Home, formerly known as Panciera Funeral Home." In

fact, a fourth Panciera emerged , Ms. Panciera - Rieth's mother, in

local ads publis hed just a few days after the Board issued the

license.

46. But the most startling example of Panciera involvement

in Mr. Shaw's investment, took place o n January 21, 2011, when

Ms. Panciera - Rieth filed an application for change in ownership

of Respond ent from Mr. Shaw to herself and her husband,

Mr. Rieth. Ms. Panciera - Rieth "explaine d" only that this filing

was in error, and Mr. Shaw agreeably subscribed to this

"explanation."

47 . Based on the facts cited in the two preceding

paragraph s , Responde nt's fallback arg ument that it excluded

Mr. Panciera and his daughter from business operations is , to

put it mildly, not supported by the evidence . On a slow day at

the funeral home, Pancieras, by blood and marriage, probably

outnumbered cadavers. So, to this point, Petitioner has

established that Mr. Shaw made statements of future operations,

and operations did not conform to these statements. What

remains is proof that these statements rose to the level of

representations that induced the Board to gran t the license one

month later to a different corporate applicant, mistakenly

failing to impose conditions on the license reflective of these

supposedly material statements made by Mr. Shaw to the Board.

48. Petitioner o ffers no evidence to establish this

missing link in its theory of Count II. Stripping away

Ms. Weiner's commentary, the salient facts are that the Board

denied Presidential Circle Application I, Presidential Circle

filed a request for hearing, Ms. Panciera - Rieth sold her shares

to Mr. Shaw , Presidential Circle filed Presidential Circle

Application II before the final disposition of Presidential

Circle Application I, the Board refused to allow Presidential

Circle to withdraw Presidential Circle Application I,

Presidential Circle withdrew its request for hearing, the Board

tabled Presidential Circle Application II so Mr. Shaw could form

a new corporation and file a new application that would not be

hampered by the denial of Presidential Circle Application I, a

new corporation filed a new appli cation, and the Board granted

it at the its meeting the next month.

49. The Board took only four actions in this chain of

events. The decisionmaking mode of the Board was to listen to

argument and then vote without much , or any, discussion. The

Board d id not discuss the statements made by Mr. Shaw, it did

not accept his offers as restrictions upon the license he was

seeking for Presidential Circle, and it did not express any

intent to condition the issuance of a license to Presidential

Circle or another corporation owned by Mr. Shaw on the

performance of any conditions that might be inferred fr om

Mr. Shaw's statements.

50. The Board displayed an imperfect understanding of the

application that it was granting at the May meeting . But the

defects in the Board's understanding did not go to its failure

to attach conditions to the license. The imperfect

understanding concerned how Mr. Shaw had managed to extricate

everyone from the dilemma that he and Ms. Panciera - Rieth had

created by causing Presidential Circle to request a hearing on

the denial of Presidential Circle Application I and, prior to

final disposition, file a new application. In fact, Mr. Shaw

extricated everyone from the dilemma by doing exactly what the

Division Director, in the presence of the Board, had told him to

do. Thus, the imperfect understanding of th e Board during the

May meeting i s immaterial because it goes entirely to the form

of the transaction and does not reflect an inadvertent failure

to impose conditions on the license or o therwise acknowledge

some material representations of Mr. Shaw .

51. Petitioner seems to equate Mr. Shaw's projections of

future operations to representations of past criminal or

disciplinary history, whose materiality to licensing is

indisputable. Based on its allegations, Petitioner has somehow

distinguished Mr. Shaw's statements about future operations and

the exclusion of Ms. Panciera - Rieth and her father from his

statement that he intended to spend another $70,000 in preparing

to commence operations.

52. If the Board wishes to identify a principal's

projections of future operations as a material element of the

license that, if violated, may support discipline of the

license, the safest way to do so is for the Board to impose

conditions incorporati ng such projections in clear, enforceable

language . From the minutes, it appears that Mr. Shaw,

representing Presidential Circle, would have been agreeable to

such conditions, at least if the Board had granted the license

during the April meeting. But th e Board did not accept

Mr. Shaw's apparent offer, on behalf of Presidential Circle.

When the Board had a second opportunity, at the May meeting, to

impose these conditions, again it did not do so. These two

failures to act are not mistakes. They are ref lective of the

lack of a determination by the Board of the necessity for such

condit ions .

53 . Further undermining Petitioner's argument is the lack

of definition in Mr. Shaw's putative representations. Is the

restriction never to employ, as an employe e or contractor,

Mr. Panciera or his daughter? Is another restriction never to

allow either Panciera to serve as an officer or director of

Presidential Circle? Is another restriction never to allow

either Panciera to purchase shares in Presidential Circl e or

lend money to the corporation? Obviously, if the Board had been

interested enough in what Mr. Shaw was saying to address these

matters, they would have acquired some definition. These vague

remarks in no way may serve as a basis to have induced Boar d

action or, two and one - half years later, as a basis for

discipline.

54. It is clear from these minutes that the Board know s

its own mind. It rejected the advice of the Division Director

and denied Presidential Circle Application I. It rejected the

arguments of Presidential Circle's representatives and refused

to allow Presidential Circle to withdraw Presidential Circle

Application I. It rejected the arguments of Presidential

Circle's representatives and refused to grant Presidential

Circle Applicat ion II. And it rejected the repeated invitations

of Ms. Weiner to formalize some sort of anti - Panciera condition

upon the license issued to the entity that was to commence

operations at the storied location of 4200 Hollywood Boulevard .

55. Petitioner's alacrity in pursuing Count II is

understandable given the incontrovertibility of Mr. Shaw's

statements during the April meeting and the implausible defense

of Respondent that its subsequent operations conformed to these

representations. But to supply the missing link -- the

materiality of Mr. Shaw's statements in inducing the Board to

grant a license and the mistaken failure of the Board to impose

corresponding conditions on the license -- Petitioner shoves

aside the Board to impose on Res p ondent Petitioner' s view of

what the Board meant to do two and one - half years ago.

56. In this case , the Board has displayed a sharp sense of

self - autonomy , as well as a streamlined approach to

decisionmaking . The Board has ruled only on what it must and

has explained little.

57. Having boldly fabricated an elaborate overlay of

rulings and explanations to the laconic working s of the Board,

Petitioner, without even calling a Board member as a witness,

now invites the more circumspect Administrative Law Judge to do

th e same. Specifically, Petitioner asks the Administrative Law

Judge to join it in d ispl acing the Board by: 1) selecting some

of Mr. Shaw's statements during the April meeting;

2) attributing great significance to these statements in the

minds of a majorit y of the Board members; 3) reducing these

statements that acquired great significance in the minds of a

majority of the Board members to clear, enforceable

representations, which the Board would have done if it had not

incompetently failed to do so when it issued the license in May;

and, of course, 4) punish Respondent for its acts and omissions,

mostly two years ago, that violated Mr. Shaw's statements that

the Board thought were important, but mistakenly failed to

include as conditions of the license, and that, now, the

Administrative Law Judge has reduced to enforceable license

conditions.

58. This labyrinthine construct of Petitioner is busy with

material representations assigned to Mr. Shaw, complex thoughts

in the minds of a majority of the Board m embers, and

incompetence on the part of the Board in issuing an

unconditional license. Sometimes factfinding is best guided by

the twin principle s of lex parsimoniae , State v. Sutherby , 165

Wash. 2d 870, 891, 204 P.3d 916, 925 - 26 (Wash. 2009) (logician's

"law of parsimony" holding that the "simplest, most obvious

explanation is usually correct") and Ockham's R azor, J. S. v.

Shoreline Sch. Dist. , 220 F. Supp. 2d 1175, 1186 (W.D. Wash.

2002) ("the simplest, most obvious explanation is usually the

correct one ") ; Kramer v. U.S. , 579 F. Supp. 314, 318 (D.C. Md.

1984) ("the fewer assumptions used to explain a hypothesis, the

more reliable the hypothesis"); In re Bimini Island Air, Inc. ,

355 B.R. 358, 361 (S.D. Fla. BR 2006) ( applying Ockham's Razor ,

court rejecte d elaborate hypotheses to explain inadvertent

alteration of a memorandum, when the evidence did not

affirmatively support such hypotheses, in favor of the simplest

explanation -- the recipient altered it). Absent evidence

supporting Petitioner's elaborate h ypotheses, the more likely

explanation is that the Board did not discuss Mr. Shaw's

statements because it did not care enough about them to discuss

them, Mr. Shaw needed a new corporate applicant to escape the

licensure denial suffered by Presidential Circ le on Presidential

Circle Application I, and the Board issued an unconditional

license one month later to Respondent because it found no need

to restrict the license, probably thinking that it had already

invest ed too much time in what was, at least origin ally, a

family feud and perhaps wishing that it had followed the

recommendation of the Division Director in the first place.

CONCLUSIONS OF LAW

59 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57( 1),

Fla. Stat.

60 . Petitioner must pr ove the material allegations by

clear and convincing evidence. Dept of Banking & Fin v. Osborne

Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987).

61 . As to C ount I, section 497.152(5)(a), Florida

Statutes, prohibits offering to practice beyond the scope of the

offeror's license. As noted above, the parties do not dispute

this matter, including a finding that the violation was not

willful, and they have agreed on a $500 administrative fine for

Count I.

62 . As for Count II, Petitioner's proposed recommended

order, in paragraphs 55 - 57, possibly contends that the burden of

proof rests on Respondent because this proceeding is some sort

of extension of the applica tion process , although Petitioner may

merely be arguing that, as an applicant, Respondent had the

burden of proving its entitlement to the lice nse. If Petitioner

is contending the former , the Administrative Law Judge rejects

this contention, but the s a me result would have obtain ed if

Respondent had bor n e the burden of proof as to Count II.

63 . Section 497.152(4)(f), Florida Statutes, prohibits an

attempt to obtain a license or the obtaining of a license

through " misrepresentation or through an error of the department

or board known to the applicant ." As noted above, there is no

misrepresentation in Respondent's application, nor is any

failure of the Board to impose any conditions on Respondent's

license through an error of the Board or Division and ce rtainly

not through an error known to Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Board enter a final order finding

Respondent guilty of Count I and imposing an administrative fine

of $1000 and finding Respondent not guilty of Count II.

D ONE AND ENTERED this 27th day of October, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 27th day of October, 2011.

COPIES FURNISHED:

Thomas A. David, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Brady J. Cobb, Esquire

Tripp Scott

110 Southeast 6th Street, 15th Floor

F ort Lauderdale, Florida 33301

Edward F. Holodak, Esquire

Edward F. Holodak, P.A.

2500 Hollywood Boulevard, Suite 212

Hollywood, Florida 33020

Doug Shropshire, Director

Department of Financial Services

Division of Funeral and

Consumer Services

200 Ea st Gaines Street

Tallahassee, Florida 32399 - 0361

P. K. Jameson, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.