STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1224

) NATIONAL CREMATION SOCIETY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 19, 1982, at the Pinellas County Judicial Building, St. Petersburg, Florida.

This case was consolidated for hearing purposes with Case No. 82-1225, and a separate Recommended Order was entered in that case. The issue for determination in Case No. 82-1224 is whether the respondent's license as a cinerator facility should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on April 8, 1982.

APPEARANCES

For Petitioners: Grover C. Freeman

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Fred W. Baggett

Post Office Drawer 1838 Tallahassee, Florida 32302

INTRODUCTION

A two-count Administrative Complaint was filed against the respondent National Cremation Society, Inc. on April 8, 1982, seeking to revoke, suspend or take other disciplinary action against the respondent's license as a cinerator facility for violations of Sections 470.025 and 470.036(1), Florida Statutes.

As grounds for such action, petitioners allege, in Count I, that respondent operated as a cinerator facility between June 30, 1980 and January 11, 1982, without a valid license to operate as a cinerator facility and, during that same period of time, failed to submit periodic reports to the Board of Funeral Directors and Embalmers concerning persons cremated and other required information. Count II of the Complaint alleges that the physical condition of the respondent's cinerator facility and the procedures of the respondent's staff are not sufficient to ensure that the cremains distributed to a deceased's representative after incineration are solely those cremains and not another's cremains. It is further alleged that on or about February 21, 1981, Ursula H. Smith was given what was represented to be the cremains of her deceased husband,

whose body had been incinerated by the respondent, and that at least a portion thereof were not the cremains or belongings of her deceased husband.

At the hearing, the petitioners presented the testimony of Ursula H. Smith; James John Halive; Leo Huddleston, an investigator for the Department of Professional Regulation; Joseph Lawrence, the Director of the Division of Regulation within the Department of Professional Regulation; Ronald T. Giddons, a funeral director; Kathleen Burrnester, the chief deputy registrar for the Bureau of Vital Statistics in Pinellas County; and Charles E. Jordan, the President of the National Cremation Society. Petitioners' Exhibits 1, 2 and 4 through 7 were received into evidence. The respondent presented the testimony of Kenneth Robinson who was qualified as an expert witness in the manufacture, installation, maintenance and operation of cremation retorts; John J. Finnigan, the President of the Cremation Association of North America; Charles E. Jordan, respondent's president; and Frances L. Cannizzaro, a licensed direct disposer and currently in charge of respondent's Largo facility. Respondent's Exhibits A through M were received into evidence.

As noted above, this proceeding was consolidated for hearing purposes with Case No. 82-1225, captioned Department of Professional Regulation versus National Cremation Society, Inc., Charles E. Jordan and Frances Cannizzaro.

That case involved an Administrative Complaint directed against the respondents' licenses as direct disposers and direct disposal establishment. Counts I and II of the Complaint in Case No. 82-1225 involve factual allegations identical to the factual allegations in Case No. 82-1224, but Case No. 82-1225 also contains two additional counts not relevant to the Complaint in Case No. 82-1224. A separate Recommended Order is entered in Case No. 82-1225.

Subsequent to the hearing, the parties submitted proposed recommended orders. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, immaterial or irrelevant to the issues as framed by the Administrative Complaint or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   COUNT I

   
   

2. During a portion of and prior to 1979, the respondent National Cremation Society (NCS) operated in conjunction with a licensed funeral home known as the Home for Funerals in Largo, Florida. In September of 1979, Charles

   E. Jordan, as General Manager of NCS, notified the Department of Professional Regulation that the NCS had acquired the "Home for Funerals, Funeral Home and Crematory," desired to change the name to National Cremation Society Crematory and to operate the facility as a "direct disposal establishment." A "direct disposal establishment" was a new entity created pursuant to legislation enacted in 1979. Chapter 79-231, Laws of Florida (1979). Mr. Jordan informed the Department that the facility was presently licensed as follows:

   
   

   "Home for Funerals-994-Expires 10/31/80

   Home for Funerals Crematory-054-Expires 6/30/80"

   The Department was requested to "please register this facility as a Direct Disposal Establishment and provide us with any forms we may need for this registration."

   
   

3. By letter dated September 11, 1979, Mr. Jordan was notified by the Department that the Department was in the process of adopting rules by which to issue permits for direct disposal establishments and that he would be notified when the rules were finalized and the forms were available. On or about November 11, 1979, respondent applied for registration as a direct disposal establishment on the form provided by the Department. By memorandum dated April 29, 1980, the respondent was informed by the Department that its registration was confirmed "based upon the investigative report that all requirements for a direct disposal establishment have been met." An inspection of the National Cremation Society Crematory had been performed on April 17, 1980 and the inspector made comments about the crematory equipment and noted that the "facilities are more than adequate."

   
   

4. The licensure and regulation of direct disposers and direct disposal establishments does not include the licensure or regulation of a cinerator facility. A cinerator facility is separately licensed and regulated by the Board of Funeral Directors and Embalmers. Section 470.025, Florida Statutes.

   
   

5. The respondent operated as a cinerator facility without a cinerator facility license from June 30, 1980 through January 11, 1982.

   
   

6. The licensed direct disposers for the respondent establishment, Mr. Jordan and Frances Cannizzaro, believed that the respondent's direct disposal establishment license included permission to operate the cinerator or cremation retort. The establishment had been inspected on several occasions prior to November 17, 1981, and had not been cited for any violations.

   
   

7. On November 17, 1981, the Department's Inspector Huddleston inspected the respondent's facility. Upon inquiry as to the existence of a cinerator facility license, he was told by Mrs. Cannizzaro that it was her understanding that the respondent's licensure as a direct disposal establishment permitted the respondent to perform all functions necessary for the disposition of dead human bodies, including cremation. Huddleston expressed his uncertainty at that time as to the need for a direct disposal establishment to also possess a separate cinerator facility license, and told Mrs. Cannizzaro that he would check into the matter.

   
   

8. On December 15, 1981, respondent was issued a citation that it was in violation of Section 470.025, Florida Statutes, for operating without a cinerator facility license. Respondent immediately applied for such a license on December 18, 1981, and the Board of Funeral Directors and Embalmers requested the Department of Professional Regulation to issue respondent a cinerator facility license to be effective January 11, 1982.

   
   

9. Prior to January 11, 1982, the respondent did not submit to the Board or the Department monthly reports containing the names of persons cremated and other related information. After January 11, 1982, much reports were properly submitted.

   
   

   COUNT II

   
   

10. Prior to his death, James E. Smith contracted with the respondent on a prepaid basis for cremation. After a protracted bout with cancer, he died on or

    about February 13, 1981, weighing less than 100 pounds at the time of his death. His widow, Ursula Smith, went to respondent's establishment on February 21, 1981, to obtain her late husband's cremains. She was "overwhelmed" by the large volume of the cremains represented to her as being those of her husband. She had had previous experience with the respondent which had provided for the cremation of two of her in-laws. In early June, 1981, while in the process of disposing of the ashes, Mrs. Smith discovered an approximate two-inch long metal piece of dental bridge work within the cremains of her deceased husband. Mr.

    Smith did not have that piece of bridge work or any other dental bridge work at the time of his death.

    
    

11. No competent evidence was adduced in this proceeding as to the appropriate volume of cremains that could be reasonably expected from the cremation of an individual human body.

    
    

12. When petitioner's Inspector Huddleston inspected the respondent's establishment in November of 1981, he observed that the cremation retort had an eroded floor "due to the falling off of the fire brick in the floor of the retort from the heat." He estimated that the indentations in the floor of the retort were up to one-half or three-quarters of an inch in depth at a time when the retort was cool and had been swept clean. Two other persons observed the rough floor of the retort in February of 1982.

    
    

13. An inspection performed on January 11, 1982, by the Department noted no violations concerning the physical condition of the cremation retort. As noted above, respondent's cinerator facility license became effective on that date.

    
    

14. There are no existing statutes or rules which establish any criteria, standards or guidelines relating to the physical conditions required for a cremation retort or a cinerator facility or acceptable procedures for the operation thereof.

    
    

15. Industrial Equipment and Engineering Company of Orlando, Florida, manufactures and sells over one-half of the existing cremation retorts in the United States and Canada. Kenneth Robinson, a vice president of that company who qualified and was accepted as an expert witness in the area of manufacturing, installing, maintaining and operating cremation retorts, has overseen the maintenance, repairs and overhaul of the respondent's retort since 1974 or 1975. One month prior to the hearing in this cause, Mr. Robinson found that the respondent's retort was operating in an efficient manner and in a manner acceptable to the standards of the industry. Respondent's staff possesses and utilizes the types of implements and tools customarily used in the industry for operation of the cinerator facility. It was Mr. Robinson's opinion that the operation of the respondent's retort and the procedures utilized would allow the cremains of one individual to be separated and contained separately from other cremains. He did admit that it was impossible to guarantee a 100 percent separation of each set of cremains.

    
    

16. The flooring in the respondent's retort has been replaced, but not after February of 1981. Mr. Robinson observed in September of 1982 that the respondent's retort floor was depressed, but the depression was not excessive or unusual based upon the amount of use it receives. It is possible that a piece of metal the size and configuration of the bridge work discovered by Mrs. Smith could become lodged into the uneven floor or a seam of a usable retort and not be extracted until a later cremation.

17. During the useful life of a retort, it is anticipated that a certain degree of wear to the floor in the form of depressions and unevenness will occur. Retort floors do erode over a period of time and cracks do appear. A crack less than three-eighths of an inch is acceptable before repair is required. When the equipment is heated, the material expands and seals off the crack.

    
    

    CONCLUSIONS OF LAW

    
    

18. Petitioners seek to revoke, suspend or take other disciplinary action against the respondent's cinerator facility license on the factual grounds that respondent operated the cremation retort between June 30, 1980 and January 11, 1982, without a valid license, failed to file certain monthly reports during that time and maintained and operated the retort in a manner which was not sufficient to separate the cremains. It is charged that such actions constitute violations of Sections 470.025 and 470.036(1)(b), (e), (f), (g), (h), (j), (k),

    (m) and (o) of the Florida Statutes.

    
    

19. There is absolutely no evidence in the record of this proceeding to demonstrate that respondent is guilty of violating subsections (b), (f), (g) or

    (m) of Section 470.036(1), Florida Statutes. Subsections (b), (g) and (m) relate to the practice of embalming or funeral directing. The record is devoid of any inference that the respondent engaged or attempted to engage in the Practice of embalming or funeral directing. No competent evidence was presented that respondent advertised goods or services in a fraudulent or misleading manner, as prohibited by subsection (f), Section 470.036(1), Florida Statutes.

    
    

20. Respondent is guilty of operating its facility between June 30, 1980 and January 11, 1982 without the cinerator facility license required by Section 470.025(1), Florida Statutes, and is guilty of failing to file the cinerator facility reports required by Chapter 21J-20.01, Florida Administrative Code. A violation of Chapter 470, Florida Statutes, or of rules affecting the handling or custody of dead bodies constitutes grounds for discipline pursuant to Section 470.036(1)(h) and (o), Florida Statutes. There is no evidence that respondent held itself out as possessing a cinerator facility license so as to constitute misrepresentation or fraud in the conduct of its business, contrary to Section 470.036(1)(k) or that it "intentionally or negligently" failed to file the reports required of cinerator facility licensees, as prohibited by Section 470.036(1)(e). The evidence does not demonstrate that respondent conducted any practice under a revoked, suspended or inactive license, as prohibited by Section 470.036(1)(j).

    
    

21. What the evidence does establish is that respondent mistakenly believed that its direct disposal establishment license authorized respondent to operate its crematory retort, and, for this reason, it did not obtain a separate cinerator facility license or file the required reports with the Board. In determining the proper disciplinary action to be imposed for this violation, it must be noted that the petitioners were well aware that respondent did have and did intend to operate the cremation retort through respondent's inquiries to the Department as early as September of 1979 and through various inspections conducted by Department officials throughout 1980 and 1981. As soon as respondent was informed that a separate license was required, it immediately applied for and received the cinerator facility license. It is concluded that the proper disciplinary action to be taken against the respondent for violating the cinerator facility license requirement between June 30, 1980 and January 11, 1982, is a $100.00 administrative fine.

22. The evidence adduced in this proceeding does not sufficiently demonstrate that the unfortunate experience suffered by Mrs. Smith is indicative of the conclusion that the physical condition of respondent's cinerator and the procedures utilized by respondent's staff are insufficient to ensure that the cremains of various individuals are separated, as charged in Count II of the Complaint. It was established by expert testimony that it is impossible to guarantee a 100 percent separation or segregation of cremains and that the respondent's retort was maintained and operated so as to allow the separation of cremated bodies to the extent normally expected and acceptable to the industry. The condition of the floor of the respondent's retort was anticipated and acceptable to the industry and the depressions or cracks in the floor were not excessive. There are no statutes, rules, standards or guidelines regarding the physical condition or operation of a cremation retort, hence, a violation of subsections (h) or (o), Section 470.036(1), Florida Statutes, cannot be demonstrated. The only remaining ground for discipline pertinent to the charges contained in Count II is "misrepresentation or fraud in the conduct of business" as prohibited by Section 470.036(1)(k). There is insufficient evidence to demonstrate that the cremains distributed to Mrs. Smith, with the exception of the bridge work, were not those of her deceased husband. The inclusion of the foreign object in the cremains distributed to Mrs. Smith was unfortunate and regrettable, but it does not establish any misrepresentation or fraud on respondent's part so as to warrant disciplinary action pursuant to Section 470.036, Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding respondent guilty of violating Sections 470.025(1) and 470.036(1)(h) and (o), Florida Statutes, for operating between June 30, 1980 and January 11, 1982, without a valid cinerator facility license and for failing to file the reports required by Rule 21J-28.01, Florida Administrative Code, and imposing an administrative fine against the respondent in the amount of $100.00. It is further RECOMMENDED that the remaining charges and allegations of the Complaint be dismissed.

Respectfully submitted and entered this 7th day of March, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 7th day of March, 1983.

COPIES FURNISHED:

Grover C. Freeman, Esquire 4600 West Cypress (Suite 410)

Tampa, Florida 33607

Fred W. Baggett, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Edward P. O'Dowd Executive Director

Board of Funeral Directors & Embalmers Room 407

111 East Coastline Drive Jacksonville, Florida 32202

Docket for Case No: 82-001224

Orders for Case No: 82-001224