STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-236

)

WILLIAM E. WOODS and WOODS )

FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tampa, Florida, on April 9, 1981, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Andrew D. Argintar, Esquire

Suite 100, The Legal Center 725 East Kennedy Boulevard Tampa, Florida 33602

ISSUE PRESENTED

Whether Respondent's licenses as funeral director, embalmer, and funeral establishment should be suspended or revoked, or the licensees otherwise disciplined for alleged violations of Chapter 470, F.S., as set forth in the Administrative Complaint dated December 17, 1980.

This case involves six counts against Respondent of which five allege that he failed to file death certificates within three days after the death of various decedents, as required by Section 382.081, Florida Statutes. The other count alleges that Respondent did not have sanitary floors in the preparation room and that the preparation room was not maintained in a clean and sanitary condition in violation of Petitioner's Rules 21J-21.03(1)(c) and (h) , Florida Administrative Code. Subsequent to filing of the Administrative Complaint, Respondents requested an administrative hearing on the charges.

At the hearing, petitioner presented the testimony of two witnesses, Leo Huddleston and Richard Carroll, and submitted six exhibits in evidence.

Respondent William E. Woods testified In his own behalf. In view of the fact

that Respondents objected to the admission of certain death certificates marked as Petitioner's Exhibits 2 through 6 for lack of proper authentication, Petitioner was provided a period of ten days subsequent to the hearing to file certified copies of the death certificates. Such copies were filed on April 14, 1981, and have been marked Hearing Officer's Composite Exhibit 1.

FINDINGS OF FACT

1. Respondent William E. Woods is a licensed funeral director who operates William E. Woods Funeral Home, a licensed funeral establishment, located at 212 North Parsons Avenue, Brandon, Florida. Respondents have been so licensed at all times material to the matters involved in this proceeding. (Testimony of Woods, Carroll)

   
   

2. On November 20, 1980, Petitioner's investigators Richard Carroll and Leo Huddleston conducted an inspection of Respondent's funeral home. During the course of their inspection, the Investigators observed about 24 or 25 dead human bodies in varying states of decay in the preparation room and in an adjoining room previously used for display of caskets. In the "casket" room, bodies were located on cots, and on wooden boards on the carpeted floor. The bodies were covered by sheets or canvas, and body fluids were seen seeping from the bodies onto the floor. Flying and crawling insects were visible in the vicinity of the remains and one of the investigators was bitten by fleas while conducting the inspection. Maggots were seen on the covering sheets and a strong odor was present in the room.

   
   

3. In the preparation room, the investigators saw one corpse on the preparation table with no covering other than a bandage. Three dead bodies were located on a six-shelf wooden rack, and one on a board platform. As in the other room, body fluids were observed dripping onto the asphalt tile floor.

   Some of the fluids were dried and caked. A great number of insects, including house flies, gnats, and beetles were in the room, and insect droppings had accumulated around the walls.

   
   

4. Upon inquiry by the investigators at the time of the inspection, Respondent Woods stated that he had had family medical problems which had exhausted his cash and credit resources to the extent that he had been unable to make advance payments for the disposition of indigent decedents. (Testimony of Huddleston, Carroll, Petitioner's Exhibit 1 a-f)

   
   

5. On December 4, 1981, the investigators returned to Respondents funeral home, accompanied by a representative of the Hillsborough County Health Department. Although the conditions previously noted had been substantially corrected in the preparation room, bodies were still present in the "casket" room and the odor was still prevalent. As a result of this visit, a citation was issued to Respondent by the County Health Department for the unacceptable condition of the bodies and premises.

   
   

6. In early April 1981, Investigator Carroll went to Respondent's funeral home and found that further improvements had been made in the condition of the preparation room. It had been cleaned, renovated, and new equipment, including a refrigeration system, had been installed. No insects wore found on the premises and the dead bodies had been removed from the "casket" room. However, the odor still pervaded that area. (Testimony of Huddleston, Carroll)

7. During the month of September 1980, Respondent Woods received for disposition the bodies of Yadwigo Dudko, Johnny Gardiner, Willie Washington, Henry Spielkamp and James Lowe. Dudko died on September 6, 1980. Medical certification of cause of death was entered on the death certificate on September 15, 1980, and the death certificate was filed with the local registrar of vital statistics by Respondent on September 30, 1980.

   
   

8. Johnny Gardiner died on September 10, 1980, medical certification of cause of death was entered on the death certificate on September 15, 1980, and the death certificate was filed by Respondent with the local registrar on September 30, 1980.

   
   

9. Willie Washington died on September 15, 1980, medical certification of cause of death was entered on the death certificate on October 6, 1980, and the death certificate was filed by Respondent with the local registrar on October 7, 1980.

   
   

10. Henry Spielkamp died on September 27, 1980, medical certification of death was entered on the death certificate on October 10, 1980, and the death certificate was filed by Respondent with the local registrar on October 14, 1980.

    
    

11. James Lowe died on September 24, 1980, medical certification of cause of death was entered on the death certificate on October 6, 1980, and the death certificate was filed by Respondent with the local registrar on October 7, 1980. (Hearing Officer's Composite Exhibit 1)

    
    

12. Respondent Woods testified at the hearing and admitted that his funeral establishment had been in an unsatisfactory sanitary condition at the time of the November 1980 inspection. Although he had embalmed all of the bodies that were seen at that time by Petitioner's investigators, they had been received by him at various times after death and some received from the county medical examiner had been dead for a lengthy period of time and were, in fact, "unembalmable." Respondent has a contract with the County to process the remains of indigent or unclaimed decedents and, during 1980, he received about

    150 of these cases. He charges the County $350 for burial, but has to advance payment for cemetery lots and other services prior to invoicing the County. There is then a 45 to 60 day period until he is reimbursed for his expenditures.

    
    

13. During 1980, Respondent's wife was hospitalized at various times incident to extensive spinal surgery. Respondent was obliged to hire private nurses for her care and the total medical expenses of some $22,000 took all of his available financial resources. It was for this reason that he was unable to advance the necessary monies to dispose of all the bodies received at his place of business. As a result, the bodies seen by Petitioner's investigators in November 1980 had been present in the funeral home for varying periods as far back as January 1980. Due to his financial straits, Respondent was unable to employ more than one assistant and, as a consequence, the condition of the funeral establishment deteriorated.

    
    

14. Respondent has renovated the preparation room and added refrigerated facilities to the body storage area. Everything in the room except the ceiling is now of a non-porous nature. The carpeting in the "casket" room is in the process of replacement. That room had formerly been the casket display room for the funeral home, but had temporarily been utilized as a storage area for bodies during the past year.

15. Respondent testified that he was unaware of the extent to which insects had invaded the two rooms in question, but that he lived on the upper floor of the funeral home and had monthly professional exterminators service all areas except those where bodies were located. In such areas, Petitioner and his employee performed spraying on a regular basis. The excessive number of beetles that he discovered when removing the bodies after Petitioner's inspection were due to their prior existence in lumber which had been used to build a body storage facility several years ago, according to what he had been told by a state entomologist. The beetles have now been eradicated from the premises.

    
    

16. As to the delayed death certificates, Respondent claimed that this problem occurred as the result of difficulties of obtaining certifications of cause of death from the various physicians. In the case involving James Lowe, Respondent stated that the Tampa General Hospital had held the body for over three days and should have filed the death certificate itself. Although Respondent was aware of the fact that Rule 10D-49.26, F.A.C., required funeral directors to file temporary death certificates when unable to obtain either the attending physician's medical certification of cause of death or the personal information about the deceased within the prescribed statutory time period plus a five-day extension of time, he testified that he had attempted to file such a certificate once with the local health department, but its personnel had refused to accept anything except a completed death certificate and that the Department continued to follow that practice. (Testimony of Woods)

    
    

    CONCLUSIONS OF LAW

    
    

17. Section 470.036, Florida Statutes, provides pertinently as follows:

    
    

    470.036 Disciplinary proceedings.--

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       (e) ... negligently failing to file a report or record required by state, local, or federal law. Such reports or records shall include only those which are signed in the capacity

       of a licensed funeral director or embalmer.

       (h) A violation or repeated violation of this chapter or chapter 455 and any rules promulgated pursuant thereto.

       (o) Violation of any state law or rule

       or municipal or county ordinance or regulation affecting the handling, custody, care or trans- portation of dead bodies.

       
       

18. Petitioner alleges that Respondents have violated Rule 21J-21.03(c) and (h), Florida Administrative Code, in that they did not have a sanitary floor in the preparation room and the preparation room was not maintained in a clean and sanitary condition, which in turn constitutes a violation of subsections 470.036(1)(f), (h) and (o), Florida Statutes. At the commencement of the hearing, upon inquiry by the Hearing Officer, Petitioner's counsel acknowledged that the allegation of violation of subsection 470.036(1)(f) was incorrect and dealt with false advertising which was not in issue in this proceeding. Petitioner's request to amend its complaint to allege a violation of Section 470.036(1)(g) dealing with negligence, incompetency, or misconduct in the practice of funeral directing or embalming was denied upon the objection of

    Respondent that he had not been put on notice as to that disciplinary ground nor was he prepared to defend against it.

19. Rule 21J-21.03, F.A.C. provides in part as follows: 21J-21.03 Inspection Criteria.

    The department shall inspect funeral establishments on the basis of the following:

    1. There shall be either a refrigeration room for the storage of human bodies or a preparation room equipped as follows:

       (c) Sanitary floors with non-porous surface;

       (h) Room shall be maintained in clean and sanitary condition.

       
       

       Respondent conceded at the hearing that his establishment had been in an unsanitary condition on occasion of the November 20, 1980, inspection by Petitioner's investigators. The evidence shows that Respondents were in violation of the requirement of Rule 21J-21.03(1)(h) that the preparation room should be maintained in a clean and sanitary condition. Violation of the rule in turn triggers the application of Section 470.036(1)(h) as a violation of rules promulgated pursuant to Chapter 470.036. However, no showing was made of a violation of Rule 21J-21.03(1)(c) requiring the preparation room to be equipped with "sanitary floors with non-porous surface." The rule speaks to the type rather than condition of the floor. The preparation %room in Respondent's establishment was equipped with the type of floor required by the rule.

       Although the "casket room" was carpeted, it was not used as an area for the preparation of bodies and, therefore, a non-porous floor surface was not required.

       
       

20. As to the allegations of untimely filing of death certificates, Respondent claimed that the onus should be on the physicians concerned who unduly delayed certifying the cause of death, thus preventing Respondent from filing within the three-day period prescribed by statute. Section 382.081, F.S., provides in pertinent detail as follows:

    
    

    1. Death registration.--

       1. A death certificate for each death which occurs in the state shall be filed with the local registrar of the district in which the death occurred within 3 days after such death and prior to final disposition or removal of

          the body from the state, and shall be registered by such registrar if it has been completed and filed in accordance with this section....

       2. A funeral director or person acting as such who first assumes custody of a dead body shall file the death certificate. He shall shall obtain the personal data from the next of

          kin or the best qualified person or source available.

          The medical certification of cause of death shall be furnished to the funeral director, either in person or via certified mail, by the physician, medical examiner, or coroner responsible for furnishing such information.

       3. The medical certification shall be completed, signed, and made available

    within 48 hours after death by the physician in charge of the patient's care for the illness or condition which resulted in death, or the physician last in attendance upon the deceased, who shall certify over his signature the cause of death to his best knowledge and belief, except when inquiry is required by

    the medical examiner or coroner.

    
    

    Section 382.091, F.S., provides that the Department of Health and Rehabilitative Services may by regulation provide for extension of the periods for filing death certificates in cases in which compliance with the applicable prescribed period would result in undue hardship. Rule 10D-49.26 provides that if the attending physician or medical examiner is unable to complete the certification of cause of death or if the funeral director is unable to obtain the personal information about the deceased within the prescribed statutory time period plus a five day extension of time, the funeral director shall file a temporary death certificate completed with all available information, accompanied by a written statement giving the reason why the certificate is incomplete and specifying the efforts which have been made to obtain a completed certificate.

    
    

21. From the foregoing, it is clear that when a funeral director assumes custody of a dead body, he must file the death certificate within the required three days, or take advantage of the extension granted under Section 382.091 and the HRS rule in order to comply with pertinent law. Although a physician may also have violated the statute in failing to complete the certification of cause of death within 48 hours, such fact does not absolve the funeral director from the requirement imposed upon him by law. The evidence shows that in the five cases which were the subject of allegations in the Administrative Complaint, Respondent Woods failed to file the death certificates within the three-day period, and, by his own admission, did not file temporary death certificates with the local registrar. His contention that the local registrar would not accept temporary death certificates is not deemed credible and was unsupported by competent evidence of such a practice on the part of the County Health Department. In like manner, Respondent's claim that it was the responsibility of the hospital where James Lowe died to file his death certificate is deemed to be without merit. No evidence was presented that the hospital in question was operating as a funeral director or was otherwise responsible for the filing of the death certificate.

    
    

22. In view of the foregoing, it is concluded that grounds for disciplinary action against Respondents exist under Section 470.036(1)(e) for negligently failing to file reports in accordance with state law, to wit, Section 382.081, F.S.

    
    

23. In assessing an appropriate penalty, it should be noted that no evidence was presented concerning prior disciplinary action taken against Respondents, and also the mitigating circumstances concerning the illness of Respondent Wood's wife and his consequent financial straits. Under the circumstances, it is considered that suspension of Respondent's licenses for a period of six months is warranted, but that in view of the mitigating circumstances and the technical nature of the violations concerning late filing of death certificates, the suspension should not be effected, but the licensee should be placed on probation for a like period of time, subject to such appropriate conditions as Petitioner may specify to ensure that the funeral home is operated in a proper manner in the future.

RECOMMENDATION

That the licenses of Respondents William E. Woods and William E. Woods Funeral Home be suspended for a period of six months, but that the suspension be held in abeyance and the licensees be placed on probation for a like period of time, subject to appropriate conditions established by petitioner.

DONE and ENTERED this 26th day of April, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Andrew D. Argintar, Esquire Suite 100, The Legal Center 725 East Kennedy Boulevard Tampa, Florida 33602

1. A. Hartley, Executive Director Board of Funeral Directors and

   Embalmers

   Room 507, 111 East Coastline Drive

   Jacksonville, Florida 32202

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   BOARD OF FUNERAL DIRECTORS AND EMBALMERS

   DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF FUNERAL DIRECTORS AND EMBALMERS,

   
   

   Petitioner,

   
   

   vs. CASE NO. 81-236

   
   

   WILLIAM E. WOODS and WOODS FUNERAL HOME,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This matter came on to be heard by the Board of Directors and Embalmers on July 27, 1981, in Tampa, Florida. A hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Upon consideration of the Recommended Order and the complete record of the proceeding,

   
   

   IT IS ORDERED:

   
   

   1. The findings of fact set forth in the Recommended Order are hereby approved and adopted and incorporated by reference. The Board, however, adopts Petitioner's Exception number 1 to the Recommended Order and adopts an additional finding of fact that the Respondent is currently a licensed embalmer as well as a licensed funeral director. The Board finds competent substantial evidence inn the record in the form of the testimony of the Respondent William

      E. Woods to support this finding.

      
      

   2. The conclusions of law set forth in the Recommended Order are hereby approved and adopted and incorporated by reference with the following modifications.

1. The Board adopts Petitioner's Exception number 2 to the Recommended Order and thereby rejects the Hearing Officer's conclusion of law set forth in page 8 of the Recommended Order stating that the non-porous surface of the floor in the preparation room was all that was required under Rule 21J-21.03(1)(c) Florida Administrative Code. The Board finds and concludes that Rule 21J- 21.03(1)(c) requires that said floor must also be sanitary. Therefore, in light of the Respondent's admission that the floor was unsanitary, as set forth in the record, the Board finds that there was a violation of Rule 21J-21.03(1)(c), Florida Administrative Code.

   
   

2. The Board also rejects the hearing officer's statement set forth in paragraph 5 of the Recommended Order. These statements are not conclusions of law but may be more appropriately deemed recommendations to be considered in the assessment of a penalty.

In consideration of the foregoing findings of fact and conclusions of law, and based upon a review of the complete record, the Board hereby rejects the recommendation of the Hearing Officer.

THEREFORE

IT IS ORDERED and ADJUDGED that the funeral director and embalmer license's of Respondent William E. Woods, and the establishment license of Respondent William E. Woods Funeral Home be and are hereby suspended for a period of six

(6) months, after which the licenses of William E. Woods and William E. Woods Funeral Home shall be placed on probation for a period of three (3) years, during which time Respondent William E. Woods shall be required to submit quarterly reports to the probable cause panel of the Board.

IT IS FURTHER ORDERED that the Respondent pay an administrative fine in the amount of $2,000 in total.

DONE and ORDERED this 10th day of August, 1981.

Board of Funeral Directors and Embalmers

GEORGE E. FEASTER

Vice Chairman

William E. Woods

Willian E. Woods Funeral Home

P.O. Box 1620

Brandon, Florida 33511

cc: William E. Woods

William E. Woods Funeral Home Andrew D. Argintar

Joseph W. Lawrence, II Patricia Gleason Drucilla Bell

Thomas C. Oldham (10/26/81)

Docket for Case No: 81-000236

Orders for Case No: 81-000236