STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-685

) JAMES CUSACK and SUNSET FUNERAL ) HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on September 30, 1982, in Titusville, Florida. The transcript was filed on October 15, 1982, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. The time for issuance of this Recommended Order was extended to December 1, 1982, by stipulation.

Proposed findings and conclusions were filed by the Petitioner, and these have been largely adopted. Nothing was received from the Respondents or on their behalf, except a letter from James Cusack which was filed on November 1, 1982, in which he concurred with the proposed findings submitted by the Petitioner.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: James E. Cusack, in pro per

Post Office Box 2009 Deland, Florida 32720

By Administrative Complaint issued on February 2, 1982, the Respondents, James Cusack and Sunset Funeral Home, were charged with violations of three provisions of the Funeral Directing, Embalming, and Direct Disposition Practice Act, thereby warranting disciplinary action against them as prescribed by this statute. In particular, the Complaint alleges that:

1. The Respondents violated subsection 470.036(1)(a) and (h), Florida Statutes, by violating subsection 470.031(1)(f), Florida Statutes, in that they knowingly employed unlicensed persons to practice funeral directing and embalming.

2. The Respondents violated subsection 470.036(1)(n), Florida Statutes, by aiding and abetting unlicensed persons to practice funeral directing in the State of Florida.

   
   

3. The Respondents violated subsection 470.036(1)(a) and (h), Florida Statutes, by violating subsection 470.031(1)(a), Florida Statutes, in that unlicensed persons have practiced funeral directing without proper licensure in the State of Florida.

The Petitioner presented six witnesses in support of the Administrative Complaint, and introduced 15 exhibits which were received in evidence. The Respondent, James Cusack testified in his own behalf, and presented two other witnesses. Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts:

FINDINGS OF FACT

1. The Respondent, James Cusack, is a licensed funeral director and embalmer, having been issued licenses numbered FE 2036, EM 2036 and FD 1842 by the Board of Funeral Directors and Embalmers. During the periods of time relevant to this proceeding he was the licensed funeral director in charge of Sunset Funeral Home.

   
   

2. The Respondent, Sunset Funeral Home, is a licensed funeral establishment, holding establishment license number FH 974 issued on March 27, 1975. The present owner of Sunset Funeral Home is Amos Lewis, although there have been other owners in partnership with Mr. Lewis since the establishment became licensed.

   
   

3. George Williams of Titusville was employed by Sunset Funeral Home for the purpose of removing dead human remains from hospitals and other institutions. George Williams also signed such release forms as were required to remove human remains to the Sunset Funeral Home, as a mortician for the Respondent funeral establishment. In particular, George Williams performed this service on February 28, 1979, when he secured the release of James Whittenburg, deceased, from a Melbourne hospital by signing as mortician, and removing the remains to Sunset Funeral Home. George Williams is not a licensed mortician.

   
   

4. Amos Lewis, who is the owner of the Respondent funeral establishment but not licensed as a funeral director, took orders from families of decedents for caskets which were shown at Sunset Funeral Home by Amos Lewis. Amos Lewis also prepared the sales contracts for pre-need funeral services, and for the final disposition of decedents.

   
   

5. Timothy Stokes and Ethel Stokes own Stokes Ambulance Service in Melbourne, but neither is licensed as a funeral director. These persons retained an inoperative ambulance parked in front of their residence. This residence had previously been the location of Sunrise Funeral Home in Melbourne. The Stokes also retained a telephone directory advertisement in the name of Sunrise Funeral Home, and have retained the prior business telephone number of Sunrise Funeral Home as their home telephone number. This arrangement served to solicit clients for the Respondent, Sunset Funeral Home and its owner, Amos Lewis.

   
   

6. In July of 1981, Ethel Stokes made arrangements for funeral services for one Dan Drasson, deceased, for the Respondent, Sunset Funeral Home, although she was not licensed as a funeral director.

7. In October of 1978, Timothy Stokes signed mortuary release forms for Brevard Hospital in Melbourne, releasing the remains of Joe McCray to Sunrise Funeral Home, as a mortician and representative of Sunset Funeral Home. Timothy Stokes also provided pre-need funeral services for Diana Tolbert at the request of the Tolbert family, making arrangements for shipping the body of Diana Tolbert, preparing insurance papers, obtaining a death certificate, and shipping the body of Diana Tolbert to another state, as the representative of Sunset Funeral Home. Timothy Stokes has no license authorizing him to perform these functions.

   
   

8. In May of 1980, the Respondent, Sunset Funeral Home arranged for embalming the dead body of Joe Thomas without the consent of any person with authority to provide such consent. Sunset Funeral Home's representative, Ethel Stokes, provided a copy of an authorization to embalm which bore the forged signature of Joe Thomas' son, Frederick Montgomery.

   
   

9. The Respondent, Sunset Funeral Home, knowingly, employed and compensated Timothy Stokes and Ethel Stokes, unlicensed persons, for the purpose of practicing funeral directing and soliciting contracts for the same in the name of Sunset Funeral Home.

   
   

10. The Respondent, James Cusack, was associated with the Respondent, Sunset Funeral Home, as licensed funeral director but not as an owner. There was not sufficient evidence presented to demonstrate that he was involved in the activities described above, or that he had any direct or specific knowledge that such activities occurred, to support a finding of fact that James Cusack was guilty of any more than negligent supervision of the Respondent funeral establishment. James Cusack has removed himself from any association with Sunset Funeral Home, and he now works as a funeral director in Deland.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to subsection 120.57(1), Florida Statutes.

12. Section 470.028, Florida Statutes, requires, in part, as follows: "(2) All persons selling preneed funeral

    service contracts or direct disposition contracts shall be registered with the department. The registration shall be signed by the agent and the individual licensed funeral director or direct disposer to whom the agent will be responsible. The registration shall be renewed annually on a schedule established by the department. The licensed funeral director or direct disposer who has registered an agent shall notify the department within 10 days after the agent's status has been terminated.

    1. No person may act as an agent for a funeral director, funeral establishment, or direct disposer unless such person is registered pursuant to this section.

    2. Each licensee or registrant shall be subject to discipline if his agent violates any provision of this chapter applicable to said licensee or registrant. The department may refuse to register, or may revoke the registration of, any agent, who has violated the provisions of this chapter applicable to said agent."

13. Subsection 470.036, Florida Statutes, provides in part: "(1) The following acts constitute grounds

    for which the disciplinary actions in subsection (2) may be taken:

    1. Violation of any provision of Section 470.031, or Section 455.227(1).

       * * *

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

       * * *

       (n) Aiding or abetting an unlicensed person to practice any licensed activity."

14. Subsection 470.031, Florida Statutes, provides in part: "(1) No person shall:

    * * *

    (f) Knowingly employ unlicensed persons in the practice of funeral directing, embalming, or direct disposing."

15. Subsection 470.002(4), Florida Statutes, defines the: "[p]ractice of funeral directing" [as] making,

    at need or preneed, arrangements for, or directing the arrangements for, the preparation and transportation of dead human bodies for final disposition; or using, in connection with one's name the words "funeral director", "licensed funeral director", "undertaker", or "mortician"; or offering or holding oneself out as offering such services. However, nothing herein shall be construed to require a direct disposer or an agent under section 470.028 to be a funeral director."

    
    

16. Subsection 470.036(2), Florida Statutes, authorizes the Board of Funeral Directors and Embalmers to impose one or more of the following penalties when a licensee is found guilty of violating any of the provisions of subsection

    (1) of this statute:

    
    

    "(a) Denial of an application for licensure.

    1. Revocation or suspension of a license.

    2. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    3. Issuance of a reprimand.

    4. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify,

       including requiring the licensee to attend continuing education courses or to work under the supervision of another licensee.

    5. Restriction of the authorized scope of practice."

    
    

17. The incidents described in the Findings of Fact above establish specific violations of subsection 470.036(1), Florida Statutes, and repeated violations of Chapter 470 by the owner and representatives of Sunset Funeral Home. Since the funeral home itself holds an establishment license, this license should be revoked.

    
    

18. With respect to the Respondent, James Cusack, however, none of the witnesses presented any evidence to show that he was a direct participant in the unauthorized activities which are the subject of this proceeding. Invariably, these witnesses denied any connection between James Cusack and the occurrences they described. Nevertheless, as the funeral director in charge at Sunset Funeral Home, James Cusack should bear some responsibility for the actions taken by others under the authority of his license. However, this penalty should be minimal.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That the Respondent, James Cusack, and the Respondent, Sunset Funeral Home be found guilty of violating subsections 470.036(1)(a), (h) and (n) and 470.031(1)(a) and (f), Florida Statutes, as charged. It is further RECOMMENDED

   
   

2. That license number FH 974 held by Sunset Funeral Home be revoked, and that Sunset Funeral Home be assessed an administrative fine of $3,000. It is further RECOMMENDED

   
   

3. That James Cusack receive a reprimand, and be placed on probation for a period of one year, subject to such conditions as the Board may specify in the Final Order herein.

THIS RECOMMENDED ORDER entered this 15th day of November, 1982.

WILLIAM B. THOMAS, 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 15th day of November, 1982.

COPIES FURNISHED:

James H. Gillis, Esquire

130 North Monroe Street Tallahassee, Florida 32301

James E. Cusack

Post Office Box 2009 Deland, Florida 32720

Sunset Funeral Home

611 South Washington Avenue Titusville, Florida 32780

Mr. Edward P. O'Dowd Executive Director Florida Board of Funeral

Directors and Embalmers

Room 507, 111 E. Coastline Drive

Jacksonville, Florida 32202

Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000685

Orders for Case No: 82-000685