STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: The revocation or ) suspension of the license of JOE )

1. JOHNSON, licensed funeral )

   director and embalmer, Palmetto, ) CASE NO. 76-027 Florida, JOHNSON'S FUNERAL HOME, )

   Palmetto, Florida; JOE A. JOHNSON ) licensed funeral director in ) charge and owner and operator of ) JOHNSON'S FUNERAL HOME )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on March 8, 1976 at Clearwater, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: G. Kenneth Norrie, Esquire

   1300 Florida Title Building Jacksonville, Florida 32202

   
   

   For Respondent: Joe A. Johnson

   1320 26th Street Court East Palmetto, Florida

   
   

   By Administrative Complaint filed December 23, 1975, the Florida State Board of Funeral Directors and Embalmers seeks to revoke or suspend the license of Joe A. Johnson. The Complaint contains eight counts alleging:

   
   

   1. That Respondent, Joe A. Johnson, violated Chapter 470.12(1)(h) Florida Statutes in that he paid, or caused to be paid, money or other valuable considerations to Rudolph Gilliam. Specifically Johnson was charged with employing Gilliam to solicit business from Pearlene Dillard without having been contacted, requested, or invited to call upon her to utilize the services of Johnson's Funeral Home. A similar allegation was made with respect to attempting to obtain the business of Fannie Mae Goodman.

      
      

   2. Count Two alleged that Respondent violated Chapter 470.10(6) Florida Statutes by allowing one Rudolph Gilliam to perform the functions of a funeral director without being licensed to do so.

      
      

   3. Count Three alleged that Respondent violated Chapter 470.12(2)(n) Florida Statutes in willfully interfering with a licensed funeral director, to wit: Stevens Funeral Home by persuading or attempting to persuade the families of deceased persons to utilize the services of Respondent rather than Stevens Funeral Home which the families had previously engaged.

   4. Count Four alleged Respondent violated Chapter 470.12(2)(j), Florida Statutes in knowingly engaging in misleading advertising by publishing an advertisement which named and pictured unlicensed persons.

      
      

   5. Count Five alleged Respondent violated Chapter 470.12(1)(k) and 470.12(2)(p), Florida Statutes in violating the provisions of Chapter 470 as described in Counts 1 - 4 above.

      
      

   6. Count Six alleged that Respondent violated Chapter 470.12(4)(c) Florida Statutes allowing Rudolph Gilliam, a person not licensed as a funeral director to perform functions coming within the definition of funeral directors.

      
      

   7. Count Seven alleged the violation of Chapter 470.10(6) Florida Statutes in utilizing the names and pictures of unlicensed persons in connection with advertisement.

      
      

   8. Count Eight alleged that Respondent violated Chapter 470.12(4)(a) Florida Statutes by Joe A. Johnson and Rudolph Gilliam acting as agents for Johnson's Funeral Home by committing acts which provide grounds for revocation of an embalmer's license.

Johnson acknowledged publishing an advertisement in a paper which contained a picture of Rudolph Gilliam who was not a licensed embalmer or funeral director.

Three witnesses testified for the Board and two witnesses testified on behalf of the Respondent.

FINDINGS OF FACT

1. In September, 1975 two sons of Mrs. Pearlene Dillard were drowned. At the hospital Mrs. Dillard selected Stevens Funeral Home to provide the burial services. Later that evening she was visited by Rudolph Gilliam who was a friend of one of her sons. Mr. Gilliam had been phoned by a roommate of one of these sons who was very upset and requested he go to Mrs. Dillard's home to assist in the funeral arrangements. At the time Mr. Gilliam was not an employee of Johnson's Funeral Home, but he had on occasion worked at the funeral home as an assistant at funerals. Gilliam is self-employed and owns a restaurant. When Gilliam talked to Mrs. Dillard and learned that she had already engaged the services of another funeral director he did not pursue the matter. However, Mrs. Dillard asked him to take her to Johnson's Funeral Home which he did on the evening of September 18, 1975. He also took her brother, a daughter, and a niece. Upon arrival at Johnson's Funeral Home Gilliam introduced Mrs. Dillard to Joe Johnson and departed the room. Johnson showed Mrs. Dillard caskets and explained to her some of the provisions relating to funeral arrangements. Thereupon Mrs. Dillard decided that she preferred to use Johnson's Funeral Home. She thereafter went to the hospital and signed a second consent to have the bodies committed to Johnson's Funeral Home.

   
   

2. Under oath Mrs. Dillard denied that Gilliam had told her that Johnson could provide a cheaper funeral as she alleged in an affidavit that was admitted into evidence as Exhibit 2. She further indicated that she had made up her mind independent of anything that Gilliam had said and that she was happy with the arrangements that she had procured from Johnson's Funeral Home. She acknowledged that she had changed her mind before the bodies had ever been released by the hospital to Stevens Funeral Home and considered that she had the right to do so.

3. Subsequent to this incident, Jerome Stevens, the licensed Funeral Director of Stevens Funeral Home, filed a complaint that led to these charges. His affidavit was admitted into evidence without objection as Exhibit 1.

   
   

4. Exhibit 3, the Affidavit of Fannie Mae Goodman was admitted into evidence without objection. Therein Mrs. Goodman stated that Rudolph Gilliam came to her house three times trying to get her to take the body from Stevens Funeral Home and give it to Johnson's Funeral Home which she declined to do.

   
   

5. Rudolph Gilliam testified on behalf of Respondent. He does not know Fannie Mae Goodman and denied any attempt on his part to request her to change from Stevens Funeral Home to Johnsons'. He was a classmate of Mrs. Goodman's daughter, and went to the house after learning of her father's death. He did talk to Mrs. Goodman's daughter but he did not talk to Mrs. Goodman.

   
   

6. On September 19, 1975 Stevens went to Mrs. Dillard's home to inquire why she had changed the funeral services to Johnson. She told him that she had changed her mind and was going to use Johnson's for the burial services. Mrs. Dillard made no deals with Gilliam and did not discuss any funeral arrangements with him. The discussions pertaining to funeral arrangements were made between her, her brother, and Johnson.

   
   

7. Joe Johnson testified in his own behalf. He handled the funeral arrangements for Mrs. Dillard, and Mrs. Dillard did come to his funeral home on the evening of September 18, 1975 in company with Gilliam. He stated that Gilliam was not working for him, that Gilliam did occasionally work for him as an assistant during funerals. At the funeral services for Mrs. Dillard's sons Gilliam acted as an attendant and drove a family car. For these services Gilliam was paid $10.00 for the use of Gilliam's car and $10.00 for his services as an attendant. Johnson at no time paid any commission to Gilliam or offered to pay any commission to Gilliam. Prior to the arrival of Mrs. Dillard Johnson was not in contact with Gilliam and Gilliam was not working for him. Johnson has not had enough business for the past several months to warrant the employment of any assistants other than himself and his father, who is also a licensed funeral director and embalmer. Johnson acknowledged that he placed the advertisement in the newspaper that is contained in Exhibit 4.

   
   

   CONCLUSIONS OF LAW

   
   

8. The only evidence to support any allegation of wrongdoing with respect to the Goodman funeral is contained in the affidavit admitted into evidence without objection as Exhibit 3. This is hearsay. As such it is not, standing alone, sufficient to sustain a finding of guilty of the offenses therein alleged. Furthermore, the Respondent and Gilliam both testified that they did not know Fannie Mae Goodman and that neither had contacted her at any time with respect to any funeral arrangements.

   
   

9. The evidence is uncontradicted that at the time Gilliam visited the home of Pearlene Dillard he was not an employee of Respondent. There was no evidence that Gilliam persuaded Mrs. Dillard to change her mind or that he in any manner touted the services of Johnson's Funeral Home.

   
   

10. The only evidence that was submitted with respect to the allegations pertaining to the advertisement was a page from the Weekly Bulletin dated Friday, January 31, 1975, which was admitted into evidence without objection as Exhibit 4. This was not authenticated as being an advertisement published in

    the newspaper and would also constitute hearsay. However, Johnson freely admitted that he did place this ad in the paper.

    
    

11. From the foregoing it is concluded that Joe A. Johnson and Johnson's Funeral Home are not guilty of the violations of the various provisions of the Florida Statutes as alleged with the exception of the improper advertisement.

    
    

12. It is to be noted that Johnson cooperated fully at the hearing and was not represented by an attorney. He indicated that he could not afford an attorney as his business did not provide sufficient funds to do so.

It is therefore,

RECOMMENDED that Johnson's license as a funeral director and embalmer be suspended for a period of sixty (60) days.

DONE and ENTERED this 31st day of March, 1976, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 76-000027

Orders for Case No: 76-000027