15-005592 Charles Adams vs. Department Of Financial Services, Board Of Funeral, Cemetery And Consumer Services Status: Closed Recommended Order on Thursday, June 16, 2016.

Summary: Petitioner failed to demonstrate that renewal of his embalmer's license would not create a danger to the public.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES ADAMS,

Petitioner,

vs. Case No. 1 5 - 5592

DEPARTMENT OF FINANCIAL

SERVICES, BOARD OF FUNERAL ,

CEMETERY AND CON SUMER SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

D.R. Alexander, Administrative Law Judge of the Division of

Administrative Hearings (DOAH ) , conducted a hearing in this

matter on May 9 , 2016, by video teleconferencing at sites in

Tampa a nd Tallahassee, Florida.

APPEARANCES

For Peti tioner : Charles Adams, pro se

Post Office Box 82345

Tampa , Florida 336 1 2 - 2345

For Respondent : Thomas L. Barnhart, Esquire

Robert A . Milne, Esquire

Office of the At torney General

The Capitol, Plaza Level 01

Tallahassee, F lorida 32 399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner 's application to renew his

embalmer's license number F042986 should be approved .

PRELIMINARY STATEMENT

In a Notice of Intent to Deny issued on August 28, 2015,

the Board of Funeral, Cemetery and Consumer Services (Board)

informed Petitioner that his application to renew an embalmer's

license had been denied because he had a criminal record and

failed to demonstrate that renewal of his embalmer's license

would not create a danger t o the public , as required by

section 497.142(10), Florida Statutes. Petitioner timely

requested a hearing, and the matter was referred by Respondent

to DO AH to conduct a formal hearing.

At the hearing, Petitioner testified on his own behalf .

By agreement of the Board, l ate - filed Petitioner 's Exhibits 1

through 4 , letters of reference, were accepted in evidence.

Respondent's Exhibits 1 through 5 were acce pted in evidence.

Exhibit 5 is Petitioner's deposition taken on April 26, 2016.

A one - volume T ranscript of the hearing was prepared.

Proposed f indings of f act and c onclusions of l aw were filed by

Respondent, and they have been considered in the preparati on of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner currently holds embalmer's license number

FO42986 , first issued on September 27, 198 2 . Petitioner says he

is currently " semi - homeless" with no permanent residential

address and receives all m ail at a post office box in Tampa . In

May 2003, he retired from the United States Postal Service , and

except for "flipping real estate intermittently," and

"hustl[ing] a little bit on the side right now," he is

unemployed.

2. The Board has licensing auth ority over the practice of

embalming. 1 /

3. Under s ection 497.142 (10) (c) 1. - 3. , an applicant for

renewal of an embalming license must disclose on the application

three categories of crimes : ( i ) any felony or misdemeanor that

is directly related to the prac tice of embalming; ( ii ) " [ a ] ny

other felony not already disclosed under subparagraph 1. that

was committed within the 20 years immediately preceding the

application under this chapter" ; and ( iii ) " [ a ] ny other

misdemeanor not already disclosed under subpara graph 1. that was

committed with in the 5 years immediately preceding the

application under this chapter." This requirement is clearly

stated not only in the License R enewal A pplication itself , but

also in the License Renewal Notice sent to a licensee . A

requirement to disclose this information is also found in

Florida Administrative Code Rule 69K - 1.007. In this case, only

the criminal convictions described in subparagraphs 2. and 3.

are in issue.

4. A criminal conviction by itself does not automatical ly

disqualify an applicant . Under the Board's licensing protocol,

i f an applicant has a criminal conviction for an offense listed

in the statute, he "shall complete and submit with the

application a form DFS - N1 - 1716, ' Criminal History Form ' (Oct.

2006), w hich is incorporated by reference in Rule 69K - 1.001,

F.A.C. Applicant shall also make a written presentation to the

Board, in the form of a letter to the Board, dated and signed by

the applicant and attached to the application, addressing

there in the [13] factors listed [in the rule]." Fla. Admin.

Code R. 69K - 1.008. The Board then reviews and considers this

information before acting on the application.

5 . On July 7, 2013, and again in 2015, Petitioner

submitted License Renewal Applications to the Boar d. Question 1

requires the applicant to state, yes or no, whether "the

licensee [has] been convicted of, pled no contest to, or

pled guilty to, any crime required to be reported pursuant to

s. 497.142(10), which crime has not previously been reported to

the [Board]." Petitioner checked the "No" box on each

application and did not submit the required letter demonstrating

that approval of his application would not create a danger to

the public.

6. The evidence shows, and Petitioner acknowledges, that

he was found guilty of the following felonies in Hillsborough

County within the 20 years immediately preceding the filing of

the application s :

9/26/07 Threatening to throw, project,

place or discharge any destructive device

§ 790.162, Fla. Stat. (He was s entenced to

24 months of incarceration for this offense ,

with credit for time already served )

5/2/13 Stalking, aggravated (repeated

after injunction) § 784.048(4), Fla. Stat.

(He was sentenced to 30 months of

incarceration for this offense , with credit

for time already served )

Petitioner says he was incarcerated in Hillsborough Co unty for

each offense , but he was released on probation before serving

the full sentences.

7 . The evidence shows, and Petitioner admits, that he was

found guilty of the follo wing misdemeanors in Hillsborough

County within the five years immediately preceding the filing of

the application s :

9/2/10 Willful violation of an injunction

for protection against repeat violence,

sexual or dating violence - § 784.047, Fla.

Stat.

9/2/1 0 Willful violation of an injunction

for protection against repeat violence,

sexual or dating violence - § 784.047, Fla.

Stat.

9/2/10 Criminal mischief (two counts) -

§ 806.13, Fla. Stat.

5/2/13 Battery - § 784.031, Fla. Stat.

5/2/13 Willful violat ion of an injunction

for protection against repeat violence,

sexual or dating violence - § 784.047, Fla.

Stat.

8 . The Board did not have access to the state criminal

database until after the 2013 application was filed and

approved. However, a backgroun d check in April 2015 , or before

his renewal application was filed, revealed Petitioner's

criminal record. By letter dated May 8, 2015, the Board

requested that Petitioner file a written response regarding his

criminal record so that it could decide wheth er to take action

"against [his] license." See Resp. Ex. 1, p. 11 . No response

was filed. On July 10, 2016, the Board informed Petitioner that

in light of his criminal record, it would consider whether his

license could be renewed at its meeting on Augu st 6 , 2016, and

invited him to attend. Id. at 8. He did not attend the

meeting. On August 28, 2016 , t he Board issued its Notice of

Intent to Deny the 2015 application . 2 / The application was denied

on one ground only -- that Petitioner failed to demonstr ate that

renewal of the license would not create a danger to the public .

Petitioner timely requested a hearing.

9 . Petitioner gave no clear explanation as to why he did

not disclose the criminal convictions . He noted the offenses

did not relate to the p ractice of embalming, he is not "a goo d

reader , " and perhaps he misunderst ood the clear and unambiguous

language in the application and License Renewal Notice .

10. Also, Petitioner's testimony regarding the nature of

the crimes is somewhat confusing and lacking in details . 3 / While

characterizing them as "animal related," Petitioner blamed them

on dispute s with "adversarial neighbors," drinking too much

alcohol , using poor judgment , and taking " the law into [ his ] own

hands . " He now agrees this was "total ly improper" conduct on

his part . He testified that he no longer drinks alcoholic

beverages , he regularly attends Alcoholic Anonymous meetings,

and he has a better philosophy on life. To the extent they

corroborate Petitioner's testimony that he has turn ed a new page

in his life , the four c haracter reference letters, all hearsay

in nature, have been considered. See Fla. Admin. Code R. 69K -

1.008(3) ("an applicant subject to this rule should submit any

letters of reference they can obtain in support of thei r

assertion that if licensed they would not be a danger to the

public").

1 1 . As to the first felony conviction in 2007, Petitioner

explained that cars were speeding through his neighborhood and

he feared that his cat might be hit by one of the m . To force

cars to slow down, he parked his car in the two - lane street in

front of his house , blocking traffic in one lane, and told two

complaining neighbors , "Touch that car and it will blow."

Although he says there was no explosive device on the car, he

was arre sted and later convicted of threatening to discharge an

explosive device. Petitioner admits he was drinking at the time

of the incident.

1 2 . The second felony conviction in 2013 arose out of a

dispute with a nother neighbor who had an autistic child in hi s

late teens. It was not "animal related." Petitioner says he

observed the teenager dumping "street garbage " over his back

fence. One thing led to another, and the mother, who Petitioner

characterized as the real "instigator, motivator, and

provocateur, " later obtained an injunction against him. One

evening Petitioner drove to a convenience store for gasoline and

says by pure accident he ended up at a gasoline pump adjacent to

the mother , who was also refueling her vehicle . He was later

arrested and co nvicted of repeated and aggravated stalking.

Petitioner admits he was drinking at the time of the incident.

1 3 . No explanation was given for the five misdemeanor

convictions except a contention that the violations of the

injunction obtained by the moth er were not willful . Petitioner

could not recall the facts surrounding the criminal mischief or

battery charge s . 4 /

1 4 . Petitioner testified that while he has not actively

practiced embalming since the mid - 1980s, or some 30 years ago,

he has performed ar ound 5,000 "hands - on embalming" cases without

a problem , and he is not a danger to the public . He desires to

maintain his license in the event he ever goes "back in [the

business] part - time or whatever." If the license is renewed, he

agrees he would come into contact with the deceased's relatives ,

other members of the public, such as doctors and medical

examiners, and other employees at the funeral home . No evidence

was produced regarding his ability to perform embalming services

after being inactive in the profession for so many years.

CONCLUSIONS OF LAW

1 5 . The applicant has the burden of presenting evidence of

his fitness for licensure as an embalmer. See Fla. Dep't of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 , 788 (Fla. 1st DCA

1981) . He must pro ve entitlement to licensure by a

preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

1 6 . Section 497. 141(5) provides that effective July 1 ,

2011, the Board may not renew a license held by an applicant

who has a criminal record required to be d isclosed under

section 497.142(10) unless the applicant demonstrates that

issuance of the license does not create a danger to the public.

See also Fl a. Admin. Code R. 69K - 1.007 . A lso, a licensee must

be "of good moral character" and with "no demonst rated history

of lack of trustworthiness or integrity in business or

professional dealings." § 497.368( 1)(c), Fla. Stat.

1 7 . Rule 69K - 1.008 (2) , not directly addressed by either

party, provides that in evaluating the application of a licensee

who has a cr iminal record, the Board will consider factors (a)

through (m) cited in the rule. Th is information is normally

submitted to the Board in the form of a letter at the time the

application is filed. H owever, Petitioner did not file a letter

with his applica tion s .

1 8 . Factor (a) requires "a detailed explanation of the

facts and circumstances of the criminal conduct." Petitioner

failed to provide a detailed explanation. Factors (b), (c),

(d), (e), (f), (g), (k), and (l) require other details

concerning vari ous aspects of the crimes , such as whether

restitution has been made, whether t he licensee has performed

any community service apart from any criminal sentencing

requirements, whether physical violence was involved, and the

damage , if any, suffered by the victim . Petitioner's vague and

somewhat confusing explanation fails to fill in the blanks for

any of these factors. Factor (h) provides that i f an applicant

fail s to disclose the criminal record on the application, he

must provide an "explanation for suc h denial or failure to

disclose." Here, Petitioner's explanation that he did not

understand the clear and unambiguous language in the application

and License Renewal Notice is not credible. Factor (i) allows

the Board to consider "any evidence that the a pplicant is

remorseful concerning the crime." At heari ng, Petitioner

admitted that his actions were wrong and expressed regret for

his conduct. Factor (j) takes into account whether the

applicant had an alcohol abuse problem when the crime was

committed, and if so, evidence that the applicant has been

successfully treated and is in remission. The record shows that

alcohol abuse probably was a major contributing factor in the

commission of the crimes. Petitioner says he no longer drinks

alcohol and regul arly attends Alcoholic Anonymous meetings.

Finally, factor (m) allows an applicant to submit any other

argument as to why he would not be a danger to the public if the

license applied for is granted. Other than Petitioner's

testimony that he was a compet ent embalmer when he was actively

engaged in the profession and his belie f that he would not be a

danger to the public, no other evidence was submitted.

1 9 . Rule 69K - 1.008(3) allows the submission of letters of

reference that support the assertion that if licensed the

applicant would not be a danger to the public. Petitioner

submitted four letters. See Pet'r Ex. 1 - 4 . While describing

Petitioner as courteous, respectful, and friendly, t he writers

of two letters have only known him for around a year. A third

writer has known him for two years and says he knows Petitioner

"has made mistakes in the past" but described him as "courteous,

respectful and very friendly." A fourth writer was a co - worker

at the Post Office , and while acknowledging that Petitio ner

"does have some demons , " described him as a caring individual

who would give his shirt off his back to help others.

20 . Given the totality of the evidence, it is concluded

that Petitioner has not demonstrated that if licensed, he would

not be a danger to the public. Accordingly, h is application

should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Funeral, Cemetery and

Consumer Services e nter a final order denying Petitione r's

application for renewal of his embalmer's license .

DONE AND ENTERED this 16th day of June , 201 6 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 16th day of June , 201 6 .

ENDNOTE S

1/ C hapter 497 creates both a Division of Funera l, Cemetery and

Consumer Services (Division) and a Board of Funeral, Cemetery and

Consumer Services. The headquarters and records of the Board are

in the Division located in Tallahassee. See § 497.101(6), Fla.

Stat. However, when an administrative law j udge conducts a

hearing with respect to the issuance or denial of a license under

chapter 497 , he shall submit his recommended order to the Board.

See § 497.141(6), Fla. Stat.

2/ Although the Notice of Intent to Deny refers to Petitioner's

pending app lication, the record shows Petitioner's renewal

application was not date - stamped by the Division until

September 24, 2015, or almost a month after the denial notice was

sent. See Resp. Ex. 3. The undersigned assumes, however, it was

timely received by the Board and later filed with the Division.

3/ For example, on the one hand he testified he retired from the

Post al Service in 2003, but he also testified that the offense

underlying the 2007 felony conviction took place after he had

been working overti me that night at the Post Office, followed by

a Post Office party "at one of the watering holes."

4 / During the hearing, reference was made to a third felony

charge involving the unlawful recording of a telephone call with

the Social Security Administr ation. However, this charge is not

included in the Notice of Intent to Deny and has not been

considered.

COPIES FURNISHED:

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee , Florida 32399 - 0 390

(eServed)

Douglas A. Shropshire, Jr., Director

Board of Funeral, Cemetery

and Consumer Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

Charles Adams

Post Office Box 8234 5

Tampa , Florida 336 1 2 - 2345

Thomas L. B arnhart, Esquire

Office of the Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns within

15 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.