         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair Anthony Hawkins, F.D. and       :
Hawkins Funeral Services, Inc.,       :
                 Petitioners          :
                                      :
             v.                       : No. 925 C.D. 2016
                                      : SUBMITTED: November 10, 2016
Bureau of Professional and            :
Occupational Affairs, State           :
Board of Funeral Directors,           :
                   Respondent         :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                       FILED: February 16, 2017


             Blair Anthony Hawkins, F.D. (Hawkins) and Hawkins Funeral
Services, Inc. (Funeral Services) (together, Petitioners) petition for review of the
May 12, 2016, final adjudication and order of the Bureau of Professional and
Occupational Affairs, State Board of Funeral Directors (Board), which revoked
Hawkins’ funeral director’s license and imposed a civil penalty in the amount of
$90,000 on Hawkins. The Board also imposed a $10,000 civil penalty on Funeral
Services and ordered it to cease and desist from the practice of funeral directing.
We affirm.
                 On September 30, 2015, the Department of State (Department) filed a
10-count order to show cause with the Board, alleging various violations of the
Funeral Director Law (Law).1 On October 29, 2015, a hearing was scheduled for
December 1, 2015. On November 24, 2015, Petitioners notified the Board that
they had not been consulted regarding the scheduling of the hearing. The Board
continued the hearing and requested the parties advise the Board of their
availability for a two-day hearing between December 14, 2015 and January 15,
2016.       The parties advised the Board of their availability and the Board, on
December 9, 2015, scheduled the hearing for January 8, 2016.                        The parties
thereafter exchanged pre-hearing statements, identified witnesses and exhibits, and
participated in a pre-hearing conference on January 4, 2016. On January 7, 2016,
the day before the hearing, Petitioners requested a continuance via email, until
Hawkins’ criminal charges were resolved.                    The Department opposed the
continuance request. The Board denied the continuance, noting that Petitioners
had previously been granted a continuance, had indicated that they were available
for the hearing on January 8, 2016, had participated in a prehearing conference a
few days prior, and had failed to identify an emergent reason for requiring a
continuance.


                 A hearing was held on January 8, 2016, at which Petitioners renewed
their request for a continuance until after the criminal charges were resolved. The
Board again denied the continuance request. Therefore, Hawkins asserted his Fifth
Amendment right against self-incrimination and did not answer any questions


        1
            Act of January 14, 1952, P.L. (1951) 1898, as amended, 63 P.S. §§ 479.1 – 480.11.


                                                 2
presented to him at the hearing. The evidence presented by the Department is
described below.


             Hawkins’ license to practice as a funeral director was issued on
January 24, 1989, and is set to expire on February 1, 2018. Hawkins owns and
operates Funeral Services, a corporation located at 5300 Vine Street, Philadelphia.
Funeral Services was never licensed to operate as a funeral establishment in
Pennsylvania. (Board’s Adj., 5/12/16, at F.F. Nos. 1-8, at 4-5.)


             On August 31, 2015, inspectors from the Department inspected the
funeral establishment at 5300 Vine Street. The property had a sign that read
“Hawkins Funeral Services, Inc.” and indicated that Hawkins was the funeral
supervisor. The inspectors found Hawkins inside the building at 5300 Vine Street.
(Id., F.F. Nos. 13-16, at 5-6.)


             The inspectors also found a number of corpses.        The embalmed
remains of one person were in a bronze casket in a cluttered room containing
coffins with garbage on the floor. Petitioners received this body on August 15 or
16, 2015. Petitioners contracted with the family of the deceased to provide funeral
services at a rate of $2,362.00, which included cremation services. The family
owed Petitioners $400.00 at the time of the inspection. The body had a colostomy
bag attached, was dehydrated, was starting to decompose at the fingers and
abdomen, and emitted the smell of decomposition. (Id., F.F. Nos. 24-31, at 7-8.)




                                          3
             The inspectors found two additional corpses in the funeral home’s
preparation room, which was not air-conditioned.        The temperature of the
preparation room was between 85 and 90 degrees during the inspection. (Id., F.F.
Nos. 32-35, at 8.)


             The inspectors discovered that one of these bodies was received on
August 27, 2015, and directed for cremation. The family of the deceased had
selected Petitioners to handle the remains and paid $850 by credit card to cremate
the body. The inspectors found this man’s unembalmed body on a gurney in the
preparation room with a casket cover draped over it and a trash bag sitting on top
of the body. The body was discolored, swollen, covered with maggots, gnats and
flies, emitted an odor of decomposition, and was severely decomposed. (Id., F.F.
Nos. 36-44, at 8-9.)


             Another corpse was in a body bag, with a trash bag on top of it. This
body was discolored, swollen, covered with maggots, gnats and flies, emitted an
odor of decomposition, and was decomposing. (Id., F.F. Nos. 47-49, at 9.)


             In the preparation room, the inspectors also found two plastic bags
that contained human organs soaking in formaldehyde; dirty, rusty, and not
disinfected embalming tools; blood on the wall; an embalming table covered with
dried blood; and a bucket containing blood and a waxy substance that was possibly
fatty tissue. (Id., F.F. Nos. 50-54, at 10.)




                                               4
             After the Department presented its evidence, Petitioners argued that
the Board denied them a full and fair hearing when it failed to continue the hearing
until after the resolution of the criminal case, thus resulting in Hawkins’ decision
to invoke his Fifth Amendment right against self-incrimination before the Board.


             The Board determined that it did not violate Petitioners’ due process
rights and that the evidence presented proved that Hawkins committed the nine
alleged violations. Specifically, the Board concluded that the evidence showed
that Hawkins acted with gross incompetency, negligence, and misconduct in
carrying on the profession with regard to each of the deceased individuals;2
engaged in gross immorality with respect to three bodies;3 demonstrated disrespect
toward the remains of a deceased person;4 retained funds intended to pay for
funeral goods and services in excess of the value of those services; 5 failed to
promptly prepare and bury a body entrusted to his funeral establishment for that
purpose and retaining the body at his establishment or elsewhere for more than ten
days without first obtaining special permission of the Board; 6 and operated a
funeral establishment without Board approval.7




      2
        Count 1, in violation of section 11(a)(5) of the Law, 63 P.S. § 479.11(a)(5).
      3
        Count 2, in violation of section 11(a)(9) of the Law, 63 P.S. § 479.11(a)(9).
      4
        Counts 3-5, in violation of the Board’s regulations at 49 Pa. Code § 13.202(2).
      5
        Counts 6-7, in violation of the Board’s regulations at 49 Pa. Code § 13.202(13).
      6
        Count 8, in violation of the Board’s regulations at 49 Pa. Code § 13.184.
      7
        Count 9, in violation of the Board’s regulations at 49 Pa. Code § 13.91.


                                              5
               The Board further determined that Funeral Services is subject to a
civil penalty for practicing the profession of funeral directing without obtaining a
valid license because Funeral Services never obtained a license from the Board.8


               Initially, Petitioners contend that the Board abused its discretion and
violated Hawkins’ rights pursuant to the Fifth Amendment of the United States
Constitution where he was unable to testify at the hearing because he had pending
criminal charges against him. Petitioners further state that they were denied a full
and fair hearing because Hawkins was unable to testify without incriminating
himself.


               In Herberg v. Commonwealth, State Board of Medical Education &
Licensure, 42 A.2d 411, 412 (Pa. Cmwlth. 1982), a physician’s medical license
was revoked and the physician argued that during the hearing before the board, his
rights pursuant to the Fourteenth and Fifth Amendments of the United States
Constitution were violated. The physician invoked his Fifth Amendment right
against self-incrimination so that his testimony before the board could not be used
in a later criminal proceeding. Id. at 413. This Court determined that:

               ‘[T]here [is nothing] inherently repugnant to due process
               in requiring the doctor to choose between giving
               testimony at the disciplinary hearing, a course that may
               help the criminal prosecutors, and keeping silent, a
               course that may lead to the loss of his license.’


       8
          Count 10, in violation of section 17(b) of the Law, 63 P.S. § 479.17(b) (Board may
order $1000 civil penalty for practicing as a funeral director without a license), or section 13(a)
of the Law, 63 P.S. § 479.13(a) (No person shall practice as a funeral director unless he has a
valid license).


                                                6
             …[A]bsent a finding that a physician was forced to
             testify against himself, a medical disciplinary board was
             not constitutionally required to stay its proceedings until
             the criminal prosecutions against the doctor were over.

Id. (citation omitted).


             Here, Hawkins was called as a witness, chose not to testify, and was
not forced to testify.    Thus, Hawkins’ Fifth Amendment right against self-
incrimination was not violated because the Board honored Hawkins’ choice not to
testify. Further, due process rights are not violated simply because a decision on
whether to testify is arduous. See PSI Upsilon v. University of Pennsylvania, 591
A.2d 755, 760 (Pa. Super. 1991). Hawkins made what was assuredly a hard
decision not to testify; however, making this decision did not result in a violation
of his due process rights. See Herberg, 42 A.2d at 413. The Board did not err or
abuse its discretion when it held Hawkins’ disciplinary hearing prior to his
criminal proceeding, thus making Hawkins choose between testifying or asserting
his privilege against self-incrimination.


             Next, Petitioners contend that the Board abused its discretion when it
revoked Hawkins’ license and imposed an unduly harsh punishment. This Court
may interfere with the Board’s decision only if the Board flagrantly abused its
discretion or executed its duties in a purely arbitrary manner. Slawek v. State
Board of Medical Education and Licensure, 586 A.2d 362, 365 (Pa. 1991).


             Pursuant to section 11(a) of the Law, the Board may “suspend or
revoke a license of any applicant or licensee” for, among other things:


                                            7
             (5) Gross incompetency, negligence or misconduct in the
             carrying on of the profession.

             (6) Violation of or non-compliance with the provisions of
             this act or the rules and regulations of the board.

                                        ***
             (9) Gross immorality.

63 P.S. § 479.11(a)(5), (6), and (9).


             Here, the Board determined that Hawkins’ conduct related to the three
bodies, the condition of the bodies, the condition of the establishment, and the fact
that Funeral Services was not licensed by the Board, amounted to violations of
section 11(a) of the Law. A review of the record reveals that the Board’s findings
were supported by substantial evidence.        Thus, the Board did not abuse its
discretion when it revoked Hawkins’ license for violations of the Law and
regulations, as it is within the Board’s discretion to do so. See 63 P.S. § 479.11(a).


             Further, section 17(b) of the Law provides for a civil penalty up to
$1000 “on any current licensee who violates any provision of this act.” 63 P.S. §
479.17(b). However, section 2205 of the Act of July 2, 1993, P.L. 345 (Act), as
amended, 63 P.S. § 2205, provides additional powers for boards and commissions
within the Bureau of Professional and Occupational Affairs. Section 2205(b)(4) of
the Act grants the Board the power “[t]o levy a civil penalty of not more than
$10,000 per violation on any licensee . . . who violates any provision of the
applicable licensing act or board regulation.” 63 P.S. § 2205(b)(4). Thus, the Act
gives the Board the authority to impose penalties that are ten times as great as
possible penalties under the Law.       However, the Board must choose between

                                          8
imposing the civil penalty under the Law or under the Act; it cannot impose a civil
penalty under both. 63 P.S. § 2205(c).


             Here, the Board chose to impose civil penalties under section 2205 of
the Act, 63 P.S. § 2205. The Board did not assess civil penalties under the Law.
The Board did not abuse its discretion in imposing civil penalties pursuant to
section 2205 of the Act. 63 P.S. § 2205.


             Petitioners further argue that the penalty imposed was unduly harsh.
Thus, Petitioners are asking this Court to substitute its judgment and discretion for
that of the Board and impose a lessor penalty. That we are not permitted to do.
“In the absence of bad faith, fraud, capricious action or abuse of power, reviewing
courts will not inquire into the wisdom of the agency’s action or into the details or
manner of executing agency action.” Slawek v. Commonwealth, State Board of
Medical Education & Licensure, 586 A.2d 362, 365 (Pa. 1991). This Court may
not “substitute its view of what i[s] reasonable for that of the agency.”         Id.
Therefore, as long as the penalty was in accordance with the law, it is considered
reasonable. Id. Because the Board’s penalty was in accordance with the Act, it is
considered reasonable.


             Accordingly, we affirm.



                                       __________________________________
                                       JULIA K. HEARTHWAY, Judge



                                           9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Blair Anthony Hawkins, F.D. and         :
Hawkins Funeral Services, Inc.,         :
                 Petitioners            :
                                        :
            v.                          : No. 925 C.D. 2016
                                        :
Bureau of Professional and              :
Occupational Affairs, State             :
Board of Funeral Directors,             :
                   Respondent           :



                                       ORDER


            AND NOW, this 16th day of February, 2017, the order of the Bureau
of Professional and Occupational Affairs, State Board of Funeral Directors in the
above-captioned matter, is affirmed.




                                        __________________________________
                                        JULIA K. HEARTHWAY, Judge
