IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marc Anthony Hauad,
:

Petitioner

:

:

v.

: No. 1180 C.D. 2004

: Argued: February 28, 2005
State Board of Funeral Directors,
:

Respondent

:

BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: March 18, 2005

Marc Anthony Hauad petitions this court for review of an order of the
State Board of Funeral Directors (Board) that revoked his license to practice
funeral directing1 and levied a civil penalty against him in the amount of $1,000.2

1 Section 11 of the Funeral Director Law (Law), Act of January 14, 1952, P.L. (1951) 1898,
as amended, 63 P.S. § 479.11, provides in pertinent part:
(a) The board, by a majority vote thereof, may refuse to grant,
refuse to renew, suspend or revoke a license of any applicant or
licensee, whether originally granted under this act or under any
prior act, for the following reasons:

. . . .
(3) The conviction of a crime involving moral turpitude, in this or
any other State or Federal court or pleading guilty or nolo
contendere to any such offense.
2 Section 17(b) of the Law, 63 P.S. § 479.17(b), provides:
(Footnote continued on next page...)

Hauad has been a licensed funeral director since 1989. Since then, his
license has been continually renewed by the Board and remains effective today.3
The criminal events underlying this appeal occurred between 1993 and 1996, when
Hauad, while working as a funeral director for the Pennsylvania Burial Company
in Philadelphia, used an apartment located in the funeral home as a storage facility
for marijuana. Hauad apparently stored between 700 and 1,000 kilograms of
marijuana in this apartment and received $5 for each pound of marijuana stored
there.

On April 26, 2000, Hauad pled guilty in federal court to one count of
conspiracy to distribute marijuana, one count of maintaining a marijuana storage
facility, and one count of money laundering.4 On August 8, 2000, he was sentenced
to nine months of work release and three years of supervised release,5 he was
ordered to pay an assessment of $300 and a fine of $750; and he was further
ordered to forfeit $35,000, consisting of $10,000 in cash and $25,000 in lieu of his
interest in his home.
_____________________________
(continued...)

In addition to any other civil remedy or criminal penalty
provided for in this act, the board . . . may levy a civil penalty of
up to one thousand dollars ($1,000) on any current licensee who
violates any provision of this act . . . . The board shall levy this
penalty only after affording the accused party the opportunity for a
hearing, as provided in Title 2 of the Pennsylvania Consolidated
Statutes (relating to administrative law and procedure).
3 By order dated July 9, 2004, Senior Judge Quigley of this court granted Hauad's
application for stay of the Board's order during the pendency of his appeal.
4 There is no question here that these crimes involve moral turpitude, i.e., "anything done
knowingly contrary to justice, honesty or good morals." Burnworth v. State Bd. of Vehicle Mfrs.,
Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991) (citation omitted).
5 Hauad has since completed these sentences and, apparently, has had no further trouble with
the law.
2

On May 14, 2002, a prosecuting attorney for the Commonwealth's
Department of State issued an order to show cause why the Board should not
discipline Hauad. At an administrative hearing held on April 3, 2003, Hauad
testified on his own behalf and also introduced into evidence, without objection by
the Commonwealth, thirty letters from family, friends, colleagues and clients
attesting to his good character and excellent work ethic. On January 28, 2004, the
hearing examiner for the Department of State issued a proposed decision and order
that Hauad's funeral director's license be suspended for two years and that Hauad
pay a civil penalty in the amount of $1,000. On January 30, 2004, the Board issued
a notice of its intent to review the record established before the hearing examiner,
including the hearing examiner's proposed sanction. On May 7, 2004, the Board
issued a final adjudication and order revoking Hauad's funeral director's license
and levying a $1,000 civil penalty upon him. Hauad thereafter filed a petition for
review with this court.6

On appeal, Hauad argues that the Board: (1) abused its discretion by
improperly refusing to give any weight to the unrebutted evidence of his
rehabilitation and remorse; (2) violated his right to due process of law under both
the federal and state constitutions because the revocation was based on his ex-
offender status rather than on his current fitness to be a funeral director; (3)
improperly imposed a second penalty (license revocation) in violation of the
double jeopardy clauses of both the federal and state constitutions; and (4) is

6 "An administrative agency's exercise of its discretion cannot be overturned by a reviewing
court in the absence of fraud, bad faith, or flagrant abuse of discretion." Nicoletti v. State Bd. of
Vehicle Mfrs., Dealers and Salespersons, 706 A.2d 891, 896 (Pa. Cmwlth. 1998).
3

estopped from revoking his license where it has twice renewed it despite
information he gave of his conviction and the circumstances underlying it.

With respect to Hauad's first argument, we disagree that the Board
committed reversible error when it decided not to accord any weight to evidence he
presented of his remorse and rehabilitation, including the many character reference
letters he submitted. While the law is clear that "[h]earsay evidence, admitted
without objection, will be given its natural probative effect and may support a
finding of the Board, if it is corroborated by any competent evidence in the
record," Walker v. Unemployment Compensation Board of Review, 367 A.2d 366,
370 (Pa. Cmwlth. 1976) (emphasis in original), the weight that an administrative
board accords "evidence offered to mitigate the severity of a penalty is a matter
within its discretion." Burnworth v. State Bd. of Vehicle Mfrs., Dealers and
Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991). Here, the Board considered
the character reference letters submitted on Hauad's behalf but chose to give them
no weight; it also chose not to give "mitigating weight" to other evidence of his
good behavior and was not sufficiently persuaded by Hauad's own testimony of his
remorse and rehabilitation.7 The Board did not abuse its discretion in determining
that the seriousness of Hauad's crimes outweighed the mitigating evidence,
especially where the Board specifically noted that, through these crimes, which
directly involved the funeral home in which he worked, Hauad "brought immense
discredit upon his chosen profession." Board's opinion (dated May 7, 2004) at 7.

7 The Board did not recount all of Hauad's testimony in this regard, including his statement
that he had made "a grave mistake" in committing the criminal conduct, Notes of Testimony,
Hearing (dated April 3, 2003) at 30, but this does not amount to an abuse of discretion.
4

Next, we consider Hauad's argument that the Board's revocation
order violates his due process rights because it is improperly based on his ex-
offender status, not on his current fitness as a funeral director. Hauad argues that
the unrebutted evidence proves he is currently fit to be a funeral director. He cites,
inter alia, Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d
358 (1973), to support his contention that he should not be deprived of his funeral
director's license on this record. In Secretary of Revenue, our Supreme Court
stated:

At the outset, it should be noted that every citizen
has an inalienable right to engage in lawful employment.
While a state may regulate a business which affects the
public health, safety and welfare, it may not, through
regulation, deprive an individual of his right to conduct a
lawful business unless it can be shown that such
deprivation is reasonably related to the state interest
sought to be protected.
Id. at 492, 309 A.2d at 361 (citations omitted).

Secretary of Revenue involved a corporation that had its wholesale
cigarette dealer's license revoked based on evidence that a shareholder and former
president of the company had committed certain crimes that were not recounted on
its license application. Because the crimes occurred nearly twenty years before,
however, the Supreme Court deemed "them of little value in predicting future
conduct of their perpetrator." Id. at 493, 309 A.2d at 361-62 (citation omitted). The
court also took into consideration that the shareholder had served as president of
the appellant corporation for twelve years without any hint of impropriety and,
therefore, his present character could not be judged by his past bad acts. The court
then explained:
Under facts such as those presented in this appeal, where
the prior convictions do not in any way reflect upon the
5

appellant's present ability to properly discharge the
responsibilities required by the position, we hold that the
convictions cannot provide a basis for the revocation of a
wholesaler's license.
Id. at 495, 309 A.2d at 362. Accordingly, the court overturned the revocation of the
corporation's wholesale cigarette dealer's license. Cf. Nixon v. Commonwealth,
576 Pa. 385, 839 A.2d 277 (2003).

Nonetheless, Hauad's circumstances more closely resemble the
circumstances presented in Foose v. State Board of Vehicle Mfrs., Dealers and
Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990). In that case, the licensee's
salesperson and vehicle dealership licenses were suspended due to Foose's
criminal drug activities unrelated to his work. This court stated:

The Supreme Court has held that past convictions
cannot provide a basis for a license revocation when the
prior convictions do not in any way reflect upon that
person's present ability to properly discharge the
responsibilities required by the position. Secretary of
Revenue, 453 Pa. 488, 309 A.2d 358 (1973). In that case,
the court found a rational basis between past derelictions
and a person's present ability to perform duties of a
position which requires integrity, honest, and strict
adherence to the law. Id. The rational basis exists only
where those events occurred so recently that the
particular character trait of the individual involved can be
reasonably assumed to have remained unchanged. The
Board here instituted action against Foose promptly
within two years of his convictions. It can be reasonably
assumed that the character trait which led Foose to
participate in the cocaine distribution ring has remained
unchanged.
Id. at 1358 (footnote omitted).

Similarly, here, the Board filed its order to show cause why Hauad
should not be disciplined within twenty-five months, or a little more than two
years, after he was convicted of his criminal activities. Therefore, it was reasonable
6

for the Board to assume that the character trait that led Hauad to participate in the
distribution and storage of marijuana has not yet changed. As the Board explained:
These very serious drug-trafficking offenses are not
remote in time. These convictions directly reflect upon
[Hauad's] character and judgment, important qualities for
a funeral director. Moreover, [Hauad] committed these
offenses at a funeral home where he was employed as a
funeral director. Because these convictions reflect upon
[his] present ability to discharge his responsibilities, they
provide a basis to take disciplinary action against [his]
license.
Board's opinion at 4.

Third, Hauad argues that the Board's revocation order violates the
double jeopardy clauses of the federal and state constitutions because it amounts to
a second penalty for the same offenses for which he received his criminal sentence.
He asserts that, while the federal court considered both the motion of the United
States Attorney and the mitigating evidence in dispensing a criminal sentence that
departed downward from the federal sentencing guidelines, "the Board's
revocation order is nothing more than its own brand of criminal justice for what it
deems to be the appropriate sentence to impose against Mr. Hauad." Hauad's brief
at 18. Further, Hauad contends that the record is devoid of evidence that the public
will be harmed if he is permitted to continue working as a funeral director. For the
reasons that follow, we reject these arguments.

Sections 11 and 17 of the Funeral Director Law permit the Board to
revoke Hauad's funeral director's license and to levy a fine of up to $1,000 against
him, respectively, as a result of his criminal conviction. The Board's penalties are
civil rather than criminal in nature. This court has stated: "As a general rule, the
protection against double jeopardy does not apply in civil proceedings, such as
7

those before administrative agencies, that result in civil penalties." Sweeny v. State
Bd. of Funeral Dirs., 666 A.2d 1137, 1139 (Pa. Cmwlth. 1995) (citation omitted).
Where, as here, the Board revokes a license because of a breach of the public trust
and in order to protect the public interest, this remedial civil penalty clearly does
not violate the prohibition against double jeopardy. See Sweeny.8 See also Nicoletti
v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 706 A.2d 891 (Pa.
Cmwlth. 1998).

Here, the Board specifically noted that it "is charged with
safeguarding the interests of the public and the standards of the profession. Section
16(a) of the Act, 63 P.S. § 479.16(a)." Board opinion at 6-7. It also specifically set
forth its conclusion "that the revocation of [Hauad's] funeral director license is
necessary to protect the public and to maintain the integrity of the profession." Id.
at 3-4. Consequently, the Board's actions were appropriately designed to protect
the public interest and to uphold the high standards of the funeral director
profession rather than to penalize Hauad.9

Last, Hauad argues that the Board is estopped from revoking his
license because it twice renewed it after being notified of all of the facts
surrounding his conviction.10 However, this court has repeatedly rejected this

8 Although Sweeny relied in part for its analysis on United States v. Halper, 490 U.S. 435
(1989), which has since been disavowed, see Hudson v. United States, 522 U.S. 93 (1997),
Sweeny remains good law in this Commonwealth. Although Hudson changed the analysis, it still
supports the result reached here.
9 That said, the Board is not required to "impose a lesser sanction because [Hauad] has
already received a criminal sentence from a state or federal court as a result of a criminal
conviction." Vogelman v. State Bd. of Funeral Dirs., 550 A.2d 1367, 1371 (Pa. Cmwlth. 1988).
10 The Board renewed Hauad's license from February 2002 to February 2004, and, again,
from February 2004 to February 2006. Presumably, the Board was not apprised of Hauad's
conviction until he filled out the license renewal paperwork in December 2001.
8

argument. Gangewere v. Pennsylvania State Architects Licensure Bd., 512 A.2d
1301 (Pa. Cmwlth. 1986). See also Quinn v. Dep't of State, Bureau of Prof. and
Occupational Affairs, 650 A.2d 1182 (Pa. Cmwlth. 1994). As we noted in
Gangewere:
the purpose of periodic renewals of professional or
occupational licenses is to raise revenues and to provide a
current list of those people authorized to practice the
profession or occupation within the Commonwealth; the
renewal requirement neither serves as a statute of
limitations nor requires the licensing agency to make a
periodic determination of the licensee's qualifications.
. . . Because the renewal requirement is neither a statute
of limitations nor a determination of a licensee's
continued qualification to practice the profession or
occupation upon which the licensee may rely, the
renewal does not estop the Board from later instituting
proceedings to suspend or revoke [a] license.

Id. at 1306 (citations omitted). Consequently, the Board was not here estopped11
from revoking Hauad's funeral director's license simply because it renewed that
license after his conviction but before his unfitness to hold the license had been
finally determined. In fact, by allowing his license to remain in effect until the
hearing and appeal process resulted in the instant adjudication, the Board merely
afforded Hauad the process that he was due.12

11 We also note that Hauad presented no evidence that he relied to his detriment on the
renewals.
12 Our Supreme Court
has recognized as well established the principle that "due process
is fully applicable to adjudicative hearings involving substantial
property rights . . . ." Soja v. Pennsylvania State Police, 500 Pa.
188, 455 A.2d 613, 615 (1982). Such property rights perforce
include the right of an individual to pursue a livelihood or
profession, thus triggering the protective mechanism of procedural
(Footnote continued on next page...)
9

Accordingly, the order of the Board is affirmed.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge
_____________________________
(continued...)
due process. See, e.g., Roche v. State Bd. of Funeral Directors, 63
Pa. Cmwlth. 128, 437 A.2d 797 (1981). Although constitutional
due process protects an individual's freedom to engage in any
legitimate employment or business activity, it has been widely
recognized that the state may, in the exercise of its police power,
sanction a licensee if the general welfare demands that the public
be protected against ignorance, incompetence, or fraud. Adler v.
Montefiore Hosp. Assoc., 453 Pa. 60, 311 A.2d 634, 640-41
(1973). Express provision is made for sanctioning the licensee by
means of legislation specifying certain contingencies as cause for
disciplinary action. Finally, and most importantly, the licensee is
provided with notice and the opportunity to be heard.
Khan v. State Bd. of Auctioneer Exam'rs, 577 Pa. 166, 181-82, 842 A.2d 936, 945 (2004) (three
cases).
10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marc Anthony Hauad,
:

Petitioner

:

:

v.

: No. 1180 C.D. 2004

:
State Board of Funeral Directors,
:

Respondent

:

O R D E R

AND NOW, this 18th day of March, 2005, the order of the State
Board of Funeral Directors in the above-captioned matter is hereby AFFIRMED.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge