STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-1812

)

GEORGE PINKNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, in Gainesville, Florida, on October 3, 1984. The appearances were as follows:

For Petitioner: Cecilia Bradley, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: George Pinkney

Post Office Box 503 Hawthorne, Florida 32640

This matter arose on Petitioner's Administrative Complaint charging Respondent with misconduct or negligence in the practice of funeral directing or embalming by wrongfully retaining certain overpayments for funeral services.

Subsequent to hearing, Petitioner filed proposed findings of fact and conclusions of law. Respondent also filed a letter with documents attached which have been placed in the record and are considered to be proposed findings. To the extent the proposed findings filed by the parties have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent is a licensed funeral director and embalmer, having been issued license numbers FE 1453, EM 1453 and FD 1281. He is currently under a five year license probation imposed by Petitioner in a December, 1982 Final Order. A condition of this probation is that Respondent not violate any provision of Chapter 455 or 470, Florida Statutes.

2. In early 1981, Respondent contracted with the family of Jefferson Munnerlyn, deceased, for funeral arrangements. Respondent's charge for these services totaled $1,895. Decedent's brother and sister-in-law made a down payment of $200. The family agreed to pay another $990 in the belief that the Veterans Administration (VA) would pay the remaining balance. The $990 family payment was to be paid in equal shares by Decedent's brother and two sons.

   
   

3. Decedent's brother paid his $330 share. When Decedent's sons failed to pay, Respondent sought and obtained an additional $660 from Decedent's brother, with the understanding that he would return any portion eventually paid by the sons.

   
   

4. On April 16, 1931, Respondent received a payment of $450 from the VA, and on November 15, 1981, Respondent received a second VA payment of $650 for the funeral of Jefferson Munnerlyn. Additionally, in 1981, each of the Decedent's sons paid their $330 share of the funeral costs.

   
   

5. By the end of 1981, Respondent had received overpayments of some $1,058 from all sources. In 1982, the VA discovered that family members had paid a total of $1,853 toward the Jefferson Munnerlyn funeral, and thereupon demanded that Respondent return $1,058 to that agency. In the meantime, however, Decedent's brother demanded that the $660 payment which had also been paid by Decedent's sons be returned to him. The VA and Decedent's brother continued to seek these amounts throughout 1982, 1983 and the first nine months of 1984.

   
   

6. Respondent, faced with conflicting claims to the overpayments, did nothing until the day of the hearing. On October 3, 1984, he returned $660 by cashier's check to Decedent's brother, who was present in the hearing room. Respondent also indicated that he was then returning the remaining $398 in overpayments to the VA.

   
   

7. Petitioner presented expert testimony on standards of conduct prevailing in the funeral directing profession. This testimony, set forth in Petitioner's Exhibit A, was taken by deposition. This evidence established that a funeral director is under a professional obligation to return any overpayments to the "appropriate party," and that failure to do so constitutes misconduct. However, the hypothetical questions posed to the expert witness did not assume the existence of conflicting claims to such overpayments.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 470.036, Florida Statutes, provides in part:

   
   

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

      * * *

      (g) Fraud or deceit, or negligence, incompetency, or misconduct, in the practice of funeral directing or embalming.

      * * *

      (i) Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failure to comply with a lawfully issued subpoena of the board or department.

      * * *

   2. When the board finds any licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

      1. Denial of an application for licensure.

      2. Revocation or suspension of a license.

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

      4. Issuance of a reprimand.

      5. 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.

      6. Restriction of the authorized scope of practice.

         
         

9. Respondent is guilty of negligence in the practice of funeral directing in that he held funds to which he was not entitled for nearly three years without making a significant attempt to resolve the conflicting claims.

   However, he cannot be found guilty of misconduct since the evidence does not indicate that he ever denied owing this money or that he sought through fraud or deceit to permanently retain such funds.

   
   

10. It does not appear that Respondent intentionally violated the terms of his probation. Therefore, he should not be found guilty of violating a lawful order of the board. However, prior disciplinary action must be considered an aggravating circumstance in these proceedings.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order suspending Respondent's funeral directing and embalming licenses for a period of thirty days.

DONE and ENTERED this 7th day of November, 1984, in Tallahassee, Florida.

R. T. CARPENTER, 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 November, 1984.

COPIES FURNISHED:

Cecilia Bradley, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

George Pinkney

Post Office Box 503 Hawthorne, Florida 32640

R. C. Blanton, Jr., Director Board of Funeral Directors

and Embalmers

111 East Coastline Drive Room 407

Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DOAH CASE NO. 84-1812 DPR CASE NO. 0041346

vs. 0040710

GEORGE PINKNEY, (EM 1453, FD 1281, FE 1453)

Respondent.

1. O. Box 503

   Hawthorne, Florida 32540

   /

   FINAL ORDER

   
   

   This cause came before the State of Florida, Board of Funeral Directors and Embalmers for final consideration at its duly noticed meeting of November 19, 1984 in Jacksonville, Florida. Upon a complete review of the record, including the Hearing Officer's Recommended Order, the exceptions filed thereto, and the transcript, the following findings and conclusions are made:

   
   

   FINDINGS OF FACT

   
   

   1. On or about April 6, 1984, an Administrative Complaint, copy attached, was filed against the Respondent. Formal Hearing was held on the Complaint in Gainesville, Florida on October 3, 1984. On or about November 7, 1984, a Recommended Order, copy attached, was filed. No exceptions have been filed to the findings of fact contained therein.

      
      

   2. The Board hereby adopts and incorporates as its own the findings of fact contained in the attached Recommended Order.

      
      

      CONCLUSIONS OF LAW

      
      

   3. The Conclusions of Law contained in the attached Recommended Order are hereby adopted and incorporated as the Board's own conclusions to the extent that they are not inconsistent with the Petitioner's Exceptions to Recommended Order, attached, which are also fully adopted and incorporated.

      
      

   4. Specifically, the Board rejects the Hearing Officer's conclusion that because the Respondent's activities were not "intentional", there was no violation of the terms and conditions of his former probation. In doing so, the Board adopts the position that 470.036(1)(i) does not require an intentional violation of a lawful order of this Board. The facts of record in this case indicate that Respondent failed and refused to return monies due and owing to a decedent's family and to a governmental entity despite his knowledge that he had been overpaid by one of them. Further, the record clearly establishes that Respondent made no effort to resolve any misunderstandings or conflicting claims regarding the funds until the date of his Administrative Hearing, which clearly does not establish the Respondent's good faith.

      
      

   5. Based upon the foregoing record evidence, it is ORDERED that the recommended penalty of the Hearing Officer be rejected and that the licenses of the Respondent be suspended for a period of two years with all but sixty days of that suspension being stayed, and thereafter that Respondent's licenses be placed on probation for a period of two years commencing on the date of the termination of Respondent's prior probation by Order dated December 12, 1982, attached. The terms and conditions of the probation shall remain the same with the additional requirement that Respondent submit a report within ninety (90) days of the date of this Order to the Executive Director of the Board regarding the receipt and disposition of VA claims.

      
      

   6. Pursuant to subsection 120.59 (4), Florida Statutes, the Respondent is hereby notified that he may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Agency and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order. This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 21st day of December,1984.

Fred Turner, Chairman Board of Funeral Directors and Embalmers

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing ORDER has been sent to George Pinkney at P.O. Box 503, Hawthorne, Florida by United States Mail, on or before 5:00 P.M. this 28th day of December , 1984.

R. C. Blanton, Jr.

Executive Director

cc: Counsel of Record

Joseph W. Lawrence II Jeffrey A. Miller

R. T. Carpenter, Hearing Officer

Docket for Case No: 84-001812

Orders for Case No: 84-001812