19-001639 Charles Williams vs. Board Of Funeral, Cemetery And Consumer Services Status: Closed Recommended Order on Monday, September 9, 2019.

Summary: Despite the seriousness of his criminal offense, applicant demonstrated rehabilitation and that he presents no danger to the public; recommended that applicant receive license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES WILLIAMS,

Petitioner,

Case No. 19 - 1639

vs.

BOARD OF FUNERAL, CEMETERY AND

CONSUMER SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to n otice, a hearing was conducted in this case on

July 19, 2019, in Palatka, Florida, before Lawrence P. Stevenson,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles Williams, pro se

265 Harbor Drive

Palatka, Florida 32177

For Respondent: Tom Barnhart, Esquire

Robert A ntoine Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF T HE 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.

PRELIMINARY STATEMENT

By issuance of a Notice of Intent to Deny, issued on

March 1, 2019, the Board of Funeral, Cemetery and Consumer

application for licensure as a funeral director and embalmer was

den ied. The Notice of Intent to Deny provided as follows, in

relevant part:

3. On March 6, 2006, Applicant pled nolo

contendere to LEWD and LASCIVIOUS

MOLESTATION, a first - degree felony pursuant

to Section 800.04(5)(b), F.S. The Applicant

was adjudged guil ty of this crime and

sentenced to 12 years of imprisonment and

13 years of sex offender probation.

4. Applicant has approximately nine (9)

years remaining on his sex offender

probation.

5. Section 497.142(10), F.S., provides in

part:

(10)(a) When app lying for any

license under this chapter, every

applicant must disclose the

applicant’s criminal records in

accordance with this subsection.

When applying for renewal of any

license under this chapter, every

licensee must disclose only those

criminal offe nses 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 licensee’s 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:

1. Any felony or misdemeanor, no

matter when committed, that was

directly or indirectly related to

or involving any aspect of the

pra ctice or business of funeral

directing, embalming, direct

disposition, cremation, funeral or

cemetery preneed sales, funeral

establishment operations, cemetery

operations, or cemetery monument

or marker sales or installation.

2. Any other felony not alre ady

disclosed under subparagraph 1.

t hat was committed within the

20 years immediately preceding the

application under this chapter.

3. Any other misdemeanor not

already disclosed under

subparagraph 1. that was committed

within the 5 years immediately

pr eceding the application under

this chapter.

6. Section 497.141(5)(a), provides in part:

(5)(a) The licensing authority

ma y not issue, and effective

July 1, 2011, may not renew, a

license under this chapter to an

applicant that has a criminal

record req uired to be disclosed

under s. 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.

7. Section 497.152(2), F.S., provides that

grounds f or denial of any application

includes CRIMINAL ACTIVITY that relates to

the practice of, or the ability to practice,

a licensee’s profession or occupation under

this chapter.

8. Pursuant to Section 497.368(1)(c), F.S.,

(embalmers) and Section 497.373(1)( c), F.S.,

(funeral directors), applicants may not be

licensed unless the Board determines the

applicant is of good character and had no

demonstrated history of lack of

trustworthiness or integrity in business or

professional matters.

9. The Board conclud es that the Applicant

did not demonstrate that issuance of the

license did not create a danger to the

public and that the Applicant did not

establish good character. Applicant did not

satisfy the requirements set forth in

Section 497.141(5)(a), 497.152(2) ,

497.368(1)(c) and 497.373(1)(c), Florida

Statutes. The Board also finds that

applicant’s criminal activity relates to the

practice of, or the ability to practice, the

professions or occupations for which the

applicant seeks licensure.

Mr. Wiliams timel y requested a formal hearing on the denial

of his application, and on March 27, 2019, the Board referred the

matter to the Division of Administrative Hearings ("DOAH") for

the assignment of an Administrative Law Judge to conduct a formal

administrative hea ring.

The final hearing was originally scheduled for May 30, 2019.

One continuance was granted and the hearing was rescheduled for

July 19, 2019, on which date it was convened and completed.

At the hearing, Mr. Williams presented the testimony of

Tiffany Desjardins, a friend and co - worker at KeHE Distributors;

Kale Cooper, Petitioner’s immediate supervisor at KeHE

Distributors; Paul Roach, a co - worker at KeHE Distributors;

Jennifer Brown, the mother of Petitioner’s lifelong friend, Angie

Knighten, who also testified on Petitioner’s behalf; Quincey

Masters, owner and funeral director of Masters Funeral Home; and

Teresa Perez, a therapist with ITM Group in Gainesville , who has

treated Petitioner for the past two years. The Board presented

no witnesses at the hearing.

The parties agreed to the a dmission of the Board’s

Exhibit 1, which is Mr. Williams’s licensure application and

accompanying documents. The parties also agreed to the admission

of the following deposition transcripts: Charles Williams;

Charles Miller, a co - worker of Petitioner’s at KhHE Distributors;

Ruth Ann Miller, the wife of Charles Miller; Eric Altman, a long -

time acquaintance of Petitioner’s who became friendly with him as

they both progressed in the funeral business; Tony Sweat, a

friend who met Petitioner when they both worked at Kirkland

Enterprises, a landscaping company in Green Cove Springs; and

Summer Sweat, the wife of Tony Sweat.

The one - volume Transcript of the final hearing was filed

with DOAH on August 2, 2019. Both parties tim ely filed Proposed

Recommended Orders, which have been duly considered in the

writing of this Recommended Order.

Except where otherwise indicated, all references to the

Florida Statutes in this Recommended Order are to the 2018

edition.

FINDING S OF FACT

Ba sed on the evidence adduced at hearing, and the record as

a whole, the following F indings of F act are made:

1. Petitioner, Charles Williams, born on February 12, 1976,

attended Gumpton - Jones College of Funeral Service in Atlanta,

Georgia, graduating in Fe bruary 1998. Mr. Williams received his

embalmer license in March 1999 and became a licensed funeral

director on April 12, 1999.

2. Mr. Williams was working as a licensed funeral director

and embalmer at George H. Hewell and Son F uneral H ome in

Jacksonvil le 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 o rgans 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.

3. 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 cour t 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), Flor ida

Statutes.

4. 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 Fun eral 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 intern ship at

Masters Funeral Home and then began his studies at Gupton - Jones

College of Funeral Service in September 1996. He graduated with

an a ssociate of s cience degree on February 27, 1998.

5. Mr. Williams returned to Palatka and applied for his

funeral d irector 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

Jacksonvill e, 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.

6. 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 unifo rmed security guard at the Clay

County Courthouse.

7. 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 gra nted an entry level separation from the Air

Force after completing basic and security forces training.

8. 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 pe rformed every conceivable service that

a licensee could, including meeting with families, embalming,

digging graves , and transporting bodies. He did whatever needed

doing.

9. In December 2003, Mr. W illiams went to work for

George H. Hewell and Son Funera l 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.

10. Mr. Williams testified that he was s entenced in 2006

and served 10 y ears 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.

11. 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 chil dren 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.

12. 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

f or 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 Cov e Springs. Since mid - 2016,

Mr. Williams has worked as a receiver and forklift operator at

KeHE Distributors, a distributor of organic foods.

13. While he was incarcerated, Mr. Williams allowed his

funeral director and embalmer licenses to lapse. On May 31,

2018, Mr. Williams submitted to the B oard 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 .

14. 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.

15 . 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 testifi ed 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

work record and is one of the most popular members of the

workforce at KeHE Distributors.

16. 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.

17. 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 husba nd 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 doe s 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.

18. 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.

19. Eric Altman is a funeral director at Johnson Overturf

Funeral Home in Palatka. H e is a few years older than

Mr. Williams and has known Mr. Williams since they were both

children in the s ame 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.

20. 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.

21. Mr. Altman testified that everything Mr. Williams did

as a funeral director was appropriate. Mr. Williams showed

initiati ve 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.

22. Mr. Altman testified that he had been aware that

Mr. Williams went to prison for 10 y ears but did not have any

first hand 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 c ould 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.”

23. Tony Sweat is a self - em ployed 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.

24. After both men left Kirkland Enterprises, they stayed

in touch b y 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.

25. Mr. Sweat testified that in January 2019, hi s 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.

26. Summer Sweat testified that Mr. Williams was helpful,

professional, supportive, and possessed a lot of t echnical

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.

27. Mr. Sweat testified that he spoke with Mr. Williams

about his criminal conviction. Mr. Williams told Mr. Sweat that

he h ad 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 wan t to molest a little girl.

Mr. S weat believed Mr. Williams’s story.

28. When counsel for the Board showed him the actual arrest

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 Enter prises. It made sense that

Mr. Williams would choose to shade his story in order to avoid

ostracism, or worse, from a group of co - wo rkers 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.

29. 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.”

30. Tiffany Desjardins is Mr. Williams’s immediate

sup ervisor at KeHE Distributors. She testified that Mr. Williams

is diligent, punctual, attentive to detail, and a hard worker.

31. Ms. Desjardins attended the funeral of Mr. Williams’s

sister. Though he was not workin g in any official capacity,

Mr. Will iams assisted the funeral director, Quincey Masters, in

escorting and seating the family. Ms. Desjardins noted that

Mr. Williams conducted himself in a professional manner.

32. 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.

33. Kale Cooper is the inbound superviso r 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.

34. 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.

35. Mr. Roach testified th at 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.

36. 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. Wi lliams since childhood.

Ms. Knighten immediately suggested to her mother that they call

Mr. Williams for assistance i n making the arrangements.

Mr. Williams rode to Jacksonville with someone from the Masters

Funeral Home to remove the body. Ms. Brown wa s 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. Wil liams did for her

family.

37. 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 M r. Williams had

done, she would still not hesitate to call on Mr. Williams to

handle the final arrangements for her loved one.

38. Angie Knighten, Ms. Brown’s daughter, also testified on

behalf of Mr. Williams. She had known Mr. Williams when they

were c hildren 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.

39. Ms. Knighten asked Mr. Williams about the a nkle

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 d id 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.

40. Ms. Knighten stated that this conversation occurred in

about 2016 or 2017 and that she had not discussed the matter

agai n with Mr. Williams. She conceded that she had no way of

knowing whether Mr. Williams was continuing to deny culpability

for his crime.

41. Quincey Masters III is the owner and operator of

Masters Funeral Home in Palatka and Interl achen. 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.

42. 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 s chool and was trained in the business there.

43. 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 e mbalmer and , according to Mr. Masters ,

was very good at it.

44. 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.

45. 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 testifie d that

he did them well.

46. 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.

47. Mr. Masters testified that Mr. Williams di d 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 work site, 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 Gai nesville

at least once. Mr. Williams always showed the proper respect and

was always available to go out on removal jobs when called.

48. 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.

49. 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.

50. 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

a chieve the maintenance level of treatment.

51. 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 Sexua l 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 th e 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.

52. Board counsel placed great emphasis on the risk posed

by Mr. Williams as expressed by the 11 - perc ent 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 r ate not as an express ion 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. Th e undersigned credits her opinion.

53. Ms. Perez testified that Mr. Williams consistently

engages meaningfully in treatment. He is self - disclosing and

helpful to other members of h is group therapy sessions.

Ms. Perez stated that Mr. Williams has consist ently 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 ident ifying 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, t hen it may be

counter - therapeutic to insist that the client continue to

identify himself as a sex offender. Ms. P erez believes that

Mr. Williams meets these criteria.

54. 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.

55. 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.

56. 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 almos t 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. Willi ams testified that he poses no danger to the public.

57. 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 ag es 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 con tact 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.

58. In summary, the Board has stipulated that Mr. Williams

possesses th e 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.

59. 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

dire ctor 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.

60. 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

offe nder’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.

6 1. 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.

62. However, it was not just Mr. Masters b ut 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 witn ess stated that

they would , without hesitation , employ Mr. Williams to make the

final arrangements for their loved ones.

63. The undersigned noted how often witnesses told of

Mr. Williams dropping whatever he was doing to help a friend wi th

some funeral - r elated need -- helping to arrange and host the

service, picking up the body of a recently deceased relative,

assuming responsibility for the safe tra nsport of a loved one’s

ashes -- without thought of remuneration.

64. 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 vigo r, 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.

CONCLUSIONS OF LAW

65. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to c hapter 120,

Florida Statutes. See also § 497.141(6), Fla. Stat.

66. Petitioner has applied to bec ome licensed as a

funeral director and embalmer in Florida pursuant to section

497.141, Florida Statutes.

67. The Board is the licensing authority to approve or

deny applications for initial licensure of all types under

chapter 497. § 497.103(1)(j), Fla. Stat.

68. Petitioner has the burden to prove by a preponderance

of the evidence that he satisfies the requirements for

licensure as a funeral director and embalmer. See Dep ’ t of

Banking & Fin. v. Osborne, Stern & Co. , 670 So. 2d 932, 934

(Fla. 1996); De p ’ t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d

778, 787 (Fla. 1st DCA 1981).

69. Section 497.141(5)(a) provides in pertinent part:

(5)(a) The licensing authority may not

issue, and effective July 1, 2011, may not

renew, a license under this chapter to an

applicant that has a criminal record

required to be disclosed under

s. 497.142(10) [1/] 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 . . . .

7 0. Section 497.142(10) provides in pertinent part:

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

this chapter, every applicant must disclose

the applicant’s criminal records in

accordance with this subsection . . . .

(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.

Disclosure is required regardless of whether

adjudication is entered or withheld by the

court.

(c) Crimes to be disclosed are:

1. Any felony or misdemeanor, no matter

when committed, that was that was directly

or indirectly related to or involving any

aspect of the practice or business of funeral

directing, embalming, direct disposition,

cremation, f uneral or cemetery preneed

sales, funeral establishment operations,

cemetery operations, or cemetery monument or

marker sales or installation.

2. Any other felony not already disclosed

under subparagraph 1. that was committed

within the 20 years immediat ely preceding

the application under this chapter . . . .

71. Mr. Williams has consistently taken the position that

his crime was unrelated to any aspect of the practice or business

of funeral directing or embalming and thus not required to be

disclosed u nder section 497.142(10 )(c)1. In his application,

Mr. Williams purported to disclose his crime pursuant to section

497.142(10)(c)2 . , because it was a f elony committed within the

20 years preceding his application.

72. The Board’s Notice of Intent to De ny does not assert

that Mr. Williams’s application is being denied because the

felony in question was “directly or indirectly related to or

involving any aspect of the practice or business of funeral

directing [or] embalming” under section 497.142(10)(c)1.

Rather, the Board specifically cites sections 497.152(2),

bases for its denial decision.

73. Section 497.152(2) provides in pertinent part:

Disciplinary grounds. — This section sets

for th conduct that is prohibited and that

shall constitute grounds for denial of any

application, imposition of discipline, or

other enforcement action against the

licensee or other person committing such

conduct. For purposes of this section, the

requiremen ts of this chapter include the

requirements of rules adopted under

authority of this chapter. No subsection

heading in this section shall be interpreted

as limiting the applicability of any

paragraph within the subsection.

* * *

(2) CRIMINAL ACTIVITY. — Being convicted or

found guilty of, or entering a plea of

guilty or nolo contendere to, regardless of

adjudication, a crime in any jurisdiction

that relates to the practice of, or the

ability to practice, a licensee’s profession

or o ccupation under this chapter.

74. Section 497.368(1)(c) provides:

(1) Any person desiring to be licensed as

an embalmer shall apply to the licensing

authority to take the licensure examination.

The licensing authority shall examine each

applicant who h as remitted an examination

fee set by rule of the licensing authority

not to exceed $200 plus the actual per

applicant cost to the licensing authority

for portions of the examination and who has:

* * *

(c) Made disclosure of the applicant’s

criminal reco rds, if any, as required by

s. 497.142. The applicant shall submit

fingerprints in accordance with s. 497.142.

The applicant may not be licensed under this

section unless the licensing authority

determines the applicant is of good

character and has no de monstrated history of

lack of trustworthiness or integrity in

business or professional matters.

75. Section 497.373(1)(c) is identical to section

497.368(1)(c) except that it references licensure as a

“funeral director” rather than as an “embalmer.”

76. Thus, the grounds for the Board’s initial decision

to deny licensure to Mr. Williams are that his offense, lewd

and lascivious molestation of a child under 12 years of age,

relates to the practice of, or the ability to practice, the

profession of funeral director and embalmer under section

497.152(2); that issuance of the license to Mr. Williams

would create a danger to the public under section

497.141(5)(a); and that Mr. Williams is not of good

character under sections 497.368(1)(c) and 497.373(1)(c). 2/

7 7. Mr. Williams contends that his offense does not

directly relate to the practice of funeral directing or

embalming, or the ability to practice either profession. In

answer, the Board correctly states that in license

revocation cases , the courts have no t limited the reach of

similar statutes to crimes that are committed during the

practice of a licensed profession or that are related to the

technical ability to practice such a profession.

78. In the oft - cited case Doll v. Dep ar t ment of

Health , 969 So. 2d 1103, 1106 (Fla. 1 st DCA 2007), the court

stated:

Several cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor's license after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987). The

Fift h District Court of Appeal has held that

although an accountant’s fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant’s license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. Dep’t of Prof’l Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984). These

cases demonstrate, in our view, that

appellee did not err by concluding Doll's

conviction was “related to” th e practice of

chiropractic medicine or the ability to

practice chiropractic medicine.

79. Of particular relevance to this case, the Board cites

Rothar v. Fl orida Real Estate Comm ission , Case No. 17 - 1855 ( Fla.

DOAH July 26, 2017), 3/ in which Administrat iv e Law Judge

Yolanda Y. Green found that aggravated sexual abuse of a child

was related to the practice of real estate for the purpose of

considering whether to grant a license application. ALJ Green

reasoned as follows:

28. Respondent’s behavior in eng aging in

aggravated sexual abuse of a child shows

total disregard for one of the most

vulnerable members of our population. It is

the lack of respect for and exploitation of

another, for personal pleasure, that

demonstrates impaired judgment.

Petitioner’ s crime directly relates to the

practice of real estate.

80. This conclusion would appear to end the inquiry.

However, the real estate licensing statutory scheme at issue

in Rothar made provision for the offending applicant to gain

approval when “becaus e of lapse of time and subsequent good

conduct and reputation, or other reason deemed sufficient,

it appears to the commission that the interest of the public

and investors will not likely be endangered by the granting

of registration.” § 475.17(1)(a), Fl a. Stat. ALJ Green

concluded as follows:

33. Here, Petitioner has offered letters

from business partners and customers

attesting to his good moral character and

his reputation for fair and honest dealings

in real estate transactions. Further, he

has bee n gainfully employed in the real

estate arena for 14 years with access to the

homes of customers without any complaints.

Petitioner has met all conditions of his

sentence and has been released from his

requirement to register as a sex offender.

Furthermo re, there has been a substantial

passage of time since his criminal offense,

nearly 25 years ago. The greater weight of

evidence establishes that the criminal

offense was an isolated incident rather than

part of a pattern of similar conduct, which

is a re levant factor when considering

whether he would be a danger to the public.

Respondent did not offer evidence of

misconduct or lack of good moral character

since the incident in 1993 to rebut

Petitioner’s evidence that he will not pose

a threat to the publ ic and investors. Thus,

his application should be approved.

81. It is concluded that in the instant case it would

be grossly unfair, and possibly a violation of

Mr. Williams’s due process rights, to ignore the voluminous

evidence of his good character, generally law abiding

nature, ample professional qualifications, and ongoing

rehabilitation, merely because section 497.152 lacks express

language allowing an applicant to demonstrate fitness for

licensure in spite of his criminal history. The statute

its elf is not mandatory: it does not state that the Board

must reject an applicant whose conduct m eets the criteria of

subsection (2); it merely states that such conduct shall “constitute grounds for denial of any application.” The

Board should be free to j udge those grounds in accordance

with all the facts and circumstances presented by the

applicant.

4/

82. Counsel for the Board has argued, not

unreasonably, that sections 497.152(2) and 497.141(5)(a)

provide separate and independent grounds for denying

M r. Williams’s application. However, the undersigned would

urge that, consistent with due process principles, the

statutes should be read in tandem. Section 497.141(5)(a)

provides that the Board may issue a license to an applicant

with a criminal record t hat requires disclosure “if the

applicant demonstrates that issuance of the license . . .

does not create a danger to the public.” This provision

should be read as the complimentary “rehabilitation”

provision to section 497.152(2), allowing the Board to

c onsider the applicant’s post - conviction history in making

its ultimate determination.

83. The chief purpose of regulating licensure as a

funeral director or embalmer is the protection of the public

health and safety. § 497.002(3), Fla. Stat. Reading

se ctions 497.152(2) and 497.141(5)(a) separately could lead

the Board to conclude that an applicant presents absolutely

no danger to the public but still must be denied because of

his criminal past. Such a conclusion would have less to do

with protecting th e public than with continuing to punish an

individual who has done everything society has asked of him

to rehabilitate himself. If the Board concludes that

issuing a license to Mr. Williams would not create a danger

to the public, the undersigned would ur ge that the governing

statutes give the Board the discretion to further conclude

that Mr. Williams should receive a license.

84. Board counsel urges that Mr. Williams has not met

the requirement of “good character” set forth in sections

497.368(1)(c) and 497.373(1)(c). Obviously, Mr. Williams

could not be said to have had “good character” when he

committed the crime that stands as the only reason to

consider denying licensure. Based on the Findings of Fact

above, however, it is concluded that Mr. William s has so

rehabilitated himself as to meet the “good character”

requirement of the cited statutes.

85. A professional license is not a right, but a privilege

granted by the State. Borrego v. Ag . for Health Care Admin. , 675

So. 2d 666, 668 (Fla. 1st DCA 19 96). An administrative agency ,

such as the Board , has "particularly broad discretion in

determining the fitness of applicants who seek to engage in an

occupation in the conduct of which is a privilege rather than a

right." Dep ’ t of Banking and Fin. v. Os borne Stern & Co. , 670

So. 2d at 934 ( quoting Osborne Stern & Co. v. Dep ’ t of Banking

and Fin. , 647 So. 2d 245 (Fla. 1st DCA 1994) ) (Booth, J.,

concurring and dissenting). Administrative agencies possess

discretion when determining whether an applicant sho uld receive a

license, especially when the agency is regulating an occupation

which is deemed to privilege rather than a right. Astral

Liquors, Inc. v. Dep ’ t of Bus. Reg. , 463 So. 2d 1130, 1132 (Fla.

1985).

86. Based on all the evidence, it is concluded that the

Board should exercise its discretion in favor of granting a

combined funeral director and embalmer license to Charles

Williams.

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

f inal o rder 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.

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 .

ENDNOTE S

1/ It is undisputed that Mr. Williams’s crime was reportable

under section 497.142(10).

2/ The Board did not suggest that Mr. Williams has ever shown

lack of trustworthiness or integrity as those qualities relate to

business matters.

3/ The undersigned has also considered Department of Bus iness &

Professional Reg ulation , Constr uction Indus try Lic ensing Board v.

Walk , Case No. 18 - 3505PL (Fla. DOAH Oct. 18, 2018) , and Raines v.

Department of Business & Professional Regulation, Construction

Industry Licensing Board , Case No. 08 - 2718 (Fla. DOAH Dec. 15,

2008), cited in the Board’s Proposed Recommended Order. Both

cases discuss the relationship between a contra ctor’s license and

sex offenses of a similar nature to that under consideration in

the instant case. The undersigned finds these cases inapposite

because of their emphasis on the free access that a licensed

residential contractor may have to the home of a client, and the

client’s expectation that the contractor will be on the premises

frequently to oversee his employees.

Any access that Mr. Williams might have to a client’s home

would be under very narrow constraints, such as a call to

retrieve a body, which in any event is an unlicensed activity.

In his capacity as a funeral director and embalmer, Mr. Williams

would never be free to roam a client’s house at will.

4/ If the statute does not give the Board discretion to take

into account the subseq uent history of a criminal offender, then

it comes uncomfortably close to creating an irrebuttable

presumption that a person who has committed a crime relating to

the practice of a profession may never obtain a license. The

Board’s discretion to consider rehabilitation is of particular

concern given that, under the governing case law approvingly

catalogued in Doll , virtually any crime may be said to “relate”

to virtually any profession by establishing the offender’s bad

character and/or poor judgment.

COPIES FURNISHED:

Tom Barnhart, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

(eServed)

Charles Williams

265 Harbor Drive

Palatka, Florida 32177

Robert Antonie Milne, Esquire

Office of the Attorney Gene ral

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Mary Schwantes, Director Division of Funeral, Cemetery &

Consumer Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0361

(eServed)

Ju lie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 03 90

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin 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.