STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2180
) DALE WOODWARD and DALE WOODWARD ) FUNERAL HOME, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came before the undersigned upon a motion to dismiss being filed by Respondents, Dale Woodward and Dale Woodward Funeral Home, wherein they seek the dismissal of an amended administrative complaint filed by Petitioner, Department of Professional Regulation, Board of Funeral Directors and Embalmers. Oral argument on the motion was heard by the undersigned on Monday, April 26, 1982, in Tallahassee, Florida. This order deals only with Count I of the first amended administrative complaint.
FINDINGS OF FACT
From the pleadings filed herein, and argument of counsel, the following facts are determined. Petitioner filed its initial administrative complaint on August 11, 1981, alleging generally that in conjunction with the arrangement of an out-of-state funeral (1) Respondents were guilty of fraud, deceit, negligence, incompetency or misconduct in the conduct of their business of funeral directing, and (2) Respondents were guilty of misrepresentation and fraud in the conduct of their profession.
Still pending are Count II, Count III (which has been dismissed this date by separate order for failure to state a cause of action without prejudice to Petitioner refiling a proper charge), and Counts IV and V (which are sought to be added to this proceeding through Petitioner's second amended administrative complaint). Petitioner accordingly sought to take disciplinary action against Respondents' licenses as funeral director, embalmer and funeral establishment. Upon a motion to dismiss being filed by Respondents, the complaint was dismissed for failure to state a cause of action. Thereafter, Petitioner filed its first amended administrative complaint on October 1, 1981, charging, inter alia, that Respondents were guilty of negligence or misconduct in the practice of funeral directing within the meaning of Subsection 470.036(1)(g), Florida Statutes. These charges again stemmed from a funeral
purchase agreement entered into by Respondents on or about June 24, 1980, which required Respondents to pay from the proceeds of a funeral arranged by them a
$1,250 payment to a Nebraska funeral establishment to handle the actual burial of the deceased. This payment was not made to the other funeral establishment until on or around February, 1981. Respondents thereafter filed a motion to dismiss Count I of the complaint on October 21, 1981, contending, inter alia, that Petitioner failed to state a cause of action under the facts alleged.
CONCLUSIONS OF LAW
Respondents are charged in Count I with "negligence" or misconduct" in the practice of funeral directing within the meaning of Subsection 470.036(1)(g), Florida Statutes. That subsection provides in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection
may be taken:
(g) ... negligence or misconduct, in the practice of funeral directing or embalming.
The practice of funeral directing is defined in Subsection 470.002(4), Florida Statutes, as follows:
... making, at need or preneed, arrangements for, or directing the arrangements for, the preparation and transportation of dead human bodies for final disposition;...
The pleadings filed herein indicate that Petitioner construes the "lack of timely payment" and the "failure to acknowledge and resolve a debt within a reasonable period of time" to constitute a violation of Subsection 470.036(1)(g), if true. But the misdeeds of Respondents must occur in conjunction with the making or directing arrangements for a dead human body in order to be violative of the law. Subsection 470.002(4), supra. None have been alleged or shown. While Petitioner urges that the late payment relates back to the funeral agreement itself, and therefore involves the making or directing arrangements within the meaning of the law, such argument is deemed to be unavailing. By its own pleadings, Petitioner concedes that the so-called illicit conduct could not have occurred until at least a reasonable time after all arrangements by Respondents had been completed. It must follow that the failure to promptly pay a bill arising out of those arrangements has no relationship, either directly or indirectly, with the practice of funeral directing as contemplated by the law, and if indeed a cause of action lies, it must fall within the purview of another statute. That is to say, if a licensee commits negligence or misconduct while engaged in the practice of funeral directing, such conduct must necessarily occur while actually "... making ... arrangements for, or directing, the arrangements for, the preparation and transportation of dead human bodies for final disposition..." (s. 470.002(4), F.S.), and not when an unrelated act occurs several months later. Such a narrow construction of the law is consistent with the well established principle that penal statutes must be strictly construed in favor of the accused. Bach v.
Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Therefore, even if the factual allegations are true, they are insufficient to establish a violation of Subsection 470.036(1)(g). Inasmuch as this constitutes the second unsuccessful attempt by Petitioner to perfect the charges, and it appearing that no actionable cause under the applicable principles of law can be pled, Count I of the complaint should be dismissed with prejudice.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents' motion to dismiss Count I of the First
Amended Administrative Complaint with prejudice be and it is hereby GRANTED, DONE and ENTERED this 28th day of April, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
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 28th day of April, 1982.
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Wilson W. Wright, Esquire
217 South Adams Street Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2180
) DALE WOODWARD and DALE WOODWARD ) FUNERAL HOME, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, in the above case on June 1, 1982, in Daytona Beach, Florida.
APPEARANCES
For Petitioner: Joseph W. Lawrence II, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondents: Wilson W. Wright, Esquire
217 South Adams Street Tallahassee, Florida 32303
and
Nicholas A. Caputo, Esquire
233 Second Street
Holly Hill, Florida 32017 BACKGROUND
By Administrative Complaint dated August 11, 1981, the Petitioner, Department of Professional Regulation, Board of Funeral Directors and Embalmers, charged that Respondents, Dale Woodward and Dale Woodward Funeral Home, had violated Subsections 470.036(1)(g) and (k) , Florida Statutes, for which disciplinary action against their funeral director and embalmer and funeral establishment licenses should be taken. Thereafter, on September 21, 1981, the undersigned granted Respondents' motion to dismiss the complaint for failure to state a cause of action. On October 1, 1981, Petitioner filed its first amended administrative complaint realleging that Respondents had violated Chapter 470, as originally pled in the initial complaint, and added a third count not previously pled. By notice of hearing dated November 20, 1981, the matter was scheduled for hearing on January 14, 1982, in Daytona Beach, Florida. At the request of the parties, the hearing was postponed on the ground a settlement might be reached. The negotiations being unsuccessful, the matter was rescheduled for final hearing on June 1, 1982, at the same location.
Respondents filed a motion to dismiss the first amended Administrative Complaint on October 21, 1981. A hearing on the motion was held on April 26, 1982, in Tallahassee, Florida. On April 28, 1982, the undersigned entered a recommended order granting the motion to dismiss Count I of the complaint with prejudice. An order was also entered granting the motion to dismiss Count III for failure to state a cause of action-without prejudice to refiling an amended complaint; the remainder of the motion was denied. That order was appealed to the First District Court of Appeal, and the matter is presently pending before that court.
On April 8, 1982, Petitioner filed its second amended Administrative Complaint which incorporated the three counts contained in its first amended complaint and added two additional counts. Leave to file the second amended complaint was granted on May 3, 1982.
On May 17, 1982, Petitioner filed its third amended Administrative Complaint in response to the undersigned's order of April 28, 1982, which granted it leave to file an amended Count III. On May 27, 1982, Respondents
filed a number of motions including a motion to dismiss the third amended complaint, motion to dismiss with prejudice Count III of the third amended complaint, motion to quash Petitioner's motion for leave to proffer testimony and evidence relating to Count I of the Administrative Complaint, a motion to dismiss Counts IV and V, and a petition to quash taking of deposition. A hearing on the motions was held in Tallahassee, Florida, on May 28, 1982. At the conclusion of the hearing, the motion to strike Count I was granted; the remainder of the motions were denied.
At the final hearing, Petitioner presented the testimony of Paul Stoehr and offered Petitioner's Exhibits 1 through 9; all were received in evidence except Exhibit 6, which was a deposition of Kenneth R. Maser, a funeral director in Lincoln, Nebraska. It will be dealt with in the conclusions of law portion of this order. Respondent Dale Woodward testified on his own behalf and offered Exhibits 6 and 7; both were received into evidence. 1/
The transcript of hearing was filed on June 14, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondents on June 21 and 28, 1982, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or not supported by competent and substantial evidence.
The issue herein is whether Respondents should be disciplined for the alleged violations set forth in the amended Administrative Complaint.
Based upon the entire record, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, Respondent Dale David Woodward held embalmer license No. 0000836 and funeral director license Nos. 0000671 and 0000836 issued by Petitioner, Department of Professional Regulation, Board of Funeral Directors and Embalmers. The licenses were originally issued in July, 1950, and July, 1951, respectively, and are current through August 31, 1983.
Respondent Dale Woodward Funeral Home is the holder of funeral home license Nos. FH 0000123 and FH 0000705, also issued by Petitioner, and which authorize funeral establishments at Holly Hill and Ormond Beach, Florida. When the events herein occurred, Dale Woodward acted as funeral director of the Ormond Beach funeral home; another individual served as funeral director at the Holly Hill funeral home.
On June 24, 1980, Paul E. Stoehr received word that his father had passed away. Stoehr instructed that the body be sent to the Dale Woodward Funeral Home in Holly Hill. He visited the funeral home the same day and met in a conference room with George R. McCafferty, an unlicensed employee. Stoehr advised McCafferty he wished his father to be buried in Lincoln, Nebraska, and designated the Hodgman-Splain-Roberts Mortuary in Lincoln to be used.
McCafferty took Stoehr to a room where a number of caskets were on display; Stoehr then picked out a casket in the presence of McCafferty. He also "talked [with McCafferty] about small incidentals of the funeral." No specific prices were discussed, nor did any money change hands on that date. However, the next day Stoehr returned to the funeral home and gave McCafferty a $1,000 down payment toward the price of the funeral.
The deceased was transported by air to Lincoln, Nebraska, where services were held on June 28, 1980. Hodgman-Splain-Roberts Mortuary handled the funeral in Lincoln pursuant to Stoehr's request.
On July 8, 1980, after being contacted by the Social Security Administration, Stoehr paid an unidentified person at Respondents' establishment the remainder of the charges owed, for which he received a receipt. The second payment made was $2,432, which resulted in a total bill of $3,432.
The statement of charges given to Stoehr reflected that $1,200.50 was the portion to which the out-of-state funeral home was entitled. The remainder of the bill represented services and merchandise ($2,055), cash advances ($45.45) , and air transportation ($462). The total bill was discounted $262.95 for "professional discount". The receipt contained no representation that the out-of-state funeral home had to be paid by a date certain, or if any money had already been remitted.
On January 26, 1981, Stoehr received a telephone call from Kenneth R. Maser, who was employed by Hodgman-Splain-Roberts Mortuary in Lincoln. The next day Stoehr telephoned Respondents' office and advised an unidentified person that a part of the bill was still owed the out-of-state funeral director. After receiving another telephone call from Lincoln, Stoehr again telephoned the funeral home and spoke with McCafferty. On January 29, 1981, Stoehr wrote a letter to the funeral home but received no response. At an undisclosed date after January 29, 1981, Stoehr visited the funeral home and briefly spoke with Dale Woodward. Woodward referred Stoehr to his bookkeeper.
On February 12, 1981, Dale Woodward received a telephone call from the Nebraska funeral home. He immediately instructed his bookkeeper to pay the amount requested ($750).
McCafferty held no licenses from the State of Florida when he spoke with Stoehr. However, he was licensed to sell caskets by Volusia County. He was not authorized by the Respondents to make funeral arrangements with customers or to telephone out-of-state funeral homes concerning the same. He is no longer employed by Respondents and did not testify at the hearing.
Respondent Dale Woodward had no direct knowledge of McCafferty's activities in the Stoehr transaction.
Respondents employed a bookkeeper and office manager, who were physically located approximately one block from the funeral home. All mail and bills were received at that location. When the original arrangements for the Stoehr funeral were made, the funeral director at the Holly Hill home was suffering from terminal cancer. This in turn necessitated that Woodward spend a portion of time at the Holly Hill establishment whenever his regular director was unable to do so.
Woodward personally received no telephone calls from Hodgman-Splain- Roberts Mortuary prior to the February 12, 1981, call. He conceded the final payment was not made on a "timely" basis, but stated that he had no personal knowledge of the matter, and that had he been apprised of the same he would have immediately paid the bill.
Respondents did not receive the $3,500 paid by Stoehr. Although McCafferty or some other employee received the payments from Stoehr, the money was never deposited in the establishment's account.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Requiring resolution at the outset is the admissibility of Petitioner's Exhibit 6, a deposition of Kenneth R. Maser taken in Lincoln, Nebraska, on May 28, 1982. An objection to the use of the deposition in this proceeding has been made by Respondents on the grounds that (a) insufficient notice of taking the deposition was given, and (b) the failure to produce the witness at the final hearing constituted a denial of due process.
Petitioner urges that the deposition be admitted on several grounds. First, it contends that although the notice of deposition was given on only three days' notice, nonetheless Respondents' counsel had been aware of Petitioner's intention to depose the witness in some fashion for at least a month. Second, it asserts that Petitioner is under no obligation to bring an out-of-state witness to the hearing, and indeed this tribunal has no authority to compel his attendance. Consequently, no denial of due process has occurred.
Petitioner's arguments are deemed to be unavailing and must fail. The parties have agreed that Respondents' counsel received notice of taking the deposition on May 26, 1982, or two days prior to the deposition. Rule 1.310(b), Florida Rules of Civil Procedure, requires that "[a] party desiring to take the deposition of any person upon oral examination shall give rea- sonable notice to every other party to the action." (Emphasis supplied.) Although reasonable notice is not defined, recent decisional law provides some insight into a proper construction of the term. In Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981), the court held the admission of a deposition into evidence where only one day's notice was given to opposing counsel to be erroneous since such notice was unreasonable within the meaning of Rule 1.310(b), supra. The federal rule counterpart has been construed in a similar manner, and notices given nine and two days respectively before the trial were held to be unreasonable. Spangler v. Southeastern Greyhound Lines, et al., 10
F.R.O. 591 (Tenn. 1950); Crowley v. North British and Merchantile Insurance Co., Ltd., 70 F. Supp. 547 (S.C. 1947). Accord: Stover v. Universal Moulded Products Corporation, et al., 11 F.R.O. 90 (Pa. 1950)(where fixing date for taking deposition within two days after notice mailed held to be unreasonable). Similarly, two days' notice to Florida counsel to appear in Lincoln, Nebraska, cannot be construed as being reasonable under any circumstances. Although the parties admittedly "discussed" the possible taking of the deposition, there is no evidence that they agreed to any form of deposition to be used (i.e., written questions or oral examination) or a specific date, and indeed it is clear that Respondents were only given 48 hours' notice that the deposition would be taken on May 28 at a distant out-of-state location. This is confirmed by counsel's acknowledgment during the motion hearing that he short-noticed the Respondents on May 25 only after no agreement had been reached and the final hearing was less than a week away. Accordingly, it is concluded that unreasonable notice was given in contravention of the rule, and the deposition should not be admitted. Broward Industrial Plating, supra.
In light of the above conclusion, it is unnecessary to consider the due process argument raised by Respondents. However, the Department's procedure and rationale in dealing with this issue are troublesome, and if followed in future cases may give rise to similar objections by opposing counsel. It is abundantly clear that in criminal cases a constitutional preference for in-court
confrontation of witnesses exists. Palmieri v. State, 411 So.2d 985 (Fla. 3d DCA 1982). The purpose is to afford the accused the fundamental right to compel a witness to stand face-to-face with the jury or trier of fact in order that they may look to him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Palmieri at 986.
A license revocation case is only quasi-penal in nature, and the broad constitutional guarantees afforded a criminal defendant have not yet been made fully applicable in administrative proceedings. Nonetheless, a disciplinary proceeding takes on special significance in an administrative setting, since ".
. . the proceeding may result in the loss of a valuable business or professional license . . . ." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). In the case at bar, the deposed witness was obviously crucial to the Department's case, for it went to the time and expense of deposing him in Lincoln, Nebraska, and vigorously sought admission of the deposition into evidence. Because of the Petitioner's unwillingness to bring him to the final hearing, Respondents had but one real choice to confront and examine the prejudicial witness in a "live" setting--that being to attend the deposition in Lincoln, Nebraska. Unless they did so, they faced far less desirable alternatives, such as submitting written questions under Rule 1.320, Florida Rules of Civil Procedure, and foregoing the right to subject the witness to vigorous cross examination. The Department correctly asserts that it has no obligation under present case law to ensure the attendance of an out-of-state prosecution witness at a final hearing. 2/ However, if an agency is unwilling to bring a key out-of-state witness to a hearing or reimburse opposing counsel for expenses in traveling to the witness's forum, arguments will continue to arise that due process and fair play have been violated by allowing the agency to rely upon witnesses who reside beyond this tribunal's jurisdiction as a basis for revoking one's license.
Remaining at issue herein are four counts 3/ alleging illicit conduct on the part of Respondents. Each count will be dealt with separately.
Count II--It is contended that Respondents have violated Subsection 470.036(1)(k), Florida Statutes, by being guilty of misrepresentation or fraud in the conduct of their business or profession of funeral directing. This charge rests upon the premise that Respondents "knowingly" took money from Stoehr without intending to pay the out-of-state funeral home its share of the cost of the funeral. To reach this result, however, one must equate the slow payment of a bill to a creditor with a preconceived intention to defraud the creditor. Such a conclusion is not supported by the evidence. Respondents have readily conceded that the second installment was not paid on a timely basis, but such tardiness was clearly due to lax office procedures or simple negligence on the part of Woodward and his employees, rather than an attempt to defraud and misrepresent the creditor. Accordingly, Count II should be dismissed.
Count III--In this count, Respondents are charged with "misrepresenting the amount advanced on behalf of a customer for an item of service or merchandise" in contravention of Subsection 470.036(1)(u) , Florida Statutes. It is founded upon the allegation that "Respondents and their agents represented orally and in writing to Paul Stoehr that monies totaling $1,200.50 had to be and were paid to the 'out-of-town funeral director' in June and July of 1980." But a careful review of the record belies this contention for no competent testimony was offered to support this allegation. The receipt for services given to Stoehr simply itemized the various charges for the funeral and contained no
representation that any part thereof had to be paid to the out-of-town funeral home by a date certain. Moreover, there was no contention by Stoehr that he was incorrectly billed, or was not provided with all services reflected on his statement. Accordingly, it is concluded that no misrepresentation occurred, and Count III should be dismissed.
Count IV--This count alleges that Respondents allowed an unlicensed person (McCafferty) to make funeral arrangements or direct the arrangement percent for the preparation and transportation of a dead-human body for final disposition in violation of Subsection 470.031(f), Florida Statutes, thereby violating Subsections 470.036 (1)(a) and (h), Florida Statutes. The charges stem from the activities of McCafferty, an unlicensed employee who had some dealings in the Stoehr transaction. Petitioner charges that McCafferty "handled the full funeral arrangements, helping to pick out the casket, giving advice on flowers, arranging the funeral services to be conducted by the out of state funeral establishment and billing and collecting for the services rendered."
Subsection 470.031(1)(f), Florida Statutes, provides that:
No person shall:
(f) Knowingly employ unlicensed persons in the practice of funeral directing, embalming, or direct disposing. (Emphasis supplied.)
The record discloses that McCafferty "talked about small incidentals of the funeral" with Stoehr, showed him the caskets on display at the funeral home, and accepted a check as partial payment for the bill; however, there is no evidence that he "handled the full funeral arrangements" as Petitioner alleges. 4/ For example, there is no competent evidence that McCafferty was the individual who contacted the out-of-state funeral home, or that he sold the casket in question. Even if McCafferty performed "small incidentals of the funeral", it was done without the knowledge or approval of Woodward. Because Subsection 470.031(1)(f) requires that a licensee knowingly employ an unlicensed person in the practice of funeral directing, the critical statutory element of scienter is missing, and the charge should be dismissed.
Count V--The final count involves an allegation that Respondents "have violated Subsection 470.036(1)(n), Florida Statutes, by aiding and abetting an unlicensed person to practice funeral directing and embalming." In view of the uncontroverted evidence that Respondents had no knowledge of the, activities of McCafferty, the allegation that they aided and abetted him in his so called illicit conduct must also fail.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondents be DISMISSED.
DONE AND ENTERED , in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
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 16th day of July, 1982.
ENDNOTES
1/ Objection by Petitioner to Exhibits 1 through 5 were sustained.
2/ Compare Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981); Chittick v. Eastern Air Lines, Inc., 403 So.2d 595 (Fla. 1st DCA 1981); Palmieri v. State, supra; Kaufman v. Kaufman, 63 So.2d 196 (Fla. 1953)
3/ Count I of the complaint was dismissed with prejudice by Recommended Order dated April 28, 1982.
4/ It is doubtful whether accepting payment for a funeral constitutes "funeral directing, embalming or direct disposing" within the meaning of the law. If that were true, a bookkeeper or accountant for a funeral home would be unable to accept payment from customers in person or by mail unless the check or cash was first presented to the licensee for initial handling.
COPIES FURNISHED:
Joseph W. Lawrence II, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Wilson W. Wright, Esquire
217 South Adams Street Tallahassee, Florida 32303
Nicholas A. Caputo, Esquire
233 Second Street
Holly Hill, Florida 32017
Edward P. O'Doud Executive Director
Funeral Directors and Embalmers
111 East Coastline Drive, Room 507 Jacksonville, Florida 32202
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 28, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 1982 | Recommended Order | Evidence is insufficient to support finding of guilt. |
