Petitioner: DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF FUNERAL, CEMETERY, AND CONSUMER SERVICES
Respondent: ELLIS MCANINCH
Judges: CHARLES C. ADAMS
Agency: Department of Financial Services
Locations: Jacksonville, Florida
Filed: Jul. 12, 2006
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, November 3, 2006.
Latest Update: Dec. 26, 2024
FLORIDA
DEPARTMENT OF
FINANCIAL SERVICES
FILED
TOM GALLAGHER .
CHIEF FINANCIAL OFFICER MAY
STATE OF FLORIDA 1 2006
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IN THE MATTER OF: ‘ted m OE
ELLIS LEROY MCANINCH, JR. Case No: 83385-FC-063a cn
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License No: FE 2571 Bee - Th
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ADMINISTRATIVE COMPLAINT
TO: — Ellis Leroy McAninch, Jr.
5505 Brandies Avenue
P. O. Box 282
Callahan, Florida 32011
Fredrick R. Short, Jr., Esquire
Century Plaza ~ Suite 203
3733 University Boulevard West
Jacksonville, Florida 32217
You, Ellis Leroy McAninch, Jr. (hereinafter referred to as “Mr. McAninch” “you” or
“your”), are hereby notified that the Department of Financial Services, Board of Funeral,
Cemetery, and Consumer Services (hereinafter “Department”) has received a investigative report
from its predecessor, Department of Business and Professional Regulations, relating to your
activities as a funeral director. Having reviewed the report, and being satisfied of the accuracy
and completeness thereof, it is alleged:
GENERAL ALLEGATIONS
1. Mr. McAninch is a licensed Funeral Director/Embalmer in Callahan, Florida.
2. The Department of Business and Professional Regulations licensed Mr.
McAninch pursuant to the provisions of Chapter 470, Florida Statutes. Effective October 1,
2005, the Department assumed jurisdiction over the licensure of Funeral Directors/ Embalmers
pursuant to the provisions of Chapter 497, Florida Statutes, the “Florida Funeral, Cemetery, and
Consumer Services Act” (hereinafter “the Act”).
3. Funeral Directors/Embalmers in the State of Florida are governed by the Act and
administrative rules promulgated pursuant thereto.
4. The Funeral Director/Embalmer must obtain written authorization from a legally
authorized person or a court-of competent jurisdiction prior to the disinterment and reinterment
of a dead human body.
5. The phrase “legally authorized person” is defined at section 497.005(37), Florida
Statutes:
“in the priority listed, the decedent, when written inter vivos
authorizations and directions are provided by the decedent, the
_ surviving spouse, son or daughter who is 18 years of age or older,
parent, brother or sister 18 years of age or over, grandchild who is
18 years of age or older, or grandparent; or any person in the next
degree of kinship. .
6. The Department has jurisdiction over the licensure of Mr. McAninch as a Funeral
Director/Embalmer, and the subject matter of this Administrative Complaint pursuant to the Act.
7. The Department’s panel found probable cause to charge Mr. McAninch with
violations of the Act on April 11, 2006.
. COUNT ONE
8. The above general allegations are hereby realleged and fully incorporated herein
by reference.
9. Bonnie Kay Shepherd, a seventeen-year-old married woman, died on February
13, 1972. She was buried at Bosque Bello Cemetery on February 15, 1972.
10. On November 5, 1996, the State of Florida, Department of Health and
Rehabilitative Services, Office of Vital Statistics issued a permit to disinter, transport and reinter
Bonnie Kay Shephard in the Jones Cemetery in Callahan, Florida. The permit was predicated on
an application signed by Mr. McAninch on the same date.
11. The disinterment and reinterment of the remains of Bonnie Kay Shephard were
done without any written authorization.
12. The disinterment and reinterment of the remains of Bonnie Kay Shephard were
done without the knowledge or permission of the only person legally authorized to approve the
action, her surviving spouse, Edward Wayne Shepherd.
IT IS THEREFORE CHARGED that you have violated or are accountable under the
following provisions of the Act which constitute grounds for discipline, including the suspension
or revocation of your license as a Funeral Director/Embalmer:
(a) Violating any provisions of the Act. [Section 497.152(1)(a), Florida Statutes)’;
(b) Failing to obtain written authorization from a legally authorized person prior to
the disinterment and reinterment of a dead human body. [Sections 497.384(3) and
497.005(37).
+ Sections 470.036(1)(a), and 455.227(1)(q), Florida Statutes (1995).
2 Section 75, Ch. 94-119, Laws of Florida, effective May 4, 1994; Section 1, Ch. 96-355 Laws of Florida, effective
June 1, 1996.
WHEREFORE, you are hereby notified that the Department intends to request the Board
of Funeral, Cemetery and Consumer Services to enter an order suspending or revoking your
licensure as a funeral director/embalmer, and to impose such penalties as may be provided under
the provisions of Subsection 497.153(5), Florida Statutes, and under the provisions of Fla.
Admin. Code Ch. 61G8-30.
NOTICE OF RIGHTS
You have the right to request a proceeding to contest this action by the Department
pursuant to sections 120.569 and 120.57, Florida Statutes, and Rule 28.107, Florida
Administrative Code. The proceeding request must be in writing, signed by you, and must be
filed with the Department within twenty-one (21) days of your receipt of this notice. Completion
of the attached Election of Proceeding form and/or a petition for administrative hearing will
suffice as a written request. The request must be filed with the General Counsel as acting
Agency Clerk, at the Florida Department of Financial Services, 612 Larson Building, 200 East
Gaines Street, Tallahassee, Florida 32399-0333. The Department must receive your written
response no later than 5:00 p.m. on the twenty-first day after your receipt of this notice. Mailing
the response on the twenty-first day will not preserve your right to a hearing.
‘YOUR FAILURE TO RESPOND IN WRITING WTHIN
TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS
NOTICE WILL CONSTITUTE A WAIVER OF MATERS
ALLEGED HEREIN AND AN ORDER OF REVOCATION
YOUR
RIGHT TO REQUEST A PROCEEDING ON THE WILL BE
ENTERED AGAINST YOU.
If you request a proceeding, you must provide information that complies with the
requirements of Rule 28-107.004, Florida Administrative Code. As noted above, completion of
the attached Election of Proceedings form conforms to these requirements. Specifically, your
response must contain:
(a) The name and address of the party making the request, for purpose of service;
(b) A statement that the party is requesting a hearing involving disputed issues of
material fact, or a hearing not involving disputed issues of material fact; and
(c) A reference to the notice, order to show cause, administrative complaint, or other
communication that the party has received from the agency.
If a hearing of any type is requested, you have the right to be represented by counsel or
other qualified representative at your expense, to present evidence and argument, to call and
cross-examine witnesses, and to compel the attendance of witnesses and the production of
documents by subpoena.
If a proceeding is requested and there is no dispute of material fact, the provisions of
section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written
evidence in opposition to the action taken by the Department or a written statement challenging
the grounds upon which the Department has relied. While a hearing is normally not required in
the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in
Tallahassee, Florida, or by telephonic conference call upon your request.
Failure to follow the procedure outlined with regard to your response to this notice may
result in the request being denied. All prior oral communication or correspondence in this matter
shall be considered freeform agency action, and no such oral communication or correspondence
shall operate as a valid request for an administrative proceeding. Any request for an
administrative proceeding received prior to the date of this notice shall be deemed abandoned
unless timely renewed in compliance with the guidelines as set out above.
Mediation of this matter pursuant to section 120.573, Florida Statutes, is not available.
No Department attorney will discuss this matter with you until the response has been received by
the Department of Financial Services.
DATED and SIGNED thie. —— _ day of > 2006.
KAREN CHANDLER
Deputy Chief Financial Officer
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing ADMINISTRATIVE COMPLAINT
has been furnished to Ellis Leroy McAninch, Jr, and Fredrick R. Short, Jr, Esquire, at the
above-stated addresses by U.S. Certified Mail this WA ot day of Oe oe
2006.
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Tesloy 6 Mendelson “7
Florida D€partment of Financial Services
Division of Legal Services
612 Larson Building
200 East Gaines Street
Tallahassee, Florida 32399-0333
(850) 413-4110
Fla. Bar No, 0297569
Docket for Case No: 06-002423PL
Issue Date |
Proceedings |
Nov. 03, 2006 |
Order Closing File. CASE CLOSED.
|
Nov. 03, 2006 |
Amended Expedited Notice of Dismissal filed.
|
Nov. 03, 2006 |
Expedited Notice of Dismissal filed.
|
Sep. 12, 2006 |
Order Granting Continuance and Re-scheduling Video Teleconference (hearing set for November 7, 2006; 9:00 a.m.; Jacksonville and Tallahassee, FL).
|
Sep. 06, 2006 |
Motion to Hold Proceedings in Abeyance filed.
|
Jul. 20, 2006 |
Order of Pre-hearing Instructions.
|
Jul. 20, 2006 |
Notice of Hearing by Video Teleconference (hearing set for September 13, 2006; 9:00 a.m.; Jacksonville and Tallahassee, FL).
|
Jul. 19, 2006 |
Unilateral Response to Initial Order filed.
|
Jul. 18, 2006 |
Suggestion of Locality for Final Hearing and Provision of Information Required by Initial Order filed.
|
Jul. 12, 2006 |
Initial Order.
|
Jul. 12, 2006 |
Election of Proceeding filed.
|
Jul. 12, 2006 |
Administrative Complaint filed.
|
Jul. 12, 2006 |
Agency referral filed.
|