STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF FUNERAL DIRECTORS )

AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5940

) MARION COMMUNITY FUNERAL CHAPEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings (Division), held a formal hearing in this matter on March 12, 1996, in Avon Park, Florida.

APPEARANCES

For Petitioner: James E. Manning, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: Eloise Marion, Pro se

Marion Community Funeral Chapel 917 South Delaney Avenue

Avon Park, Florida 33825-4125 STATEMENT OF THE ISSUE

Should Respondent's funeral establishment license be revoked, suspended or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Complaint dated October 25, 1995, and filed with the Division of Administrative Hearings on December 7, 1995, Petitioner Department of Business and Professional Regulation (Department) is seeking to revoke, suspend or otherwise discipline Respondent's funeral establishment license, number FH 0001398. As grounds therefor, it is alleged that Respondent: (a) picked up the dead body of Eddie Wyche, on March 23, 1995, from Florida Hospital, Avon Park, Florida, and subsequently, without permission from a person legally authorized to grant such permission, embalmed the dead body in violation of Section 470.036(1)(t), Florida Statutes (1993); and (b) refused to promptly surrender custody of the dead body to Ed Harrell Funeral Home upon the express

order of the person legally authorized to require such surrender until payment for pick-up and embalming services was received by Respondent, in violation of Section 470.036(1)(p), Florida Statutes (1993). By an Election of Rights, Respondent denied the allegation of the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. By letter dated December 5, 1995, the Department referred this matter to the Division for the assignment of a Hearing Officer and the conduct of a formal hearing.

At the hearing, the Department presented the testimony of Jannie Wyche and Cheryl Ann Johnson. Department's exhibits 1 and 2 were received as evidence.

Respondent presented the testimony of Eloise Marion. Respondent did not offer any documentary evidence. Ed Harrell, a Department witness, although properly subpoenaed, failed to appear. By stipulation of the parties, the matter was continued to allow the Department an opportunity to depose Ed Harrell and Respondent to depose Marion's daughter even though her daughter had not been subpoenaed. The parties were to file a transcript of the deposition of their respective witness with the Division in lieu of the witness's live testimony at the hearing. Ed Harrell was deposed by the Department on March 22, 1996.

Respondent was given due notice of Ed Harrell's deposition but elected not to attend the deposition. Respondent also elected not to depose Marion's daughter. A transcript of Ed Harrell's deposition was filed with the Division on April 24, 1996. The transcript was identified as Department's exhibit 3 and was received as evidence. Department's exhibit 4 was filed with Ed Harrell's deposition and was received as evidence. Chapter 470, Florida Statutes (1993), and Chapters 61G8-14 through 61G8-32, Florida Administrative Code, was officially recognized.

Since there was to be no transcript of the proceeding filed with the Division, the filing of the Proposed Recommended Orders and the Recommended Order was to be governed by the date of the filing of the depositions taken subsequent to the hearing. The transcript of Ed Harrell's deposition was filed with the Division on April 24, 1996, Upon receipt of Harrell's deposition, an order dated May 10, 1996, was entered requiring the Proposed Recommended Orders to be filed no later than May 31, 1996. However, on May 30, 1996, a transcript of the hearing was filed with the Division. Therefore, the parties were allowed until June 14, 1996, to file their Proposed Recommended Orders. Petitioner filed its Proposed Recommended Order on June 3, 1996. Respondent has elected not to file a Proposed Recommended Order. A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the administrative agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 470, Florida Statutes.

   
   

2. At all times material to this proceeding, Respondent was a licensed funeral establishment in the State of Florida known as Marion Community Funeral Chapel (Community Chapel), located at 917 South Delaney Avenue, Avon Park, Florida, and issued license number FH 0001398.

   
   

3. At all times material to this proceeding, Eloise Marion (Marion) was the sole owner of Community Chapel.

4. Eddie J. Wyche, a 60 year old male, died while a patient in the care of Florida Hospital, Avon Park, Florida. A death certificate issued on March 29, 1995, shows the time of death to be 2:00 p.m. on March 23, 1995.

   
   

5. Jannie L. Wyche, wife of Eddie J. Wyche (deceased), was present at the hospital at the time of Eddie Wyche's death. Jannie L. Wyche (wife) was the "legally authorized person" to direct the disposition of the decedent's body.

   
   

6. Hospital officials advised the wife that the hospital did not have the necessary refrigeration facility to hold the dead body and that the body had to be removed immediately.

   
   

7. Thereafter, the hospital furnished a release form for the wife to sign which legally allowed Community Chapel to remove the body of the deceased from the hospital and to transport the body to Community Chapel's place of business.

   
   

8. Later on that same day, March 23, 1995, Marion, along with Leroy Brown, transported the body to Community Chapel.

   
   

9. In the early evening of March 23, 1995, Marion went to the deceased mother's home to inquire about making funeral arrangements but was advised that the wife would be handling the funeral arrangements.

   
   

10. Later on that same evening, Marion went to the wife's home to make an appointment to discuss the funeral arrangements. After Marion advised the wife that she had picked up the body, the wife told Marion "do what you have to do" or words to that effect. In response to the wife's inquiry of getting together to "make arrangements", Marion advised the wife that Marion did not have time at the moment to discuss the funeral arrangements due to a prior appointment, and because of a "viewing", which was scheduled for Friday, March 24, 1995, and a "burial" scheduled for Saturday, March 25, 1995, she would not be available until sometime between 3:00 p.m. and 6:00 p.m. on Saturday, March 25, 1995. No specific time for an appointment to discuss the "arrangements" was agreed upon at this time.

    
    

11. Because there was nothing further, other than embalming, which needed to be done to the body, Marion interpreted the wife's response of "do what you have to do" as the wife's verbal permission to proceed with embalming the body. Marion proceeded with having the body embalmed. Although the wife and Cheryl Johnson testified that the wife did not make such a statement, I find Marion's testimony to be more credible in this regard. Previously, Marion had previously handled the arrangements for the funerals of the wife's mother and sister, and it does not seem logical that Marion would have moved forward with the embalming body without some indication from the wife to do so.

    
    

12. Not completely satisfied with Marion's response about a time for making "arrangements", the wife, on the advice of her sister, decided to engage another funeral establishment to handle the funeral. Several hours later, the wife contacted Marion and advised Marion that she had decided to engage another funeral establishment to handle the funeral arrangements. At this time, the wife neither advised Marion as to the name of the other funeral establishment that was to handle the funeral arrangements nor give Marion any express order for the release of the body.

    
    

13. Later on in the evening of March 23, 1995, the wife telephoned Ed Harrell in regards to his funeral establishment handling the funeral

    arrangements for her late husband. Harrell advised the wife to contact and advise Marion of her decision, and that he would come by Marion Community the next day to pick up the body.

    
    

14. After talking with the wife, sometime around 10:00 p.m. on March 23, 1995, Ed Harrell telephoned Marion to advise her of the wife's decision to engage his establishment in handling the funeral arrangements. Harrell also told Marion that he had a release form to pick up the body and would be around on Friday, March 24, 1995, to pick-up the body. Upon inquiry by Harrell, Marion advised Harrell that the family owed for transporting and embalming the body.

    
    

15. There is no evidence that a release form was presented to Marion at any time before, or at the time, the body was released to Harrell by Marion.

    
    

16. Sometime on Friday, March 24, 1995, the wife advised Marion that Ed Harrell would be handing the arrangements for the funeral and would be by to pick up the body. At this time, Marion advised the wife that the wife owed Marion for transporting and embalming the body, and that "someone got to pay me for transporting and embalming." The amount owed was not discussed at this time. Marion did not tell the wife that the body would not be released unless, and until, the amount owed was paid.

    
    

17. After the wife talked with Marion, on Friday, March 24, 1995, Ed Harrell attempted to visit Marion in regards to picking up the body, but Community Chapel was closed. Ed Harrell then went to the wife's home. Later that day, Harrell contacted Marion by telephone, and was informed that there was a charge of $90.00 for transporting the body and $375.00 for embalming the body which had to be paid. Marion did not tell Ed Harrell the body would not be released unless, and until, the amount was paid.

    
    

18. On each occasion (at least three) when Harrell called Marion about picking up the body, Marion insisted that she must be paid for the embalming (there was no dispute about the transport fee), and each time Marion was told by Harrell that the wife would not pay the embalming fee. And each time that Marion was told that the wife would not pay the embalming fee, Marion would hang up the telephone. However, the more credible testimony is that Marion did not tell Harrell that the body would not be released unless, and until, the amount owed was paid. Apparently, Harrell considered Marion's hanging up the telephone as a refusal to release the body without first being paid. Although it may have been frustrating, Marion's hanging up the telephone when told she was not going to be paid, does not rise to the level of refusing an express order to release the body.

    
    

19. On Saturday, March 24, 1995, Marion released the body to Ed Harrell, and at the same time, Respondent was paid $465.00 for services rendered.

    
    

20. Marion assumed, based on the wife instructing Marion to "do what you have to do", that she had oral permission from the wife to embalm the body of the deceased, However, Marion neither attempted, nor was she given, written permission or authority from the wife to embalm the body of the deceased.

    
    

21. Other than advising Marion that Ed Harrell would be by to pick up the body, there is no evidence that the wife gave Marion an express order, requiring Respondent to promptly surrender the body to Ed Harrell.

22. Likewise, there is insufficient evidence to show that Marion refused to release the body unless, and until paid, after being given an express order by Harrell, on instructions from the wife, to release the body, notwithstanding the testimony of Ed Harrell which I find lacks credibility

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

24. Section 470.036(2), Florida Statutes (1993), empowers the Board of Funeral Directors and Embalmers (Board) to revoke, suspend or otherwise discipline the license of the Respondent's funeral establishment, if the Board finds that Respondent has committed any one of those acts enumerated in Section 470.036(1)(a) through (x), Florida Statutes (1993).

    
    

25. The Administrative Complaint charges Respondent with having violated Sections 470..036(1)(p) and (t), Florida Statutes (1993), which provide:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection

    2. may be taken:

       * * *

       (p) Refusing to surrender promptly the custody of a dead human body upon the express order of the legally authorized person; however, this provision shall be subject to any state laws or rules governing custody or transportation of deceased human bodies.

       * * *

       (t) Embalming a deceased human body without first having obtained written or oral permission from a legally authorized person; however, washing and other public health procedures, such as closing of the orifices by placing cotton soaked in a disinfectant in such orifices until authorization to embalm is received, shall not be precluded. [If oral permission is granted, the licensee must obtain written permission within a

       reasonable time as established by board rule.] [Emphasis supplied]

       
       

26. Section 470.002(18), Florida Statutes (1993), provides:

    
    

    (18) "Legally authorized person" means [the surviving spouse], son or daughter who is 18 years of age or older, parent, brother or sister

    18 years of age or older, grandchild who is 18 years of age or older, or grandparent; any person in the next degree of kinship; the guardian of the dead person at the time of death; the personal representative of the deceased; or public health officer.

    [Emphasis supplied]

27. Rule 61G8-15.006, Florida Administrative Code, provides:

    
    

    61G8-15.006 Reasonable Time for Obtaining Written Permission. A "reasonable time" for purposes of determining when a licensee or registrant must obtain written permission for the taking of possession of a dead human body or for embalming after oral permission has been granted shall be prior to final disposition of the dead human body.

    
    

28. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 2nd DCA 1977). The Department has the burden of proving such allegations by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Department has proven that Respondent committed a "technical violation" of Section 470.036(1)(t), Florida Statutes (1993), in that Respondent did not convert, or attempt to convert, what amounted to an oral permission to embalm the body, within a "reasonable time" as defined by Rule 61G8-15.006, Florida Administrative Code. However, the Department has failed to meet its burden as to a violation of Section 470.036(1)(p), Florida Statutes (1993). There was insufficient evidence to show that Respondent refused to release the body after receiving an express order, either written (release form) or verbal given by the wife directly or given by Harrell on instructions from the wife.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law and the disciplinary guidelines set out in Rule 61G8-30.001(4), Florida Administrative Code, it is recommended that the Board enter a final order finding that Respondent did not violate Section 470.036(1)(p), Florida Statutes (1993), and dismissing Count I of the Administrative Complaint. It is further recommended that the Board finds that Respondent violated Section 470.036(12)(t), Florida Statutes (1993), and that such violation was a "technical violation" requiring only a written reprimand and an assessment of an administrative fine in the amount of Five Hundred Dollars.

RECOMMENDED this 26th day of June, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 26th day of June, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5940

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1-8, 10-14, 16 and 18 are adopted in substance as modified in Findings of Fact 1 through 22.

2. Proposed finding of fact 9, as stated, is not a finding of fact but a conclusion of law.

3. Proposed findings of fact 15 and 17 are not supported by evidence in the record.

4. As to proposed finding of fact 19, Respondent was paid $465.00 which was calculated as $375.00 for embalming and 90.00 for transporting. There is an error in calculating the total amount due on Department's exhibit 4 since

   $375.00 plus $95.00 equals $470.00, not $465.00 as indicated on exhibit 4. The evidence shows that Respondent was paid $465.00 at the time the body was released but the release of the body was not condition upon the payment.

5. Proposed findings of fact 20 and 21 are neither material nor relevant.

Respondent's Proposed Findings of Fact.

Respondent elected not to file any proposed findings of fact and conclusions of law.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 7, Suite 728

Tallahassee, Florida 32399-0700

Jack Emory Farley, Esquire Department of Health and

Rehabilitative Services District 14

270 Bartow Municipal Airport Bartow, Florida 33830

R. E. D.

(Address of Record)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 95-005940

Orders for Case No: 95-005940