FILED Bd of Funeral, Cemetery & Consumer Svcs OATE:____ 8 / A= 2 O10 sitials of DECCS staffer:____ D7 s, REPIESENTING ALEX SINK: CHIEF FINANCIAL OFFICER STATE OF FLORIDA. IN THE MATTER OF: LAVELLE BING CASE NO.: 109795-10-FC (License Number: F043718), / ADMINISTRATIVE COMPLAINT TO: LAVELLE BING 2311 17" Avenue West Bradenton, Florida 34205 You, LAVELLE BING, are hereby notified that the Division of Funeral, Cemetery and Consumer Services has directed an investigation in connection with your license to operate as a Funeral Director & Embalmer. The allegations set forth below are based on the aforementioned investigation. GENERAL ALLEGATIONS 1. The Board of Funeral, Cemetery, and Consumer Services (“Board”), created within the Division of Funeral, Cemetery and Consumer Services (“Division”), and the Department of Financial Services (“Department”), have jurisdiction over your licensure as a Funeral Establishment and the subject matter of this proceeding, pursuant to the provisions of Section 20.121, and Chapter 497, F lorida Statutes, the Florida Funeral, Cemetery, and Consumer Services Act (“Act”). 2. The Board has the authority to determine through probable cause panels whether Filed November 19, 2010 3:15 PM Division of Administrative Hearings 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 Sections 497.103(1)(v) and 497.153(3), Florida Statutes. 3. A probable cause panel on August 2, 2010 found probable cause to charge you with violations of Chapter 497, Florida Statutes, and the Department’s administrative rules, and directed the Department to prosecute the matter. 4. On or about August 31, 2001, Work & Son — Memorial Services, Inc. (“MEMORIAL”) was incorporated as a Florida Profit Corporation. 5. Cliff Work (“Mr. Work”) has been a Director of Memorial since August 31, 2001. 6. Before February of 2002, Alderwoods (Partner), Inc. (previously known as Loewen Group Inc.) owned Bradenton Funeral Home. 7. On or about February 26, 2002, Memorial became the owner of Bradenton Funeral Home and assumed Alderwoods’ liabilities, 8. On or about February 28, 2002, Memorial became licensed as a Funeral Establishment, license number FH 2631 (which later became license number F041688), pursuant to the provisions of Chapter 470, Florida Statutes (2002), which became part of Chapter 497, Florida Statutes (2005). 9. Since February 28, 2002, Memorial has transacted business under the unregistered fictitious name Bradenton Funeral Home. 10. Since on or about November 16, 2004, you, LAVELLE BING, have been licensed as a Funeral Director & Embalmer, license number F043718, pursuant to the provisions of Chapter 497, Florida Statutes. 11. You, LAVELLE BING, are the Funeral Director in Charge of Bradenton Funeral Home. 12. The Act provides for the following: 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. The full-time funeral director in charge must have an active license and may not be the full-time funeral director in charge of any other funeral establishment or of any other direct disposal establishment. [Section 497.380(7), Florida Statutes (2009)] 13. An individual designated as the funeral director in charge of a funeral establishment is responsible for making sure that the establishment and all persons employed in the establishment comply with all applicable laws and rules of the department, as required by Rule 69K-21.007(3), Florida Administrative Code. 14, At all times relevant to the allegations of this Administrative Complaint, you, LAVELLE BING, did not attempt to prevent or mitigate any of the violations until after an investigator from the Division approached you. 15.. Memorial operates Bradenton Funeral Home as a funeral establishment located at 5827 14" Street West, Bradenton, FL 34207, under license number F041688. COUNT I 16. The above General Allegations are hereby re-alleged and fully incorporated herein by reference. 17. On or about September 25, 1995, Ms. Jane Schuchmann entered into a preneed contract with Bradenton Funeral Home for the purchase and sale of funeral services and funeral merchandise. The services portion of the contract totaled $1,700, and the merchandise portion of the contract totaled $2,500. 18. On or about March 5, 2002, Ms. Schuchmann cancelled the contract and received a full refund of the services portion of the contract from Alderwoods, the previous owner of Bradenton Funeral Home. 19. Memorial is responsible for refunding the remaining portions of the contract. 20. On or about July 22, 2008, Mr. Ned Painter filed a complaint (Department Complaint number SR1-507052154) on behalf of Ms. Schuchmann, his cousin, requesting a refund for the merchandise portion of the contract. 21. You, LAVELLE BING, as Funeral Director in Charge of Memorial, have failed to ensure that Ms. Schuchmann received a refund her contract, despite receiving written notice of cancellation. IT IS THEREFORE CHARGED that you, LAVELLE BING, have violated or are accountable under one or more of the following provisions of the Florida Statutes and/or the Florida Administrative Code, which constitutes sufficient grounds for the suspension or revocation of your license as a Cemetery in this state: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense to violate any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. (b) Section 497.152(1)(b), Florida Statutes, which provides that it is a violation to commit fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. (c) Section 497,459(2)(a), Florida Statutes, which provides that a purchaser, by providing written notice to the preneed licensee, may cancel the services, facilities, and cash advance items portions of a preneed contract at any time, and shall be entitled to a full refund of ' the purchase price allocable to such items. Any accumulated earnings allocable to such preneed contract shall be paid to the preneed licensee upon such cancellation. (d) Section 497.152(13)(b), Florida Statutes, which provides that it is a violation to fail to honor preneed contract cancellation requests and make refunds as required by the chapter. (e) Section 497.152(14)(b), Florida Statutes, which provides that it is a violation for a licensee to a make a general business practice of failing to promptly issue refunds for cancelled preneed contracts. COUNT II 22. The above paragraphs, one through twenty-one, are hereby re-alleged and fully incorporated herein by reference. ) 23. On or about February 17, 1987, Mr. Joseph Roberts and Mrs. Jean Roberts (“the Roberts’”) each entered into a preneed contract with Bradenton Funeral Home for the purchase and sale of funeral services and funeral merchandise, Services and accommodations under the contracts totaled $2,608, and merchandise under the contracts totaled $3,284. 24. The contract terms state that the purchaser may cancel the contract at any time prior to the beneficiary’s death, and the purchaser may receive a 100% refund of all monies paid to Bradenton Funeral Home. 25. On or about July 15, 2008, the Roberts’, through their representative Mr. William Hutchings, cancelled and requested full refunds of their contracts via written notification to Bradenton Funeral Home. 26. You, LAVELLE BING, through Mr. Work, did not respond to the cancellation and request for refunds within 30 days of receiving the notice, Florida Statutes 497.459(6)(d). 27. On or about October 3, 2008, Mr. Hutchings, on behalf of the Roberts’, filed a complaint (Department Complaint number SR1-542707631) requesting “any assistance [the Department] may provide in assisting [the Roberts’] with obtaining a refund of their monies they have paid to Bradenton Funeral Home.” 28. On or about November 10, 2008, Memorial refunded the non-merchandise portion of the contracts in an amount totaling $2,608. Memorial did not refund the merchandise portion of the contracts owed to the Roberts’, which totals $3,284. 29. Memorial has not refunded the merchandise portion of the contract despite receiving written notice of cancellation. IT IS THEREFORE CHARGED that you, LAVELLE BING, have violated or are accountable under one or more of the following provisions of the Florida Statutes and/or the Florida Administrative Code, which constitutes sufficient grounds for the suspension or revocation of your license as a Cemetery in this state: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense to violate any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. (b) Section 497.152(1)(b), Florida Statutes, which provides that it is a violation to commit fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. (c) Section 497,152(13)(b), Florida Statutes, which provides that it is a violation to fail to honor preneed contract cancellation requests and make refunds as required by the chapter. (d) Section 497.459(2)(a), Florida Statutes, which provides that a purchaser, by providing written notice to the preneed licensee, may cancel the services, facilities, and cash advance items portions of a preneed contract at any time, and shall be entitled to a full refund of the purchase price allocable to such items. Any accumulated earnings allocable to such preneed contract shall be paid to the preneed licensee upon such cancellation. (ec) Section 497,152(14)(b), Florida Statutes, which provides that it is a violation for a licensee to a make a general business practice of failing to promptly issue refunds for cancelled preneed contracts. COUNT III 30. The above paragraphs one through thirty are hereby re-alleged and fully incorporated herein by reference. 31. On or about November 16, 1994 Ms. Dorothy (Hastings) Wright entered into a preneed contract with Bradenton Funeral Home for the purchase and sale of funeral services and funeral merchandise. Services and cash advance items under the contract totaled $1,750, and merchandise under the contract totaled $2,840. 32. The contract terms state that the purchaser may cancel the contract at any time prior to the beneficiary’s death, and the purchaser shall be entitled to a full refund of the services, facilities, and cash advances portions of the contract. However, the contract terms also provide that the merchandise portion of the contract is non-refundable. 33. On or about August 7, 2008, Ms. Wright cancelled and requested a full refund of the contract via written notification to Bradenton Funeral Home. 34. You, LAVELLE BING, through Mr. Work, did not respond to the cancellation and refund request within 30 days of receiving the request. 35. You, LAVELLE BING, through Mr. Work, did not respond to subsequent requests for cancellation and refund, which were made September 9, October 3, and October 6 of 2008. 36. On or about October 15, 2008, Ms. Wright filed a complaint (Department Complaint number SR1-546596333) requesting the Department’s assistance in obtaining the refund due to Ms. Wright. 37. On or about November 10, 2008, Memorial refunded the non-merchandise portions of the contract in an amount totaling $1,750. 38. You, LAVELLE BING, as Funeral Director in Charge of Bradenton Funeral Home, failed to properly refund Ms. Wright the purchase price of her contract. IT IS THEREFORE CHARGED that you, LAVELLE BING, have violated or are accountable under one or more of the following provisions of the Florida Statutes and/or the Florida Administrative Code, which constitutes sufficient grounds for the suspension or revocation of your license as a Cemetery in this state: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense to violate any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. (b) Section 497.152(1)(b), Florida Statutes, which provides that it is a violation to commit fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. (c) Section 497.152(13)(b), Florida Statutes, which provides that it is a violation to fail to honor preneed contract cancellation requests and make refunds as required by the chapter. (d) Section 497.459(2)(a), Florida Statutes, which provides that a purchaser, by providing written notice to the preneed licensee, may cancel the services, facilities, and cash advance items portions of a preneed contract at any time, and shall be entitled to a full refund of the purchase price allocable to such items. Any accumulated earnings allocable to such preneed contract shall be paid to the preneed licensee upon such cancellation. (e) Section 497.152(14)(b), Florida Statutes, which provides that it is a violation for a licensee to a make a general business practice of failing to promptly issue refunds for cancelled preneed contracts. | COUNT IV 39. The above paragraphs one through thirty-eight are hereby re-alleged and fully incorporated herein by reference. 40. On or about April 3, 2000, Ms. Judy (Mitchell) Vergason entered into a preneed contract with Bradenton Funeral Home for the purchase and sale of funeral services and cash advance items. Services and cash advance items under the contract totaled $800.00. 41. The contract terms state that the purchaser may cancel the contract at any time prior to the beneficiary’s death, and the purchaser shall be entitled to a full refund of the services, facilities, and cash advances portions of the contract. 42. © On or about May 6, 2008, Ms. Vergason cancelled and requested a full refund of the contract via written notification to Bradenton Funeral Home. 43. You, LAVELLE BING, as Funeral Director in Charge for Bradenton Funeral Home, failed to ensure that Ms. Vergason’s request was responded to and failed to ensure that she received a timely refund. 44, On or about July 9, 2009, Ms. Vergason made a subsequent cancellation and refund request via certified mail. 45, On or about July 15, 2009, you, LAVELLE BING, signed the certified mail receipt indicating receipt of Ms. Vergason’s correspondence. 46. Once again, you, LAVELLE BING, through Mr. Work, as Funeral Director in Charge for Bradenton Funeral Home, failed to ensure a response to Ms. Vergason’s request. 47, On or about July 22, 2009, Ms. Vergason filed a complaint (Department Complaint number SR1-612036493) requesting the Department’s assistance in obtaining the refund due to Ms. Vergason. 48. On or about October 14, 2009, Memorial refunded the contract in an amount totaling $800.00. IT IS THEREFORE CHARGED that you, LAVELLE BING, have violated or are accountable under one or more of the following provisions of the Florida Statutes and/ot the Florida Administrative Code, which constitutes sufficient grounds for the suspension or revocation of your license as a Cemetery in this state: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense to violate any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. (b) Section 497.152(1)(b), Florida Statutes, which provides that it is a violation to commit fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. (c) Section 497.152(13)(b), Florida Statutes, which provides that it is a violation to fail to honor prenced contract cancellation requests and make refunds as required by the chapter. (d) Section 497.459(2)(a), Florida Statutes, which provides that a purchaser, by providing written notice to the preneed licensee, may cancel the services, facilities, and cash advance items portions of a preneed contract at any time, and shall be entitled to a full refund of the purchase price allocable to such items. Any accumulated earnings allocable to such preneed contract shall be paid to the preneed licensee upon such cancellation. (e) Section 497.152(14)(b), Florida Statutes, which provides that it is a violation for a licensee to a make a general business practice of failing to promptly issue refunds for cancelled preneed contracts. WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties on you, LAVELLE BING, revocation or suspension of 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 on probation; assessment of costs associated with investigation and prosecution; requiring you, LAVELLE BING, to make restitution; and/or such other penalty or condition as is authorized under section 497.153(5), Florida Statutes. NOTICE OF RIGHTS You have the right to request a proceeding to contest this action by the Board pursuant to Sections 120.569 and 120.57, Florida Statutes, and Rulé 28-106, 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 DFS Agency Clerk, Julie Jones, Florida Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0390. 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 to 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 Do GLASSHROP SHIRE, Executive Director, Florida Board of Funeral, Cemetery, and Consumer Services STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES IN THE MATTER OF: LAVELLE BING CASE NO.: 109795-10-FC (License Number: F043718), ELECTION OF PROCEEDING I have received and have read the Administrative Complaint filed by the Florida Department of Financial Services ("Department") against me, including the Notice of Rights contained therein, and I understand my options. I am requesting disposition of this matter as indicated below. (CHOOSE ONE) 1] 3.01 I do not dispute any of the Department’s factual allegations and I do not desire a hearing. I understand that by waiving my tight to a hearing, the Board of Funeral, Cemetery and Consumer Services (“Board”) may enter a final order that adopts the Administrative Complaint and imposes the sanctions sought, including suspending or revoking my license(s) as may be appropriate, I do not dispute any of the Department's factual allegations and I hereby elect a proceeding to be conducted in accordance with Sections 120.57(2) and 497.153(4)(b), Florida Statutes. In this regard, I desire to: {] Submit a written statement and documentary evidence to the Board in lieu of a hearing; or {] Personally attend a hearing conducted by the Board at the location of a regularly scheduled Board meeting. I do dispute one or more of the Department's factual allegations. I hereby request a hearing. pursuant to Section 120,57(1), Florida Statutes, to be held before the Division of Administrative Hearings. I have attached to this election form the information required by Rule 28-106.2015, Florida Administrative Code, as specified in subparagraph (c) of the Notice of Rights, Specifically, I have identified the disputed issues of material fact in the response attached hereto, TO PRESERVE YOUR RIGHT TO A HEARING, YOU MUST FILE YOUR RESPONSE WITH THE DEPARTMENT OF FINANCIAL SERVICES WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M. ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT, The address for filing is: DFS Agency Clerk, Julie Jones, Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. Signature Print Name Date: Address: Date Administrative Complaint Received: If you are represented by an attorney or qualified Phone No.: representative, please attach to this election form his or her name, address, telephone and fax numbers Fax No.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and the following ELECTION OF PROCEEDING has been furnished to: LAVELLE BING 5827 14" Street West Bradenton, Florida 34207 And LAVELLE BING c/o WENDY R. WIENER, ESQ., as Registered Agent Gardner, Bist, Wiener, Wadsworth & Bowden, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 by Certified U.S. Mail, return receipt requested, restricted delivery, this /2™ day of August, 2010. Za dq. Florida Department of Financial Services Division of Legal Services 200 East Gaines St. 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4230 Florida Bar Number 0079063

Docket for Case No: 10-010308PL