18-002807 Shayla Elizabeth Hoff vs. Department Of Financial Services, Board Of Funeral, Cemetery And Consumer Services Status: Closed Recommended Order on Wednesday, September 19, 2018.

Summary: Petitioner failed to demonstrate that she is entitled to a preneed sales agent license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAYLA ELIZABETH HOFF,

Petitioner,

vs. Case No. 18 - 28 07

DEPARTMENT OF FINANCIAL

SERVICES, BOARD OF FUNERAL,

CEMETERY AND CONSUMER SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this matter

on July 31 , 2018, in Ocala, Florida, before Yolonda Y. Green, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (Division).

APPEARAN CES

For Petitioner: Shayla Elizabeth Hoff, pro se

6041 Northwest 54th Terrace

Ocala, Florida 34482

For Respondent: Tom L. Barnhart, Esquire

Robert Antonie Milne, Esquire

Office of th e Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether PetitionerÓ s application for licens ure as a preneed

sales a gent should be approved.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny issued on April 26, 2018 , the

Department of Financial Services, Board of Funeral, Cemetery and

Consumer Services ( Department or Respondent) notified Petiti oner

that her application for a preneed sales agent license had been

deni ed because she had ple d nolo contendere to a felony charge

of child neglect without great bodily harm and failed to

demonstrate that she would not be a danger to the public if her

license was approved. On May 1, 2018, Petitioner timely

requested a hearing disputing the factual basis for the denial

of licensure. This matter was referred to the Division and was

assigned to the undersigned.

At the final hearing, the parties offered Joint Exhibit 1,

which was PetitionerÓ s deposition taken on July 18, 2018.

Petitioner testified on her o w n behalf. Petitioner did not

offer a ny e xhibits. Respondent presented testi mony of

Petitioner. Respondent also offered Exhibits 1 through 8, which

were admitted into evidence.

The hearing commenced as scheduled. A one - volume

Transcript of the hearing was filed on August 20, 2018.

Respondent filed a Proposed Recommended Order, which has been

considered in the preparation of this Recommended Order.

Unless otherwise indicated, all statutory references are to

Florida Statu tes (2018). 1/

FINDING S OF FACT

Based upon the evidence presented at hearing, the following

relevant Findings of Fact are made.

1. Petitioner seeks a license as a preneed sales agent so

that she may work at Good Shepherd Memorial Gardens Funeral Home

(ÐG ood ShepherdÑ) . Petitioner plans to work as a family service

advisor to help families with preneed services.

2. A preneed sales agent assists families with planning

for funeral or burial needs prior to death. Petitioner

anticipates she would conduct mee tings with potential customers

at the cemetery or in their homes.

3 . Petitioner worked with Good Shepherd from January 2018

until June 201 8 . Although Petitioner is currently not employed

at the funeral home, she anticipates that Good Shepherd would

all ow her to return to work if her application for licensure is

approved.

4 . Respondent is the state entity responsible for

regulating licensure of persons who provide preneed sales

services under chapter 497 , Florida Statutes .

5 . When applying for any l icense under chapter 497,

Respondent considers whether the applicant has a criminal

record . A n applicant must disclose any felony offense that was

committed within 20 years immediately preceding the application .

The Board then considers the applicantÓs criminal history and

wh ether the applicant would pose an unreasonable risk to members

of the public who might deal with the applicant in preneed

transactions.

6. Petitioner has a criminal history involving an incident

that occurred two years ago. In Se ptember 2016, PetitionerÓs

husband placed PetitionerÓs then eight - year - old daughter in a dog

cage because the daughter had allegedly mistreated the family

dog. Petitioner returned home from work, found her daughter in

the dog cage, and remove d her . In a separate but related

incident, Petitioner watched her husband take her daughter to

her bedroom. Petitioner entered the daughterÓs bedroom a nd saw

her husband spanking her child with a flip - flop sandal on her

behind . At no point did Petitioner attempt to protect her

daughter from her husbandÓ s abusive actions or report him to the

appropriate authorities . The abuse was ultimately reported by a

roommate who lived in the home.

7 . On June 12, 2017, Petitioner (age 28) pled nolo

contendere to one count of c hild neglect wit hout great bodily

harm, a third - degree fel ony , in violation of section s

827.03(1)(e) and 8 27.02(2)(d), Florida Statutes. The court

sentenced Petitioner to: one day of jail time with credit for

time served, probation for 24 months, 100 hou rs of c ommunity

service (within the 18 months of probation), and peaceful

contact with her daughter. Petitioner was also ordered t o pay

court costs and fees and fines in the amount of $937.00.

Adjudication of guilt was withheld.

8 . PetitionerÓs husband , who was not the c hildÓs

biological father, ple d guilty to two counts of child abuse

without great bodily harm. Among other things, h e was ordered

to have no contact with the child.

9 . Prior to the criminal offense at issue in this matter,

Petitioner had no criminal history. In addition, Petitioner has

had no known contact with law enforcement since the criminal

offense.

10 . In a Notice of Intent to Deny issued on April 26,

2018, Respondent notified Petitioner that her application for a

preneed sale s agent license had been denied as follows :

3. On June 7, 2017, Ms. Hoff pled no

contest to a felony charge of child neglect

without great bodily harm and was sentenced

to 24 months of probation, 100 hours

community service, assessed court costs and

fine s in the amount of $937.00, and her

parental rights were terminated.

4. The [A] pplicant stated that her criminal

probation will no t be completed until

June 2019 .

5. The Applicant stated that she has not

yet paid the fines and fees assessed in this

[c riminal] matter.

6. The Applicant stated that she is still

married to the gentleman she was married to

at the time of the arrest. This gentleman

was involved in the criminal allegations of

child neglect .

11 . On May 1, 2018, Petitioner timely reques ted a hearing

disputing the factual basis for the denial of licensure.

12 . Petitioner has completed 40 hours of the 100 hours

community service requirement . She anticipates that she may be

eligible for early termination of her probation after she

complet es the community service hours. Petitioner did not

present any evidence of community service other than court -

ordered community service .

13. Prior to submitting her application, Petitioner

completed approximately 15 0 to 175 hours of training in preneed

sales, covering family planning, death certificates, Veterans

Affair benefits, types of burial products, and financial plan

development.

14 . Petitioner provided no explanation regarding why she

did not protect her daughter from abuse. In addition,

Peti tioner continues to live with her husband and indicated that

she has not yet divorced him due to financial reasons.

15. Petitioner has not presented sufficient evidence to

meet her burden to prove that she is not a danger to the public.

CONCLUSIONS OF L AW

16 . The Division of Administrative Hearings has

jurisdiction over the subject matter of the proceeding and the

parties thereto p ursuant to sections 120.569 and 120.57(1) ,

Florida Statutes (2018) .

17 . The applicant has the burden of presenting evidenc e of

her fitn ess for licensure as a preneed sales agent . See Fla.

Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981). Sh e must prove entitlement to licensure by

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

1 8 . As a general matter, s ection 497.141(5) provides that

t he licensing authority (in this case , the Board) may not issue

a license under this chapter to an applicant that has a criminal

record r equired to be disclosed under section 497.142 (10) ,

unless the applicant demonstrates that issuance of the license,

according to rules adopted by the licensing authority, does not

create a danger to the public.

19 . Section 497.466 addresses requirements and procedures

for applicants seeking approval for a preneed sa les agent

license, including in pertinent part:

(2)(d) The application shall require the

preneed sales agent applicant to disclose

any criminal record, as required by

s. 497.142 .

* * *

(5) (c) An applicant with a criminal or

disciplinary record who des ires a permanent

preneed sales agent license shall petition

the board for issuance of such license using

forms and procedures as specified by rule.

The board shall issue a permanent preneed

sales agent license to an applicant with a

criminal or disciplina ry record if the board

determines:

* * *

2. That the applicant, if issued a preneed

sales agent license, would not pose an

unreasonable risk to members of the public

who might deal with the applicant in preneed

transactions.

20 . Section 497.142 provides, in pertinent part, that:

(10)(a) When a pplying for any license under

this chapter, every applicant must disclose

the applicantÓs criminal records in

accordance with this subsection. When

applying for renewal of any license under

this chapter, every licensee must disclose

only those criminal of fenses required to be

disclosed under this subsection since the

most recent renewal of her or his license

or, if the license has not been renewed,

since the licenseeÓs initial application.

(b) The criminal record required to be

disclosed shall be any crime listed in

paragraph (c) for which the person or entity

required to make disclosure has been

convicted or to which that person or entity

entered a plea of guilty or nolo contendere.

Disclosu re is required regardless of whether

adjudication is entered or withheld by the

court.

(c) Crimes to be disclosed are:

* * *

2. Any other felony not already disclosed

under subparagraph 1. that was committed

within the 20 years immediately preceding

the application under this chapter.

21 . In evaluating the application of a licensee who has a

criminal record, the Board considers the factors cited in

Florida Administrative Code Rule 69K - 1.008(2).

22 . Rule 69K - 1.008 ( 2 ) provides that :

A n applic ant for new or renewal license that

has a criminal record that is required to be

disclosed under section 497.142(10) shall

not be approved unless the applicant

demonstrates that issuance of the license

will not create a danger to the public.

Such applican t when evaluating wh ether an

applicant for license who has a criminal

record has demonstrated that issuance of the

license applied for would not create a

danger to the public. Such applicant shall

complete and submit with the application a

form DFS - N1 - 171 6, ÐCriminal History FormÑ

(Oct. 2006), which is incorporated by

refe rence 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 therein the factors listed below.

(a) A detailed explanation of the facts and

circumstances of the criminal conduct.

(b) If applicant was not the sole

perpetrator of the crime, a description in

detail of applicantÓs role on t he crime.

(c) If there are multiple crimes on

different dates, applicantÓs explanation of

why the multiple crimes should not be found

to indicate inability or unwillingness to

comply with applicable laws.

(d) The age of the applicant when the

crime(s) was committed.

(e) Whether the crime involved physical

violence, and the nature, amount and

circumstances of the violence.

(f) A detailed description of the type and

amount of personal or property harm, injury

or damage suffered by any victim or inno cent

bystander as a result of the crime(s).

(g) Whether all legally required

restitution has been made. If all legally

required restitution has not been made,

applicant shall provide an explanation of

why it has not been made.

(h) If applicant initial ly denied or failed

to disclose the criminal record on the

application for license, an explanation for

such denial or failure to disclose.

(i) Identification and description of any

evidence that applicant is remorseful

concerning the crime.

(j) Whether applicant believes they had a

drug or alcohol abuse problem in the time

frame the crime was committed and if so,

identification and description of any

evidence that applicant has been

successfully treated, or has otherwise

overcome or is in remission conc erning such

drug or alcohol abuse.

(k) Whether the applicant has successfully

completed and complied with, or is

completing or complying with, all

requirements imposed by the court in the

criminal proceedings, including but not

limited to probation, and identification and

description of any evidence in support of

applicantÓs assertion in that regard.

(l) Whether applicant has, since the

criminal court proceeding, engaged in any

activity in the nature of community service,

apart from and in addition to a ny criminal

sentencing requirements, and if so,

identification and description of any

evidence in support of applicantÓs assertion

in that regard.

(m) Any other argument by applicant as to

why applicant would not be a danger to the

public if the licensed applied for is

granted, and identification and description

of any evidence in support of such argument

and not previously identified and described

in applicantÓs presentation to the Board.

23 . Petitioner submitted a letter with her application

addressin g her criminal history. Regarding factors (a)

through (f), the record demonstrates that Petitioner provided

details concerning certain facts about the criminal conduct.

Petitioner explained that her daughter was laughing while in the

dog cage and sugge sts she was not harm ed . She also indicated

that there was no violence involved with her daughter being

placed in the dog cage. However, Petitioner provided few

details about her role in the criminal events and provided no

explanation of why she did not p rotect her daughter from abuse.

Regarding factor (i), Petitioner expressed remorse for the

incident and indicated that she Ðfeels horrible about it.Ñ

Regarding factor (k), Petitioner is com plying with her probation

term , which is scheduled to end o n June 7, 2019 . Regarding

factor (m), Petitioner did not offer any evi dence of other

community service outside of the court - ordered community service

and requirements . Factors (g), (h), and (j) were not relevant

to this matter.

24 . Rule 69K - 1.008(3) allows th e submission of reference s

that support the assertion that if licensed the applicant would

not be a danger to the public. Petitioner submitted three

letters of reference. The first letter was authored by Adriana

Hartzell , the f amily services m anager for Good Shepherd. She

described Petitioner as honest, compassionate, caring , and

punctual. Ms. Hartzell has known Petitioner for only six

months. The two remaining letters were identical and written by

Candace Morris . However, Ms. Morris signed one letter and

Robert Morris signed the other letter. The letters describ e

Respon dent as a hard worker but offer no information regarding

whether she would be a danger to the public.

25 . Based on the totality of the evidence, Petitioner has

not demonstrated that , if licensed, she would not be a danger to

the public. Accordingly, h er application should be denied at

this time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Funeral, Cemetery , a nd

Consumer Services enter a final order denying Shayla HoffÓs

application for licensure as a preneed sales agent.

DONE AND ENTERED this 19 th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 19 th day of September , 2018 .

ENDNOTE S

1/ Because a final o rder has not yet been issued for this case,

Petitioner's application is governed by current law. See Ag. for

Health Care Admin. v. Mount Sinai Med. Ctr. , 690 So. 2d 689, 691

(Fla. 1st DCA 1997).

COPIES F URNISHED:

Tom Barnhart, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399

(eServed)

Shayla Elizabeth Hoff

6041 Northwest 54th Terrace

Ocala, Florida 34482

(eServed)

Robert Antonie Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Mary Schwantes, Director

Div ision of Funeral, Cemetery ,

& Cons umer Services

Department of Financial Services

200 E ast Gaines Street

Tallahassee, Fl orida 32399 - 0361

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.