STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-6214

) ED HARRELL FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Ft. Myers, Florida, on February 27, 1996.

APPEARANCES

For Petitioner: Attorney Miriam S. Wilkinson

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Edgar Harrell, pro se

2435-C Fowler Street

Ft. Myers, Florida 33906 STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of aiding and abetting an unlicensed person to practice any licensed activity, in violation of Section 470.036(1)(n); failing to include the name of the funeral home establishment on the itemized price list, in violation of Sections 470.036(1)(h) and 470.035(2); and failing to display at the public entrance the name of the funeral director in charge, in violation of Section 470.036(1)(h) and Rule 61G8-21.003(6). If Respondent is guilty of any or all of these acts or omissions, then an additional issue is what discipline the Board of Funeral Directors and Embalmers should impose for the violation or violations.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 20, 1995, Petitioner alleged that Respondent, in employing Edgar Harrell as a funeral director, aided and abetted an unlicensed person to practice a licensed activity, in violation of Section 470.036(1)(n) (Count I); failed to include the name of the funeral home on the itemized price list, in violation of Sections 470.036(1)(h) and 470.035(2)

(Count II); and failed to display the name of the funeral director at the front entrance of the funeral home, in violation of Section 470.036(1)(h) and Rule 61G8-21.003(6) (Count III).

By Election of Rights dated November 23, 1995, Respondent disputed the material allegations and demanded a formal administrative hearing.

At the hearing, each party called one witness. Petitioner offered into evidence 11 exhibits and Respondent offered into evidence two exhibits. All exhibits were admitted. Respondent failed to file Respondent Exhibit 2, so it is deemed withdrawn. However, the filing of the exhibit would not have changed the outcome of the case.

The transcript was filed April 16, 1996. Petitioner filed a proposed recommended order. All of Petitioner's proposed findings of fact are adopted or adopted in substance, except paragraphs 4 and 5, which are rejected as subordinate; 11 and 12, which are rejected as unsupported by the appropriate weight of the evidence and irrelevant; and 18 and 19, which are rejected as unnecessary.

FINDINGS OF FACT

1. Respondent has been licensed in Florida since December 16, 1994, as a licensed funeral establishment, holding license number FH 0002113.

   
   

2. Edgar Harrell, who is also known as Ed Harrell, has never been a licensed funeral home director in Florida. Mr. Harrell owns Respondent and has owned at least part of Respondent at all material times.

   
   

3. Respondent advised Petitioner of a name change. By letter dated January 31, 1995, to "Ed Harrell and Jerome Smith, Owners, Ed Harrell Funeral Home," Petitioner informed Respondent that its request for a name change had been processed and was effective as of January 31, 1995. The name was changed from "Smith-Harrell Funeral Services" to "Ed Harrell Funeral Home." The name change reflected the purchase by Mr. Harrell of Jerome Smith's ownership interest in Respondent.

   
   

4. Petitioner's investigator conducted an inspection of Respondent's facility on March 1, 1995. He completed an inspection form reflecting the results of the inspection. The items corresponding to Count I are 134, 142, and

143. The item corresponding to Count II is 139. The item corresponding to Count III is 129. The investigator marked each of these items as not satisfactory.

1. Item 134 is: the "funeral establishment/director providing cremation services obtaining signed declaration for disposition of remains." The form states in handwriting, "Ed signed." Item 134 references Rule 61G8-31.001(2).

   
   

2. Item 142 is: the "customer's written agreement contains name, address, telephone number of establishment and disclosure statement." Item 142 references Section 470.035(4).

   
   

3. Item 143 is: the "customer's written agreement dated and contains signatures of customer and funeral director." Item 143 references Section 470.035(5).

4. Item 139 is: the "itemized price list of merchandise/services with establishment name, address and telephone available." The form states in handwriting, "Old estab[lishment] name." Item 139 references Section 470.035(1) and (2).

   
   

5. Item 129 is: the "establishment/funeral director in charge name displayed at public entrance." Item 129 references Rule 61G8-21.003(6).

   
   

6. The investigator marked other items as unsatisfactory on the inspection form, but these were not cited in the Administrative Complaint.

   
   

7. Petitioner proved by clear and convincing evidence that Mr. Harrell signed an Authorization for Cremation and Disposition. The agreement was dated December 15, 1994, and Mr. Harrell signed as the "licensed representative" of Respondent.

   
   

8. Petitioner failed to prove by clear and convincing evidence that the customers' written agreements with Respondent failed to contain the correct name of Respondent. The agreements introduced into evidence bore the name, "Smith- Harrell Funeral Services," but the agreements predated the effective date of the name change to "Ed Harrell Funeral Home." The proof was inconclusive as to blank form agreements.

   
   

9. However, Petitioner proved by clear and convincing evidence that the customers' written agreements with Respondent were signed by Mr. Harrell, rather than the licensed funeral director. In three cases, Mr. Harrell signed such agreements on behalf of Respondent.

   
   

10. Mr. Harrell was at all times a controlling person of Respondent. Petitioner thus proved by clear and convincing evidence that Respondent aided and abetting an unlicensed person in the practice of a licensed activity in the matters set forth above.

    
    

11. Petitioner proved by clear and convincing evidence that Respondent was still using an old price list, with the name of "Smith-Harrell Funeral Services," at the time of the inspection.

    
    

12. Petitioner proved by clear and convincing evidence that Respondent failed to display its name or the name of a licensed funeral director at the public entrance at the time of the inspection.

    
    

13. Neither Respondent nor Mr. Harrell committed any fraud or deceit, nor did either party attempt to commit any fraud or deceit, in the matters set forth above. Mr. Harrell simply had failed to obtain a new price list and new name display by the time of the inspection, which was little more than a month following the approval of the name change. However, Mr. Harrell offered no excuse for signing documents requiring the signature of a licensed funeral director.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

15. Section 470.036(2) authorizes the Board of Funeral Directors and Embalmers to revoke or suspend a license, impose an administrative fine, issue a reprimand, place a license on probation, restrict the authorized scope of practice, or assess the costs of an investigation and prosecution for violations of various provisions of Section 470.036(1) or other provisions of law cited in Section 470.036(1).

    
    

16. Section 470.036(1)(n) prohibits a licensed person from "[a]iding or abetting an unlicensed person to practice any licensed activity."

    
    

17. Section 470.035(2) provides that a licensee shall be subject to disciplinary action for failing to include on the price list the name of the funeral establishment. Section 470.036(1)(h) provides that the Board may impose discipline for any violation of Chapter 470.

    
    

18. Rule 61G8-21.003(6) requires that a cremation contract contain the signatures of the person arranging for the cremation and the funeral director.

    
    

19. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

20. Petitioner has proved the allegations of each of the three counts by clear and convincing evidence.

    
    

21. Rule 61G8-30.001(4)(h) provides that the penalty guidelines, for a violation of Section 470.036(1)(h), range from a reprimand, fine of $1000, six months' probation, and costs to revocation. Rule 61G8-30.001(3) provides that the penalty guidelines, for a violation of Section 470.036(1)(n), range from a fine of $500, six months' probation, and costs to a fine of $2500, one year's probation, and costs.

    
    

22. Rule 61G8-30.001(6) allows the Board to deviate from the penalty guidelines in the event of aggravating or mitigating circumstances. There is no evidence of aggravating circumstances, such as injury to the public. To the contrary, Respondent cooperated with the investigation, did not try to conceal anything, and implemented corrective action promptly.

    
    

23. Petitioner seeks in its proposed recommended order two years' probation, a reprimand, and a $1000 administrative fine.

    
    

24. The violations of Section 470.036(1)(h) involve the outdated price list and the lack of a proper name display. Under the facts of this case, these are relatively innocuous violations occasioned by a recent change in ownership and should merit no more than a reprimand.

    
    

25. The violation of Section 470.036(1)(n) involves the aiding and abetting of the practice of a licensed activity by an unlicensed person. Even though there is no proof of harm to the public, Respondent offered no excuse for this disregard of the licensing requirements. This violation, which had nothing to do with the recent change in ownership, is the most serious offense committed by Respondent and merits an administrative fine of $750 and the payment of the costs of the entire investigation and prosecution.

RECOMMENDATION

It is

RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order finding Ed Harrell Funeral Home guilty of two violations of Section 470.036(1)(h) and one violation of 470.036(1)(n) and imposing penalties of a reprimand, administrative fine of $750, and costs of the entire investigation and prosecution.

ENTERED on May 22, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 22, 1996.

COPIES FURNISHED:

Susan Foster, Executive Director Board of Funeral Homes and Embalmers 1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Attorney Miriam S. Wilkinson Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Edgar Harrell

2435-C Fowler Street

Ft. Myers, Florida 33906

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 within which to submit written exceptions. Some agencies allow a longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.

Docket for Case No: 95-006214

Orders for Case No: 95-006214