FI.LE_D

SEP 112009

IN THE MATIER OF:

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CLAUDE EDWARD HOLMES, JR.

CA;Sli.NO. 105280-09- FC

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ADMINISTRATIVE COMPLAINT To: CLAUDE EDWARD HOLMES, JR. 1 PL

c/o Christopher M. Chestnut, Esq. J \ - J }

The Chestnut Firm, LLC

500 East University Avenue, Suite C Gainesville, Florida 32601

You, CLAUDE EDWARD HOLMES, JR., License No. F044012, are hereby notified that the Department of Financial Services ("Department") has conducted an investigation in connection with your license to practice as a Funeral Director and Embalmer. Based upon the investigation, it is alleged:

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, have jurisdiction over CLAUDE EDWARD HOLMES, JR.'s licensure as a Funeral Director and Embalmer 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 ("Act").

2. The Board has the authority to determine through probable cause panels whether there is p obable 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 19, 2009 found probable cause to charge you, CLAUDE EDWARD HOLMES, JR., with violations of Chapter 497, Florida Statutes, and the Department's administrative rules and directed the Department to prosecute based on Division investigation SRI-605916533.

4. At all times relevant to the allegations of this Administrative Complaint, you, CLAUDE EDWARD HOLMES, JR., were licensed as a Funeral Director artd Embalmer pursuant to the provisions of Chapter 497, Florida Statutes and the Rules promulgated thereunder.

5. At all times relevant to the allegations of this Administrative Complaint, you, CLAUDE EDWARD HOLMES, JR., were an owner of Holmes Funeral Directors, Inc., a licensed Funeral Establishment (License No. F0041651) located at 601 West Johnson Avenue, Haines City, Florida 33844.

6. At all times relevant" to the allegations of this Administrative Complaint, you, CLAUDE EDWARD HOLMES, JR., were .employed as a funeral director and embalmer by Holmes Funeral Directors, Inc.

   COUNTI

   
   

7. The above General Allegations are hereby realleged and fully incorporated herein by reference.

8. On June 15, 2009, a Polk County maintenance crew working at Oakland Cemetery in Haines City, Florida discovered a suspicious black bag that was partially buried between two gravesites. A member of the crew reported the finding to law enforcement authorities.

9. Prior to the arrival of law enforcement, a crew member pulied the bag out of the ground and found inside a red "biohazard" bag, from which a foul odor emanated.

10. The Polk County Sheriff's Office arrived at the scene and found two additional black bags, one of which was a body bag, and two containers of formaldehyde. The bags contained

    
    

    information for two deceased . people, for whom Holmes Funeral Directors, Inc. had provided funeral services. The remains contained in the bags were unrelated to either of the graves between which the bags were found.

    1L The information identified one of the deceased as R.D., who died on June 7, 2009, and was buried on June 13, 2009.

    1. Upon further inspection of the bags, law enforcement personnel discovered that they contained human organs, or viscera, which had not been properly preserved and were decomposing.

    2. According to records maintained by Holmes Funeral Directors, Inc. and filed with the·Department, Mr. Holmes embalmed the body ofR.D. on June 9, 2009.

    3. On June 15, 2009, Polle County detectives met with you, CLAUDE EDWARD HOLMES, JR., at Holmes Funeral Directors, Inc. and questioned you about their discovery. You, CLAUDE EDWARD HOLMES, JR., admitted that you disposed of the viscera from the body of

       R.D. "last week" because it was already decomposing when the body was received from the· medical examiner.

    4. Additionally, you, CLAUDE EDWARD HOLMES, JR., stated that the already- decomposing viscera could not be buried along with the body because placing the viscera in the casket would cause a foul odor to permeate the funeral home.

    5. You, CLAUDE EDWARD HOLMES, JR., admitted to law enforcement authorities that you had previously dumped viscera in the Oakland Cemetery approximately ten to fifteen times since 2000.

    6. You, CLAUDE EDWARD HOLMES, JR., refused to assist law enforcement authorities in discovering and identifying the other remains you had placed in Oakland Cemetery.

    7. Industry standards provide that viscera, even when already decomposing can and should be preserved in such a way that they can be returned to the body for final preparation prior to

       
       

       
       

       burial. By your own admission, you, CLAUDE EDWARD HOLMES, were apparently unaware of these standards, as you indicated that you knew of no way to preserve the viscera to be buried with R.D.'s body.

    8. You, CLAUDE EDWARD HOLMES, were arrested on felony charges ofDwnping

Raw Human Waste for Commercial Purposes by the Polk County Sheriff's Office. ·

IT IS THEREFORE CHARGED that you, CLAUDE EDWARD HOLMES, JR., have

violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your lic se as a Funeral Director and Embalmer:

1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

2. Committing :fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(l)(b), Florida Statutes]

3. Knowingly concealing infonnation relative to violations of this chapter. [Section 497.152(4)(e), Florida Statutes]

4. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

5. Violation of any state Jaw or rule or any municipal or county ordinance or regulation affecting the handling, custody, care, or transportation of dead human bodies. [Section 497.152(8)(a), Florida Statutes]

(t) A dead human body may not be held in any place or in transit over 24 hours after death or pending final disposition unless the body is maintained under refrigeration at a

temperature of 40 degrees Fahrenheit or below or is embalmed or otherwise preserved in a manner approved by the licensing authority in accordance with the provisions of this chapter. [Section497.386(2), Florida Statutes]

(g) The licensing authority shall establish by rule the minimal standards of acceptable and prevailing practices of the handling and storing of dead human bodies, provided that all human remains transported or stored must be completely covered and at all times treated with dignity and respect. [Section 497.386(4), Florida Statutes]

WHEREFORE, the Petitioner respectfully request that the Board of Funeral, Cemetery and

Consumer Services to enter an order imposing one or more of the following penalties: revocation or

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suspension of CLAUDE EDWARD HOLMES, JR.'s funeral director and embalmer license,

restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of CLAUDE EDWARD HOLMES, JR. on probation, corrective action, refund of fees billed or collected, remedi l education and/or any other relief that the Board deems appropriate under the provisions of subsection 497.153(5), Florida Statutes, and Fla. Admin. Code R. 6108-30 as re­ enacted by Fla. Admin. Code R. 69K-30.

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 Tracey Beal, Agency Clerk, at the 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 ADMINISTRATIVE COMPLAINT 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:

1. The name, address,. and telephone number, and facsimile number (if any) of

   Respondent (for the J?Urpose of requesting a hearing in this matter, you are the "Respondent").

2. The name, address, telephone number, facsimile number of the attorney or qualified representative of CLAUDE EDWARD HOLMES, JR. (if any) upon whom service of pleadings and other papers shall be made.

3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate.

4. A statement of when the Respondent received notice of the administrative complaint.

5. 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. In this regard, 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. AlJ 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 renewecJ 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 yo

Department.

til the response has been received by the

DATED and SIGNED this //            ;day o_'=....- L.LJ.........,. --..._., 2009.

TAMMYTESON

Deputy Chief Financial Officer

CERTIFICATE OF SERVICE

· I·HEREBY CERTIFY that a copy o foregoing - . INIST TIV COMPLAINT has been furnished by U.S. Certined Mail this day of """""b£.4:iw...::&.& 6',.; -'' 2009, to: Christopher M. Chestnut, Esq., The Chestnut Firm, LLC, 500 t University Avenue, Suite C, Gainesville, Florida 32601.

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_Robyn Blank Jackson

Asst. General Counsel Fla. Bar. No.: 0028832

Florida Department of Financial Services 200 E. Gaines St.

Tallahassee, FL 32399-4247

Phone (850) 413-4269

Fax: (850) 487-4907

Counsel for the Department

STATE OF FLORIDA

DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES

CLAUDE EDWARD HOLMES, JR.

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· CASE NO. 105280-09- FC

ELECTION OF PROCEEDING FORM

I have received and have read the attached Administrative Complaint. I have also read the Notice of Rights contained therein, and I understand my options. I am requesting disposition of this matter as indicated below. (CHOOSE ONE)

l. [ ] I do not dispute any of the Department's factual allegations and I do not desire a hearing. I

understand that by waiving my right to a hearing, the Department's denial shall be final. .

1. I do not dispute any of the Department's factual allegations and I hereby elect a proceeding to be conducted in accordance with section 120.57(2), Florida Statutes. I have attached to this election form the information required by Rule 28-106, Florida Administrative Code, as specified in subparagraphs (a) through (g) of the Notice of Rights. The specific type of proceeding I desire is to (CHOOSE ONE):

   
   

   [ ] Submit a written statement and documentary evidence in lieu of a hearing; or

   
   

   [ ] Personally attend a hearing conducted by a department hearing officer in Tallahassee; or

   
   

   [ ] Attend that same hearing by way of a telephone conference call.

   
   

2. [ ] 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, Florida Administrative Code, as specified in subparagraphs (a) through (g) of the Notice of Rights. Specifically, I have identified the disputed issues of material fact.

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 NOTICE. THE RESPONSE MUST BB RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M. ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE NOTICE.

The address for filing is: Tracey Beal, Agency Clerk, Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333.

Signature

Date:-----------

Print Name

Address:                         _

Phone No.:                        Fax No.:                       _

Docket for Case No: 11-001186PL