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Rejecting bias claim, court restores revocation of licensee with 120 violations

By November 2, 2014April 1st, 2015Funeral Services

Citing a collection of errors by a trial court that had thrown out a license revocation for bias on the part of the Missouri funeral board, an appellate court reinstated the revocation imposed on a funeral director.

In the November 5 decision, the court noted that the funeral director had amassed 120 professional violations (Buescher Memorial Home v. Missouri State Board of Embalmers and Funeral Directors).

In 2008, the Missouri Board of Embalmers and Funeral Directors filed a complaint against Barbara Buescher, who ran a funeral home in Jefferson City and held both a funeral director and an embalmer license. She was accused of several violations of the professional code, including incompetence, the misuse of money, and violations of professional trust.

When Buescher failed to respond to the complaints or any notices from the state’s Administrative Hearing Commission, she defaulted on the claims and the Commission entered a judgment finding that Buescher had committed 120 professional violations.

Buescher then failed to respond to motions during the discipline phase of her hearing; as a result, the board revoked her license.

At this point, Buescher seems to finally have taken notice of the situation and filed a request for review of the decision with a state court. That court issued a ruling in her favor, finding that two of the board members, who had also served as complaining witnesses and who had engaged in or inquired into business dealings with Buescher—had been biased. The court put a hold on the revocation and remanded the case to the board to reconsider the discipline it would impose on Buescher.

The board appealed, and the case went to a state Court of Appeals in Kansas City, which issued a decision written by Judge Mark Pfeiffer.

The appellate court did not agree with the lower court’s assessment of bias on the part of the board members. One of the two members, Pfeiffer noted, had recused himself from the decision and the other had only inquired about business with Beuscher four months after her discipline hearing.

“This is the extent of the supposed ‘clear and convincing’ evidence that the ‘administrative body was improperly influenced’ by actual bias or the probability of bias when it revoked Licensee’s license in the face of over 120 admitted violations in the categories of incompetence, gross negligence, violations of professional trust and confidence, monetary misconduct, and utter disregard and refusal to cooperate in the investigative process.”

No evidence existed, Pfeiffer wrote, to show “that the board had ever extended any discipline less than the discipline it imposed in the face of over 120 violations of the sort Licensees admitted to” and no evidence that the board members had acted on biases.

“Instead, the design of Licensees’ evidence was to establish the appearance of impropriety with speculative innuendo and to shift the burden of proof to the Board to  disprove bias as opposed to Licensees’ obligation to prove bias by clear and convincing evidence.”

The lower court had erred, he stated, in abusing its discretion by presuming that the board’s decision was invalid and by using a standard for evidence of bias that was less than “clear and convincing.”

“The collection of errors made by the circuit court constitute[d] an abuse of discretion,” Pfeiffer concluded. Its judgment was overturned and the revocation reinstated.

© 2013 Professional Licensing Report, published by ProForum, a non-profit research group, Reprinted by permission.

If you are in need of legal help from a California attorney involving your funeral establishment, crematory, cemetery or embalmer professional license or business, call Rose Law today at 1-800-456-3767.

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