FILED NOV 14 2008 REPRESENTING ALEX SINK CUSTATEOP FLORIDA Deoketea by: FAl INTHE MATTER OF D334 R.J. GAINOUS FUNERAL HOME CASE NO.: 98265-08-FC FO 41765 / ADMINISTRATIVE COMPLAINT TO: RJ. GAINOUS FUNERAL HOME, INC. 804 Dr. Mary McLeod Bethune Blvd. Daytona Beach, FL 32114 R.J. GAINOUS FUNERAL HOME, INC. is hereby notified that the Department of Financial Services Chief Financial Officer of the State of Florida has directed an investigation in connection with license number F041765 to operate as a Funeral Establishment. Based upon the investigation, it is alleged: GENERAL ALLEGATIONS 1. The Board of Funeral, Cemetery and Consumer Services (hereinafter “the Board’) created within the Department of Financial Services, and the Department of Financial Services have jurisdiction of R.J. GAINOUS FUNERAL HOME, INC.”s licensure as a Funeral Establishment and the subject matter of this proceeding, pursuant to the provisions of Section 20.121 and Chapter 497, Florida Statutes, the Florida Funeral, Cemetery and Consumer Services Act (hereinafter “The Act”). 2. The Board has the authority to determine through probable cause panels whether there is probable cause to believe there is a violation of Chapter 497, Florida Statutes, and whether a proposed administrative prosecution of a licensee shall go forward, as set forth in Section 497.103(1)(v) and 497.153(3), Florida Statutes. 3. A probable cause panel found probable cause to charge RI. GAINOUS FUNERAL HOME, INC. with violations of Chapter 497, Florida Statutes and the Department’s administrative rules on October 27, 2008 and directed the Department to prosecute. | 4, At all times relevant to the allegations of this Administrative Complaint, RJ. GAINOUS, INC., was licensed by the State of Florida to conduct business as a funeral establishment, pursuant to the provisions of the Act. R.J Gainous Funeral Home’s license number is F041765. 5. Funeral directors and embalmers are governed by the Act and certain administrative rules contained in the Chapter 69, Florida Administrative Code. 6. Pursuant to Rule 69K-21.007, Florida Administrative Code, 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. 7. Pursuant to Section 497.153(7), Florida Statutes, the acts and omissions of any person employed by or under contract tc the licensee shall be treated as the acts and omissions of the licensee. 8. At all times relevant to the allegations of this Administrative Complaint, R.J. GAINOUS FUNERAL HOME, INC., was a licensed funeral establishment conducting business in Daytona Beach, Florida. Alexander Wynn was the full time funeral director in charge of the funeral establishment. 9. An investigation of R.J. GAINOUS FUNERAL HOME, INC. was conducted on or about June, 2008 pursuant to a consumer complaint. | COUNT ONE 10. The above General Allegations are hereby realleged and fully incorporated herein by , reference. 11. At all times pertinent to the dates and occurrences referred to herein, Alexander Wynn was the funeral director in charge at the funeral home. 12, The investigation found that R.J. GAINOUS FUNERAL HOME, INC. contracted with LBJ Cemetery Services to inter the body of Mrs. Doris J. Oglesby, formerly of Daytona Beach, Florida. R.J. GAINOUS FUNERAL HOME, INC. employed LBJ Cemetery Services to open and close the gravesite and inter the casket into a burial vault. 13. The casket of Mrs. Oglesby was too large to properly fit into the burial vault. The employees of LBJ Cemetery Services attempted to force the casket into the vault. In doing so, they broke off the handles and otherwise damaged the casket. The burial vault was also significantly damaged. The burial vault could not be and was not properly closed due to the oversized casket being forced into it and the subsequent damage. The employees of LBJ Cemetery Services then failed to cover the vault with at least 12 inches of soil. Asa result, Mrs. Oglesby’s casket became visible and exposed io the outside environment. RJ. GAINOUS FUNERAL HOME, INC. was aware or should have been aware of these facts. 14. As a result of these actions, Mrs. Oglesby’s grave had to be reopened, the casket removed from the vault, and her body placed into a new casket and re-interred. 15. Alexander Wynn, as funeral director in charge, acknowledged that the casket had not been properly placed into the vault and properly interred. 16. RJ. GAINOUS FUNERAL HOME. INC. failed to place an identification tag on the casket at the time of the original internment. 17. RJ. GAINOUS FUNERAL HOME, INC. was negligent in its performance of the above mentioned contract by not properly overseeing the actions and job performance of LBJ Cemetery Services and not supervising the interment of Mrs. Oglesby. IT IS THEREFORE CHARGED that R.J. GAINOUS FUNERAL HOME, INC. has violated or is accountable under the following provisions of the Act which constitute grounds for discipline: (a) Committing fraud, deceit, negligence, incompetency or misconduct in the practice of any of the activities regulated under this chapter [Section 497.152(1)(b), Florida Statutes]; (b) Failing without reasonable justification to timely honor contracts entered for funeral or burial merchandise or services. [Section 497.152(13), Florida Statutes]; (c) Failing to place an identification tag on the outside of the burial vault or casket. [Section 497.171, Florida Statutes]; (d) __ Violating any provision of the Act. [Section 497.152(1)(a), Florida Statutes]; (e) Failure to cover the interment with no less than 12 inches of soil. [Rule 69K-6.008, Florida Administrative Code]. WHEREFORE, the Department respectfully requests that the Board enter an Order imposing one of more of the following penalties: revocation or suspension of licensee’s license; imposition of an administrative fine not to exceed five thousand dollars ($5,000) for each count or separate offense; issuance of a written reprimand; placement of licensee on probation; assessment of costs associated - with investigation and prosecution; requiring licensee to make restitution; imposition of any or all penalties delineated within Section 497.153(5), Florida Statutes; and any other relief that the Board is authorized to impose pursuant to Chapter 497, Florida Statutes, and the rules promulgated thereunder. NOTICE OF RIGHTS You have the right to request a proceeding to contest this action by the Florida Department of Financial Services, Board of Funeral, Cemetery and Consumer Services ("Board") pursuant to sections 120.569 and 120.57, Florida Statutes, and rule 28-106, Florida Administrative Code. The proceeding request must be in writing, signed by you, and must be filed with the Florida Department of Financial Services (“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 acting as Agency Clerk, at the Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. Your written response must be received by the Department 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 WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS NOTICE WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF SUSPENSION OR REVOCATION WILL BE ENTERED AGAINST YOU. If you request a proceeding, you must provide information that complies with the requirements of rule 28-106.2015, Florida Administrative Code. As noted above, completion of the attached Election of Proceeding form conforms to these requirements. Specifically, your response must contain: (a) The name, address, and telephone number, and facsimile number (if any) of the respondent (for the purpose of requesting a hearing in this matter, you are the "respondent"). (b) The name, address, telephone number, facsimile number of the attorney or qualified representative of the respondent (if any) upon whom service of pleadings and other papers shall be made. (c) A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. (d) A statement of when the respondent received notice of the administrative complaint. (e) A statement including the file number of the administrative complaint. 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. You may submit oral or written evidence in opposition to the action taken by the Board or a written statement challenging the grounds upon which the Board 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. However, if you dispute material facts which are the basis for the Board’s action, you must request an adversarial proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. These proceedings are held before a State Administrative Law Judge of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request that the hearing be conducted in Tallahassee, Florida. 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. DATED and SIGNED this 4" day of November , 2008 TAMMY ak ON Deputy Chief Financial Officer CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint has been furnished by Certified Mail to: R. J. GAINOUS FUNERAL HOME, INC., 804 Dr. Mary McLeod Bethune Blvd., Daytona Beach, FL 32114 this 14" day of November _, 2008. ‘ Flotida Department of Financial Services Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124

Docket for Case No: 08-006334