STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4981

)

WINFRED BURRELL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 23, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donnette Reid, Esquire

Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Winfred Burrell, pro se

105 Lamont Avenue

Longwood, Florida 32750-2827 STATEMENT OF THE ISSUE

The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what, if any, disciplinary action should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on October 11, 1993. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of two witnesses and submitted seven exhibits for admission in evidence. Respondent testified in his own behalf, called one witness, and submitted one exhibit for admission in evidence. The identity of the witnesses and exhibits and the evidentiary rulings regarding each are set forth in the transcript of the formal hearing filed with the undersigned on March 8, 1995.

Petitioner timely filed its proposed recommended order ("PRO") on March 20, 1995. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for licensing funeral home directors and embalmers. Respondent is currently licensed as a funeral home director and embalmer under license number FE 0001751.

   
   

2. On February 5, 1993, Petitioner conducted a routine inspection of Burrell's Funeral Home (the "funeral home"). The funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell.

   
   

3. Mr. Urey Burrell has never been licensed by the state as a funeral home director and embalmer. Mr. Urey Burrell was the

   only person present at the funeral home at the time of the inspection.

   
   

4. The funeral home failed to maintain a casket price list and a copy of the current rules and inspection criteria. All of those documents were requested by Petitioner's inspector, and none of them were made available to the inspector.

   
   

5. Respondent did not display his current Funeral Director in Charge license in a conspicuous place. The license was hidden behind other documents on the wall.

   
   

6. Respondent signed blank contracts for services and left them at the funeral home for use in his absence. A forged license purporting to license Mr. Urey Burrell as a funeral home director and embalmer was conspicuously displayed on the wall of the funeral home.

   
   

7. The operating table in the preparation room was broken and rusty. The table was broken because Mr. Urey Burrell had just embalmed a lady who was so large that she broke the table.

   
   

8. The broken operating table was reinforced on two sides with unfinished wood. Unfinished wood is a porous surface. An operating table must be nonporous in order to avoid contamination by contagious disease and to prevent the spread of such disease to employees and others who may come in contact with the table.

   
   

9. The preparation room was not clean and sanitary. There were piles of trash littering the room. Junk and clothes were scattered about the rooms and hallways of the funeral home.

   
   

10. The funeral home must be kept clear of debris so that it can be easily cleaned and disinfected. This safeguards against the spread of contagious disease. Otherwise, the public may be exposed to contagious disease that can be tracked out of the funeral home. The floor of the funeral home was dirty.

    
    

11. Baseboards were splitting from the walls. The space between the baseboard and walls created another porous surface that can spread infectious disease.

    
    

12. The master trocar and scalpels were rusted. A master trocar is used to aspirate cavities that can not be prepared by embalming the venous and arterial

    system. Instruments must be kept clean in order to avoid the spread of infectious disease.

    
    

13. The funeral home failed to maintain an adequate supply of hardening compound. There was little or no hardening compound left in the container made available to the inspector. Mr. Urey Burrell stated that he had ordered additional compound. Hardening compound is essential to the services performed by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

15. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative

    Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. The evidence submitted by Respondent was neither credible nor persuasive and did not rebut the clear and convincing evidence submitted by Petitioner.

    
    

17. Respondent violated Section 470.035(1)(h), Florida Statutes, 1/ by failing to maintain and furnish a casket price list. Respondent violated Florida Administrative Code Rule 21J- 21.005(1)(a) 2/ by failing to conspicuously display: his current license and registration of all employees; and current copy of inspection rules and inspection criteria.

    
    

18. Respondent committed fraud, deceit, and misconduct within the meaning of Section 470.036(1)(g). Respondent signed blank contracts for use by Mr. Urey Burrell, an unlicensed person, in Respondent's absence. Respondent allowed Mr. Urey Burrell to conspicuously display a forged license in the funeral home and to perform embalming services in Respondent's absence. Respondent aided and abetted an unlicensed person to practice a licensed activity in violation of Section 470.036(n).

    
    

19. Respondent committed negligence, incompetency, and misconduct within the meaning of Section 470.036(1)(g) and violated Rules 21J-21.003(1)(b), (c), (f), (g), and (h). The operating table did not have non-porous surfaces. The floors

    were not sanitary. The split between the baseboards and floor created a porous surface. The master trocar and scalpel were not properly maintained.

    Respondent did not maintain a minimum supply of hardening compound. The funeral home and preparation room were not maintained in a clean and sanitary condition.

    
    

20. Section 470.036(2) authorizes Petitioner to revoke, suspend, or otherwise discipline the license of anyone found guilty of the acts committed by Respondent. Rule 21J-30.001(3) provides that the usual disciplinary action shall be to impose an administrative fine ranging from $250 to $500.

    
    

21. For aiding and abetting an unlicensed person to practice a licensed activity, Rule 21J-30.001(4)(n) provides that the usual disciplinary action

    shall be to impose an administrative fine of $250 to $1,000. Rule 21J- 30.001(4)(g) provides that the usual disciplinary action for fraud, deceit, negligence, incompetency, and misconduct shall be to impose a penalty ranging from reprimand to revocation.

    
    

22. Section 470.036(1)(h) provides in relevant part that the following acts constitute grounds for which any disciplinary action can be imposed:

    
    

    . . . A violation or repeated violation of this chapter or of chapter 455 and any rules promulgated pursuant thereto.

    
    

23. Rule 21J-30.001(4)(h) provides that the penalty for any violation of Chapters 455 and 470 shall be a penalty ranging from reprimand to revocation. A literal interpretation of Rule 21- 30.001(4)(h) would nullify the administrative fines mandated in Rules 21J-30.001(3) and (4)(n). Rule 21-30.001(4)(h) is construed herein as applying to a single violation of Chapter 455, rule violations for which no fine is authorized, and repeated violations of Chapter 470.

    
    

24. The construction of Rule 21J-30.001(4)(h) gives force and effect to all of the separate provisions in Rule 21J-30 as a whole. It is assumed that Petitioner did not intend for Rule 21- 30.001(4)(h) to reduce to a nullity those rules authorizing administrative fines.

    
    

25. Petitioner failed to show that Respondent's violations of Chapter 470 were repeated violations that occurred over a period of time. Rather, Respondent's violations arose out of a single inspection on February 5, 1993.

    
    

26. The fraud and sanitary violations committed by Respondent are egregious and warrant severe penalties. However, Petitioner seeks to revoke Respondent's license and to impose administrative fines in the aggregate amount of $10,000. 3/

    
    

27. It is inappropriate to impose administrative fines and deprive a licensee of the means of paying those fines when there is no evidence of high profitability derived from a history of ongoing violations; or actual injury to the public or to employees. The combination of severe fines and license revocation should be reserved for large operations that derive substantial profits from a history of violations or operations that have caused actual harm to the public.

    
    

28. Respondent operates a very small funeral home in terms of business volume and gross revenue. Respondent has not derived large profits from his noncompliance, and his noncompliance has not caused physical injury to the public or to any employee.

    
    

29. Respondent should have his license suspended for a period needed to bring the funeral home into compliance with applicable statutes and rules. Respondent should then be placed on probation for a period of two years.

    
    

30. During his probation, the conditions of the funeral home should be verified by scheduled and unscheduled inspections. Respondent and any employee should be required to complete, before the expiration of probation, continuing professional education courses or training prescribed by Petitioner.

31. The cost incurred by Respondent may approach or exceed the $10,000 in fines sought by Petitioner. In the event Respondent chooses not to comply with the terms of suspension and probation, or otherwise fails to comply with the terms of suspension and probation in a timely manner, Respondent's licensed should be revoked. Respondent will have the choice of whether to invest the money in his business or have his license revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of violating Section 470.035(1)(h) and Rule 21J-30.001(4)(h), but guilty of violating Sections 470.036(1)(g) and (n) and Rules 21J-21.003(1)(b), (c), (f), (g), and (h). It is further recommended that the Final Order suspend Respondent's license and place Respondent on probation in accordance with this Recommended Order. In the event Respondent chooses no to comply with the terms of suspension and probation, it is recommended that Respondent's license be revoked.

RECOMMENDED this 18th day of April, 1995, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1995.

ENDNOTES

1/ All section references are to Florida Statutes (1993) unless otherwise stated.

2/ All references to rules are to final rules promulgated in the Florida Administrative Code as of the date of this Recommended Order unless otherwise stated.

3/ Petitioner actually seeks fines in the aggregate amount of $10,500. However, a fine of $500 for violation of Sec. 470.035(1)(h) is disregarded because it is not required by the terms of that statute and because of the

construction of Rule 21J-30.004(h) in this Recommended Order. See, paras. 22-24 supra.

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Funeral Directors and Embalmers Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda Goodgame, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Donnette Reid, Esquire Qualified Representative Department of Business and

Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Winfred Burrell, pro se

105 Lamont Avenue

Longwood, Florida 32750-2827

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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MOTION FOR CORRECTED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 94-4981

WINFRED BURRELL,

Respondent.

/

MOTION FOR CORRECTED ORDER

COMES NOW the Department of Business and Professional Regulation by and through its undersigned Qualified Representative, pursuant to FLA. ADMIN. CODE Rule 60Q-2.032 and hereby moves this Honorable Hearing Officer to enter a Corrected Order to his Recommended Order filed April 18, 1995. As grounds therefor, Petitioner would state:

1. In the Findings of Fact, paragraph number 2, page 2, reads "[t]he funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell".

   
   

2. However, in Respondent's Admissions, he stated that Mr. Urey Burrell was his father not his brother. (Admissions #6, 18, 26, 30) Therefore, Petitioner believes that this paragraph should be corrected to reflect this fact.

   
   

3. In the Recommendation, page 9, it states that it is "RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 470.035(1)(h)..."

   
   

4. However, in the Findings of Facts, paragraph 17, page 5, it states "Respondent violated Section 470.035(1)(h)..."

   
   

5. The Findings of Fact goes on to state in Paragraph 27, page 6, that Section 470.036(1)(h) provides discipline for repeated violations of this chapter.

   
   

6. Paragraph 25, page 7, states that the "Petitioner failed to show that Respondent's violations of Chapter 470 were repeated violations that occurred over a period of time".

7. Therefore, Petitioner believes that the Recommendation should have stated that Respondent was not guilty of violating Section 470.036(1)(h) and not as it reads now which states that Respondent is not guilty of violating Section 470.035(1)(h).

   
   

8. Also the Petitioner believes that Section 470.035(1)(h) should be added to the list of violations that Respondent has been found to have violated.

WHEREFORE, Petitioner moves this Honorable Hearing Officer to file a Corrected Order in this cause.

Respectfully Submitted,

Donnette Reid

Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

(904) 488-0062

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and corrected copy of the foregoing has been furnished by U.S. Mail to Winfred Burrell, 105 Lamont Avenue, Longwood, Florida 32750-2827 this 20th day of April, 1995.

Donnette Reid

Qualified Representative

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CORRECTED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4981

)

WINFRED BURRELL, )

)

Respondent. )

)

CORRECTED ORDER

THIS CAUSE came on for consideration upon Petitioner's Motion for Corrected Order filed on April 20, 1995. Having reviewed the record in this proceeding, and being advised in the premises, it is

ORDERED that Petitioner's Motion For Corrected Order is GRANTED. The Recommended Order entered April 18, 1995, is corrected, nunc pro tunc, as provided in the Motion for Corrected Order.

DONE and ORDERED this 10th day of May, 1995, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1995.

COPIES FURNISHED:

Donnette Reid, Esquire Qualified Representative Department of Business and

Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Winfred Burrell, pro se

105 Lamont Avenue

Longwood, Florida 32750-2827

Docket for Case No: 94-004981

Orders for Case No: 94-004981