Woodward v. Department of Professional Regulation

432 So. 2d 146, 1983 Fla. App. LEXIS 19322

Opinion

ROBÉRT P. SMITH, Jr, Chief Judge.

In its final order disciplining this licensed funeral home and its licensed director, by license suspension and fines, the Board rejects certain findings of fact and the ultimate conclusion of the DOAH hearing officer to whom the matter was referred for hearing, and who upon the evidence recommended dismissal of the charges.

The hearing officer and the Board disagree on the key finding or conclusion, whether the licensees unlawfully “knowingly employed] unlicensed persons in the practice of funeral directing .... ” We need not rehearse the evidence. To the extent the critical issue was one of fact, conventionally considered, the hearing officer’s finding prevails notwithstanding the Board’s contrary view of the record, which in this case is not elaborated. Bekiempis v. Department of Professional Regulation, 421 So.2d 693 (Fla. 2d DCA 1982). To the extent the issue is one on which we should defer to the Board’s professional expertise, the order comes to us without the necessary elucidation of the Board’s definition of “the practice of funeral directing,” and without a record foundation that would support the views attributed to the Board upon this appeal. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

The Board’s order, consequently, is REVERSED, and the charges are DISMISSED.

SHIVERS and WIGGINTON, JJ, concur.