STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3872

)

JAMES B. KERNEY, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3873

)

KERNEY’S FUNERAL HOME, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3874

)

JAMES B. KERNEY, JR., ) d/b/a KERNEY’S FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled consolidated cases by video conference on November 22, 1996. The judge presided from Tallahassee, Florida; the parties, their representatives and witnesses participated from the Zora Neale Hurston Building in Orlando, Florida, where the court reporter was also present.

APPEARANCES

For Petitioner: Donnette Reid, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: James Aaron

Qualified Representative (pro hac vice)

Post Office Box 3351 Sebring, Florida 33871

STATEMENT OF THE ISSUES

The three administrative complaints in these consolidated cases allege various violation of Chapter 470, Florida Statutes and Chapter 61G8-21, Florida Administrative Code, which regulate funeral directors and the operation of funeral establishments.

Specifically, these violations are alleged:

Section 470.024(2), Florida Statutes: operating a funeral establishment without a license;

Sections 470.024(6), 470.036(1)(h), Florida Statutes and rule 61G8-21.00F(1), Florida Administrative Code: not being available to the public during normal business hours;

Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(3), Florida Administrative Code: not having the funeral director’s photograph with the license;

Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(1)(b), Florida Administrative Code: not having the latest inspection reports available for inspections upon demand;

Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.005(1)(c), Florida Administrative Code: not having a current copy of inspection rules or criteria available for inspection upon demand;

Section 470.035(1), Florida Statutes: not having retail price list available upon inquiry;

Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(6), Florida Administrative Code: not having the name of the establishment and name of the funeral director displayed at the public entrance;

Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(1)(b), Florida Administrative Code: not having sanitary floors;

Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.003(5), Florida Administrative Code: not having prices conspicuously marked on the caskets;

Section 470.036(1)(a) and 470.031(l)(f), Florida Statutes: employing an unlicensed person in the practice of funeral directing, embalming or direct disposition;

Section 470.036(1)(n), Florida Statutes: aiding and abetting an unlicensed person in any licensed activity; and

Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.007(3), Florida Administrative Code: failing to insure that all employees comply with laws and rules of the Board.

The issues in this proceeding are whether the alleged violations occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

In response to the administrative complaints, James B. Kerney answered the allegations and requested a formal hearing. Upon referral to the Division of Administrative Hearings, the cases were consolidated and a single hearing was set.

At the hearing, Petitioner (agency) presented testimony of Frank Paolella, Jim Potter and Nancy Kerney. Petitioner’s exhibits 1-5 and 7 were received in evidence. Petitioner’s exhibit 6 was taken under advisement upon objection by Respondent. The document, which Respondent admitted signing, was

not otherwise identified or authenticated, and is rejected. It remains in the record marked for identification only.

Respondent testified in his own behalf and presented no other witnesses or documents.

The transcript was filed on December 13, 1996. Neither party submitted proposed orders or other post-hearing pleadings.

FINDINGS OF FACT

1. Respondent James B. Kerney, Jr. has been a licensed funeral director in the state of Florida for approximately 28 years, having been issued license number FE 0001557. He has been director in charge of Kerney Funeral Home in Sebring, Florida for approximately 27 years. The business is owned by him and his wife, Nancy Kerney, and is a licensed funeral home, having been issued license number FH 000182.

2. Mr. Kerney is confined to a wheelchair as the result of an automobile accident on December 6, 1993, in which his right leg and his neck were broken. His left leg had been amputated in 1986. Mr. Kerney also requires kidney dialysis, and on Tuesdays, Thursdays and Saturdays he is transported to a renal center where he spends three hours and fifteen minutes in each session.

3. Nancy Kerney describes her husband as “...medically- termed incomplete quadriplegic, which means that he can use his hands to some extent, but he needs assistance with everyday tasks of using his hands.” (transcript, p. 118) Mrs. Kerney is his

   sole caregiver; she must bathe and dress him with the assistance of an automated lift. She also has a power of attorney which permits her to sign documents on her husband’s behalf.

4. From January 1989 until August 1995, Frank Paolella was employed as an inspector for the Department of Business and Professional Regulation, conducting inspections of various facilities regulated by that agency, including funeral homes. On February 28, 1995, after calling for an appointment the previous day, Mr. Paolella visited Kerney Funeral Home for a routine inspection.

5. Mrs. Kerney met the inspector at the funeral home and opened the office for him. Mr. Kerney was not present.

6. During the course of the inspection, Mr. Paolella observed that the establishment license had expired on November 30, 1994 and had not been renewed. He also observed other violations which he noted on his inspection form: there was no photograph of the funeral director displayed on the director’s license; there were numerous dead roaches on the floor; and the names of the establishment and funeral director were not displayed at the public entrance (noted as a second-time violation). In addition, when the inspector requested certain documents, neither he nor Mrs. Kerney could find them in the office. These missing documents included a copy of inspection rules or criteria, copies of signed need and pre-need contracts, copies of final bills or written agreements, and an itemized

   price list of merchandise and services with the establishment’s name, address and telephone number. After the inspection, both Mr. Paolella and Mrs. Kerney signed the inspection form.

7. Mr. Paolella returned for a follow up inspection on March 21, 1995. This time he arranged to meet Mr. Kerney at the Kerney home, a couple of blocks from the funeral home. They met at 9:00 a.m. and made arrangements to meet again at the funeral home in the afternoon after Mr. Kerney finished his dialysis.

8. That same afternoon, Mr. Kerney arrived at the funeral home in a handicapped-equipped van driven by his wife. Mr. Kerney was unable to reach the fuse box to turn on the lights, and only with some difficulty, Mrs. Kerney was able to get the lights turned on with instructions from her husband.

9. On this visit, Mr. Paolella again observed many violations. There were still numerous dead roaches on the floor and sheets of plaster that had fallen from the ceiling to the floor. There was no price displayed on the least expensive casket; customers’ written and signed agreements were not available; the latest inspection forms and the copy of inspection rules or criteria were not available; the funeral director’s and establishment licenses were not properly displayed and the director’s and establishment’s names were not displayed at the public entrance. In addition, the funeral home license had still not been renewed. On this, as well as the prior inspection in February, Mr. Paolella noted his concern about whether, as

   director in charge, Mr. Kerney was reasonably available to the public during normal business hours.

10. On or about April 5, 1995, Mr. Kerney was admitted to Highlands Regional Medical Center and was still in the hospital a month later, on May 2, 1995. (Answer to Administrative Complaint in cases no. 94-07325 and 95-07329.)

11. On April 28, 1995, Mr. Paolella returned to Kerney’s Funeral Home, accompanied by his supervisor, James Potter. The agency had received a complaint that Kerney’s was conducting unlicensed activity.

12. The pair approached the front door of the establishment and found it ajar, with lights on inside. They knocked and shouted out their presence, but there was no answer; they entered and proceeded to the back rooms, thinking that the inhabitant must be in the back, out of hearing range. The last room in the back is the preparation room. There they found a body laid out on the table, but no living person was present.

13. Concerned that there may have been a problem, the inspectors went to the Sebring police station and returned to the Kerney Funeral Home with two policemen, a sergeant and a photographer. There was still no living person on the premises and the photographer took a series of photographs.

14. The photographs accurately reflect what Mr. Paolella observed on the April 28th inspection: many dead roaches on the floor, fallen plaster from the ceiling, opened bottles and jugs

    of unidentified liquids, a dirty sink, tools and instruments laid out on a dirty linen, hairbrushes and combs with hairs still embedded, and the body laid out, covered except for the head. A photograph of the exterior of the building shows a permanent sign in the lawn, separate from, but in front of the building, with the name “Kerney Funeral Home”.

15. The inspectors called the Kerney residence and Mrs. Kerney came to the funeral home. She opened the office and responded to questions. She said the Mr. Kerney was in the hospital and their son, James Kerney, III, had picked up the body and had embalmed it. The inspectors called another funeral home and arrangements were made to have the body picked up and a service and burial conducted.

16. Mr. Kerney concedes that the funeral home license was allowed to lapse and he sent the check to renew it after the inspection by Mr. Paolella. From the end of November 1994 until the handling of Mr. Johnson (the corpse found by the inspectors) in April 1995, the home did not handle any bodies, according to Mr. Kerney. He submitted monthly affidavits to the agency reflecting this non-activity, but there is no monthly affidavit on file for the month of December 1994. By April, the license was apparently renewed.

17. Mr. Kerney also concedes that there are long periods of time during which he is not able to be at the funeral home. The business phone rings at his residence and he arranges to meet

    clients at the facility. He sold Mrs. Johnson the casket for her husband by dealing with her by telephone from the hospital. He denies that he told his son to embalm Mr. Johnson, but Mr. Kerney could not explain how the body did get embalmed or why it was at his establishment unattended. Mr. Kerney signed the Johnson death certificate as the funeral service licensee.

18. Mr. Kerney insists that he is able to embalm bodies from his wheelchair. He mixes the fluid and makes the incisions or he directs someone in his presence to perform these tasks.

19. According to Mr. Kerney, he deliberately left roaches on the floors because after he set off aerosol sprays he let the poison keep working before cleaning up the bugs. He attributed the fallen ceiling to a water leak caused by the upstairs tenant. He also claimed that the other violations found by the inspectors were just temporary lapses and that all of the problems were quickly corrected.

20. It is evident that serious violations occurred and that Mr. Kerney has to rely on his family, his son and his wife, to perform functions for which he is responsible. Neither Mrs. Kerney nor James Kerney, III are licensed funeral directors. Mr. Kerney is unable to spend the time at his facility to keep it in compliance with licensing regulations and criteria even if he is able to personally supervise or conduct the embalming of the occasional body handled by the funeral home.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1) and 455.225(4), Florida Statutes.

22. In license discipline cases such as this the agency has the burden of proving by clear and convincing evidence the violations which are alleged in its administrative complaints. Department of Banking and Finance v. Osborne Stern, 670 So.2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

23. Chapter 470, Florida Statutes and Chapter 61G8-21, Florida Administrative Code, regulate the practice of funeral directing in the state of Florida. The relevant versions of the statutes and rules are those in effect at the time of the alleged violations. Reference to the statutes herein is to the 1993 statutes, and reference to the rules is to those rules as amended in 1994.

24. Section 470.036(2), Florida Statutes, authorizes the Board of Funeral Directors and Embalmers to impose penalties ranging from reprimand to license revocation when funeral directors or funeral establishments are found guilty of violating various provisions of section 470.036(1), Florida Statutes, including the general terms of section 470.036(1)(h), Florida Statutes, which prohibits violations of chapters 455 and 470, Florida Statutes, and rules promulgated pursuant thereto.

25. Section 470.024(2), Florida Statutes requires an establishment operating license for the conduct, maintenance, management or operation of a funeral establishment. When he allowed the funeral home license to lapse for a period of several months, Mr. Kerney violated this provision. Even though no bodies were apparently handled during this period, the establishment was still maintained and the Kerneys continued to file most of the reports required for an active funeral establishment.

26. Section 470.024(6), Florida Statutes, requires that each licensed funeral establishment shall have one full-time funeral director in charge and shall have a licensed funeral director reasonably available to the public during normal business hours for that establishment. Rule 61G8-21.007(2), Florida Administrative Code, defines what is meant by the terms of that section:

    61G8-21.007 Responsibility of Funeral Director in Charge.

    
    

    1. The full-time funeral director in charge of each funeral establishment shall be responsible for making sure that a licensed funeral director is reasonably available to the public during normal business hours for that establishment.

    2. For the purposes of this rule:

       1. “full-time funeral director in charge” means a licensed funeral director who is responsible for the day to day operation of a funeral establishment;

       2. “reasonably available to the public” means:

       1. on the premises and ready to make funeral arrangements for, or to respond to, persons entering the establishment, or

       2. in a position to be notified of persons entering the establishment and to respond to them in person or telephonically within two hours to set up an appointment for a face to face meeting with them during normal business hours.

    3. Each full-time funeral director in charge shall be responsible for only one funeral establishment and shall also be responsible for making sure the funeral establishment and all persons employed in the establishment comply with all applicable laws and rules of the Board. This subsection shall not be construed to absolve funeral establishments or other persons from liability for their violations of such laws and rules.

27. Mr. Kerney was consistently not available within the scope of the law and rule when he was undergoing dialysis, or when he was hospitalized for a long period as he was in 1995. The rule does not contemplate selling caskets and making funeral arrangements from a hospital telephone. While he never admitted that he knew of or actually directed his son to embalm the Johnson body, Mr. Kerney’s wife, co-owner of the licensed

    facility, admitted that Mr. Kerney III performed the embalming, a circumstance fully occasioned by his father’s non-availability and a circumstance which the senior Mr. Kerney should have anticipated.

28. Section 470.032(1)(f), Florida Statutes, prohibits the knowing employment of unlicensed persons in the practice of funeral directing, embalming or direct disposal. Section 470.036(1)(n), Florida Statutes, prohibits aiding or abetting an unlicensed person to practice any licensed activity. As discussed above, Mr. Kerney should have known, as his wife and

    co-owner did, that his son would embalm the Johnson body in Mr. Kerney’s absence.

29. Rule 61G8-21.003(l)(h), Florida Administrative Code, “Inspection Criteria”, requires that the preparation room shall be maintained in a “clean and sanitary condition”. The testimony of the inspectors, and admissions of Mr. Kerney regarding the presence of roaches, albeit dead roaches, amply establish that this criteria was violated.

30. The other violations, alleged and proven, are of more minor consequence. Rule 61G8-21.003(5), Florida Administrative Code, requires that prices be conspicuously marked on or in the caskets; Rule 61G8-21.003(6), Florida Administrative Code, requires that the name of the establishment and the name of the full time funeral director in charge be displayed at the public entrance; Rule 61G8-21.005(3) requires display of the funeral director’s license with a photograph of the license, approximately two inches by two inches, and less than two years old.

31. Other statutes and rules require the availability, upon demand, of certain documents: current licenses, inspection reports and copies of inspection rules or criteria (Rule 61G8- 21.005(1), Florida Administrative Code); and retail price lists (Section 470.035(1), Florida Statutes).

32. As found above, the agency met its burden of proof as to both serious and minor violations committed by Mr. Kerney and

by his licensed funeral home. Rule 61G8-30.001, Florida Administrative Code describes the disciplinary guidelines adopted by the Board of Funeral Directors and Embalmers, and includes mitigating and aggravating factors. In determining an appropriate penalty, these factors have been considered: lack of evidence of prior discipline in a long license history of both Mr. Kerney and his establishment; and the severity of the offenses, including the wretched condition of the establishment caused by Mr. Kerney’s inability to properly perform his responsibilities as director in charge.

RECOMMENDED

Based on the foregoing, it is hereby

RECOMMENDED that the Board enter its Final Order finding that Respondents committed the violations as charged; that the licenses of both James B. Kerney and Kerney Funeral Home be suspended for one year; that the licenses of James B. Kerney and Kerney Funeral Home be fined $500.00 each; and that as a condition of reinstatement after suspension, Kerney Funeral Home demonstrate that Mr. Kerney or another appropriate licensed individual is willing and capable of performing the function of director in charge.

DONE and ENTERED in Tallahassee, Leon County, Florida, this 27th day of January, 1997.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th Day of January, 1997.

COPIES FURNISHED:

Donnette Reid, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James Aaron

Post Office Box 3351 Sebring, Florida 33871

Sue Foster, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0754

Lynda L. Goodgame, Esquire 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003872

Orders for Case No: 96-003872