Jordan and respondent Frances L. Cannizzaro. Respondents' Exhibits A through M were received into evidence.
As noted above, this proceeding was consolidated for hearing purposes with Case No. 82-1224, captioned Department of Professional Regulation, Board of Funeral Directors and Embalmers versus National Cremation Society, Inc. That case involved an Administrative Complaint directed against the respondent's license as a cinerator facility. The Complaint in Case No. 82-1224 involves factual allegations identical to the factual allegations contained in the first two counts of the Complaint in the instant proceeding. A separate Recommended Order is entered in Case No. 82-1224.
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.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Respondent National Cremation Society, Inc. is a licensed direct disposal establishment, having been issued license number KB 6, doing business at 13655 Belcher Road, Largo, Florida.
Respondent Charles E. Jordan is a licensed direct disposer, having been issued license number KA 6. He is currently the President of National Cremation Society, Inc. (NCS).
Respondent Frances L. Cannizzaro is a licensed direct disposer, having been issued license number KA 5. She is currently in charge of the NCS's Largo facility.
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) . Respondent 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."
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 NCS applied for registration as a direct disposal establishment on the form provided by the Department. By memorandum dated April 29, 1980, NCS 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."
The licensure and regulation of direct disposers and direct disposal establishment 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.
The respondents operated as a cinerator facility without a cinerator facility license from June 30, 1980 through January 11, 1982.
The licensed direct disposers for NCS, respondents Jordan and Cannizzaro, believed that the direct disposal establishment licensed issued to NCS 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.
On November 17, 1981, the Department's Inspector Huddleston inspected the respondents' 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 licensure of NCS as a direct disposal establishment permitted the respondents 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.
On December 15, 1981, respondents were notified that the facility was in violation of Section 470.025, Florida Statutes, for operating without a cinerator facility license. Respondents 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 NCS a cinerator facility license to be effective January 11, 1982.
Prior to January 11, 1982, the respondents 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, such reports were properly submitted.
COUNT II
Prior to his death, James E. Smith contracted with the respondent NCS 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 respondents' 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 NCS 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.
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.
When petitioner's Inspector Huddleston inspected the respondents' 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.
An inspection performed on January 11, 1982, by the Department noted no violations concerning the physical condition of the cremation retort. As noted above, the cinerator facility license issued to NCS became effective on that date
There are no existing statutes or rules which establish any criteria, standards, or guidelines relating to the physical conditions required for e cremation retort or a cinerator facility or acceptable procedures for the operation thereof.
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 respondents' retort since 1974 or 1975. One month prior to the hearing in this cause, Mr. Robinson found that the respondents' retort was operating in an efficient manner and in a manner acceptable to the standards of the industry. Respondents and their staff possess and utilize 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 respondents' 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.
The flooring in the respondents' retort has been replaced, but not after February of 1981. Mr. Robinson observed in September of 1982 that the 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.
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.
COUNT III
The Home for Funerals acquired by the respondents in 1979 had a room designated as a chapel for funeral services. On February 22, 1982, two employees of the Department of Professional Regulation and a member of the Board of Funeral Directors and Embalmers made an announced visit to the respondent's Largo facility. They observed a sign reading "Chapel" with an arrow pointing to a room. That room contained folding chairs which were set up in a curved manner facing a drapery hung on a frame. There was a pedestal stand or podium in front of the drapery and a row of more comfortable chairs was set up near the drapery. While one of the three observers thought he heard "sacred" or "funeral" music playing at the time, other witnesses described the music as "FM radio" or "easy listening" music. No people were observed in this room.
Respondents Jordan and Cannizzaro testified that this room was never used for funeral services or rites after the facility was licensed as a direct disposal establishment. National Cremation Society did seek a declaratory statement from the Department as to whether or not it could establish and provide a memory room and a memory garden for the use of friends and family of a deceased person. By an Order dated December 4, 1981, the Department ruled that the provision of a room and garden would be a service attendant to the disposition of a dead human body and would be outside the scope of a direct disposal establishment license.
A brochure utilized by the respondents in 1980 contained the following language:
Q. May services be held while scattering the ashes over land or sea?
A. Yes, of course. Special arrangements can be made to satisfy the wishes of our
members. However, there would be an additional charge, as most Society members elect to have a private memorial service at home or in their house of worship.
Mr. Jordan explained that several years ago a captain of a yacht wrote to the respondents stating that he would be glad to take family members and cremains out to sea if they desired to have a service out there. The purpose of including the quoted language in the brochure was to alert the public that this captain was available and that respondents' members could make arrangements with him to go out for a service if they so desired. Respondents never made such arrangements for performing that service. The quoted brochure language is no longer utilized by the respondents.
COUNT IV
Respondent Cannizzaro is a sub-registrar commissioned to issue, check and file burial transit permits and, death certificates with the Bureau of Vital Statistics in Pinellas County. Such documents are required to be completed and filed within certain time periods. The Chief Deputy Registrar for the Bureau of Vital Statistics in Pinellas County, Kathleen Burmester, has experienced the problem of receiving incomplete and late-filed permits and death certificates from the respondents' establishment. Some sixty corrective notices were sent to the respondent establishment for errors or inaccuracies in filings. Other establishments also have similar problems with filing inaccurate documents with the Bureau of Vital Statistics. Ms. Burmester has been working with the respondents to cure such filing problems, and conditions have improved.
Ms. Burmester has the authority to recommend that a sub-registrar's commission be withdrawn for cause. She has not made any such recommendation with respect to respondent Cannizzaro's commission as a sub-registrar, and intends to continue working with her to correct any deficiencies.
Over the past three years, the National Cremation Society has performed over 5,000 cremations at its Largo facility. It is currently operating at a rate of approximately 200 per month.
CONCLUSIONS OF LAW
Petitioner seeks to revoke, suspend or take other disciplinary action against the respondents' licenses as direct disposal establishment and direct disposer on the factual grounds that respondents operated the cremation retort between June 30, 1980 and January 11, 1982, without a valid cinerator facility license, failed to file certain monthly reports during that time, maintained and operated the retort in a manner which was not sufficient to separate the cremains, provided or permitted services and rites in connection with direct disposals, and failed to completely and accurately file certain documents with the local registrar. It is charged that such actions constituted violations of Sections 470.019(2)(a), (d), (g), (h), (l) and (m) Florida Statutes.
There is absolutely no evidence in the record of this proceeding to demonstrate that respondents are guilty of violating subsections (a) or (l) of Section 470.019(2), Florida Statutes. Subsection (a) relates to the procuring of a registration by bribery, fraud or through an error of the Department or Board of Funeral Directors and Embalmers. The record is devoid of any inference that the respondents procured their licenses as direct disposers or direct disposal establishment in such a manner. No competent evidence was presented
that respondent advertised goods or services in a fraudulent or misleading manner, as prohibited by subsection (l), Section 470.019(2), Florida Statutes.
Respondents are guilty of operating the Largo facility between June 30, 1980 and January 11, 1982 without the cinerator facility license required by Section 470.025(1)7 Florida Statutes, and are 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 470.019(2)(h) and (m), Florida Statutes. There is no evidence that respondents held themselves out as possessing a cinerator facility license so as to constitute misrepresentation or fraud in the conduct of their business, contrary to Section 470.019(2)(d), Florida Statutes.
What the evidence does establish is that respondents mistakenly believed that the direct disposal establishment license authorized respondent NCS to operate its crematory retort, and, for this reason, a separate cinerator facility license was not obtained and the required reports were not filed with the Board. In determining the proper disciplinary action to be imposed for this violation, it must be noted that the Petitioner was well aware that respondents did have and did intend to operate the cremation retort through respondents' 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 respondents were informed that a separate license was required, they immediately applied for and received the cinerator facility license. It is concluded that the proper disciplinary action to be taken against the respondent NCS for violating the cinerator facility license requirement between June 30, 1980 and January 11, 1982, is a $100.00 administrative fine.
The evidence adduced in this proceeding does not sufficiently demonstrate that the unfortunate experience suffered by Mrs. Smith mandates the conclusion that the physical condition of respondents' cinerator and the procedures utilized by respondents' 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 respondents' 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 respondents' 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 (m), Section 470.019(2), 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 the business of a direct disposer" as prohibited by Section 470.019(2)(d). 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 respondents' part so as to warrant disciplinary action pursuant to Section 470.019, Florida Statutes.
The practice of direct disposition of dead human bodies, for which licenses or registrations as "direct disposers" and "direct disposal establishments" are required, does not include the provision of attendant services or rites such as funeral or graveside services. Section 470.002(10),
Florida Statutes. There was insufficient evidence in the record of this proceeding to establish that respondents ever knowingly and actively aided, authorized, assisted in, provided, directed or permitted attendant services or rites in connection with the direct disposal of a dead human body. No evidence was adduced to demonstrate that the room designated and set up on one occasion as a "chapel" was ever utilized as such or that any services or rites were permitted or conducted on the respondents' premises. While a 1980 advertisement brochure did allude to special arrangements for services held while scattering ashes over land or sea, there was no evidence that respondents ever made such arrangements for its members.
Finally, it is concluded that the evidence adduced at the hearing is insufficient to demonstrate that the manner in which the respondents filed required documents with the Pinellas County office of the Bureau of Vital Statistics warrants disciplinary action by the Department of Professional Regulation. The Chief Deputy Registrar did not elect to recommend that Ms. Cannizzaro's commission as a sub-registrar be withdrawn, but instead believed that the problems could be eliminated by working further with her. It was noted that no establishment always files the required documents in a timely and accurate manner. The deficiencies noted in the corrective notices sent to the respondents' establishment, were, for the most part, of a minor nature. There was absolutely no evidence that any of the respondents intended to misrepresent any data required in the reports or to otherwise commit fraud in the submission of such reports.
