FILED

,u,PnEsENTING Bd of Funeral, Cemetery &Consumer SvQI

ALEXSINK DATB: G"-,-.;i..oto

CHII':F.FINANClALOFFICERinitialsoCDFCCSstaifcr, t>:11

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S1 ATE OF FLORIDA

IN THE MATTER OF: \ l7

LANDMARK FUNERAL HOME, INC. CASE NO.: 108626-10-FC

(License Number: F055287)

                                                                   I

ADMINISTRATIVE COMPLAINT

TO: LANDMARK FUNERAL HOME, INC.

c/o Mr. Albert T. Gimbel, Esq. Messer, Caparello, & Self, P.A. 2618 Centennial Place

Tallahassee, Florida 32317

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You, LANDMARK FUNERAL HOME, INC., are hereby notified that the Department of Financial Services ("Department") has conducted an investigation in connection with your license to operate as a Funeral Establishment. 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 your 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 ("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 Sections 497.103(1)(v) and 497.153(3), Florida Statutes.

   
   

   
   

3. A probable cause panel on April 6, 2010, found probable cause to charge you, LANDMARK FUNERAL HOME, INC., with violations of Chapter 497, Florida Statutes, and the Department's administrative rules, and directed the Department to prosecute.

4. At all times relevant to the allegations of this Administrative Complaint, you, LANDMARK FUNERAL HOME, INC., were licensed as a Funeral Establishment, license number F055287, 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, except · as otherwise stated herein, you, LANDMARK FUNERAL HOME, INC., were operating as a Funeral Establishment at 4200 Hollywood Boulevard in Hollywood, Florida.

6. Prior to August 27, 2009, Jeffrey A. Brown, a licensed funeral director and embalmer (License No. F042732) was the Funeral Director in Charge ("FDIC") of LANDMARK FUNERAL HOME.

7. On August 27, 2009, Kevin Rieth ("Mr. Rieth"), a licensed funeral director and embalmer (License No. F028016), became the FDIC of LANDMARK FUNERAL HOME, INC.

8. The Act provides the following:

   
   

   Each licensed funeral establislunent 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 (2008).

   
   

9. 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 (2009).

10. At no time relevant to the allegations of this Administrative Complaint did you, LANDMARK FUNERAL HOME, INC., possess a valid preneed license.

11. The Panciera family has owned or operated funeral establishments m the Hollywood area for at least 30 years. Consequently, the Panciera name is widely known and associated with the death industry in Hollywood.

12. Boyd-Panciera Family Funeral Care, Inc. ("Boyd-Panciera") is a licensed Funeral Establishment in the same geographic region as LANDMARK FUNERAL HOME, INC. Boyd-Panciera is licensed to sell preneed funeral services.

13. Kevin Rieth, FDIC of LANDMARK FUNERAL HOME, INC., is married to Valerie Panciera-Rieth, who is the daughter of Irving R. Panciera and the sister of Mark Panciera.

14. Mr. Irving R. Panciera currently holds an inactive Funeral Director/Embalmer

    
    

    license.

    
    

15. Ms. Valerie Panciera-Rieth currently holds a valid Preneed Sales Agent license, but does not hold any valid appointments.

16. Mr. Mark Panciera is a director of Boyd-Panciera and currently holds a valid Funeral Director/Embalmer license.

17. Section 497.381, Florida Statutes, requires the Department, as licensing authority, to adopt rules regulating solicitation of goods or services by licensees. Specifically, Section 497.381(2), Florida Statutes, states, "The licensing authority shall regulate such solicitation to protect the public from solicitation which is intimidating, overreaching,

    
    

    fraudulent, or misleading; which utilizes undue influence; or which takes undue advantage of a person's ignorance or emotional vulnerability."

    COUNT!

    
    

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

19. On July 24, 2009, the Division received a complaint and supporting documentation alleging that you, LANDMARK FUNERAL HOME, INC., were advertising for preneed services. The Division opened an investigation into the complaint.

20. The supporting documentation, as well as documents obtained during the Division's investigation, include the following:

    1. An advertisement in a leaflet for Little Flower Catholic Church of Hollywood, Florida, stating that you, LANDMARK FUNERAL HOME, INC., provide "pre- arrangements."

    2. A member profile from the Greater Hollywood Chamber of Commerce website introducing you, LANDMARK FUNERAL HOME, INC., and stating that "pre­ arrangements" were among your services.

    3. An advertisement for you, LANDMARK FUNERAL HOME, INC., from the Sun Sentinel stating that "[a]ll funeral pre-arrangements are transferable."

    4. An advertisement for you, LANDMARK FUNERAL HOME, INC., from the September-October-November 2009 edition of Hollywood Hills Today stating that "[a]ll funeral pre-arrangements are transferable."

    5. An advertisement for you, LANDMARK FUNERAL HOME, INC., from the Hollywood Gazette stating that "pre-arrangements" were among your services and stating that

       
       

       "[a]ll funeral pre-arrangements are transferable."

       
       

       (t) An advertisement for you, LANDMARK FUNERAL HOME, INC., from www.CatholicWeb.com stating that "pre-arrangements" were among your services and stating that "[a]ll funeral pre-arrangements are transferable."

       1. A business card for Irving R. Panci ra, consultant for you, LANDMARK FUNERAL HOME, INC., offering "pre-arrangements."

       2. A business card for Kevin S. Rieth, FDIC of LANDMARK FUNERAL HOME, INC., offering "pre-arrangements."

21. Many of the advertisements listed in paragraph 20 also contain a disclaimer stating that you, LANDMARK FUNERAL HOME, INC. are "not affiliated with Boyd- Panciera."

22. You, LANDMARK FUNERAL HOME, INC., sent mailings to clients of Boyd- Panciera, which specified that "[a]ll funeral pre-arrangements are transferable" and that you, LANDMARK FUNERAL HOME, could provide "pre-arrangements."

23. Consumers who had pre-need contracts with Boyd-Panciera were led to believe by the advertisements that you, LANDMARK FUNERAL HOME, INC., could provide preneed services.

24. You, LANDMARK FUNERAL HOME, INC., knew or should have known that the advertisements listed in paragraph 20 constituted advertisements for preneed services, which LANDMARK FUNERAL HOME, INC. was not licensed to provide.

25. Alternatively, you, LANDMARK FUNERAL HOME, INC., knew or should have known that the advertisements listed in paragraph 20 could lead a reasonable person to believe that you, LANDMARK FUNERAL HOME, INC., within the context of your

    
    

    
    

    competition with Boyd-Panciera, provided preneed services.

    
    

    IT IS THEREFORE CHARGED that you, LANDMARK FUNERAL HOME, INC.,

    
    

    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 license as a Funeral Establishment:

    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(1)(b), Florida Statutes]

    3. Practicing or offering to practice beyond the scope permitted by this chapter for the type of licensure held or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform. [Section 497.152(5)(a), Florida Statutes]

    4. Advertising goods and services in a manner that is fraudulent, deceptive, or misleading in form or content. [Section 497.152(9)(e), Florida Statutes]

    5. Directly or indirectly making any deceptive, misleading, or untrue representations, whether oral or written, or employing any trick, scheme, or artifice, in or related to the practice of a profession or occupation regulated under this chapter, including in the advertising or sale of any merchandise or services related to the practice of the profession or occupation. [Section 497.152(9)(f), Florida Statutes]

    6. No person or entity shall engage in any activity for which a license is required

       
       

       under this chapter, without holding such licensure m good standing. [Section 497.157(1), Florida Statutes]

    7. No person may act as an agent for a preneed licensee with respect to preneed contracts unless such person is licensed as a preneed sales agent pursuant to part IV of this chapter or is a licensed funeral director acting as a preneed sales agent. [Section 497.166(1), Florida Statutes]

    8. No person, including any cemetery, exempt under s. 497.260, may sell, advertise to sell, or make an arrangement for a preneed contract without first having a valid preneed license. [Section 497.452(1)(a), Florida Statutes]

    9. No licensee or registrant shall disseminate or cause dissemination of any advertisement or advertising which is in anyway false, fraudulent, deceptive and mis.leading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it:

       1. Contains a misrepresentation of facts; or

       2. Has the capacity or tendency to mislead or deceive because in its content or in the context in which it is presented it makes only a partial disclosure of relevant facts; or

       3. Has the capacity or tendency to create false or unjustified expectations; or

       4. Contains false, fraudulent, deceptive or misleading representations relating to the quality or quantity of the services offered; or

       5. Contains any representations or claims which the licensee referred to in the

          advertising fails to perform; or

       6. Contains any other representation, statement or claim which has the capacity or tendency to mislead or deceive. [Rule 69K-29.001(2), Florida Administrative Code]

    
    

    COUNT II

    
    

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

27. On April 8, 2009, meeting of the Board was held in Orlando, Florida, at which

    
    

    Jonathan Shaw ("Mr. Shaw"), owner of LANDMARK FUNERAL HOME, INC., made representations to the Board regarding the proposed activities of you, LANDMARK FUNERAL HOME, INC.

28. At the time of the April 8, 2009, Board meeting, you, LANDMARK FUNERAL HOME, INC. were unlicensed, having filed an application for a funeral establishment license.

29. Mr. Shaw, in support of the pending application for you, LANDMARK FUNERAL HOME, INC., represented to the Board that Valerie Panciera-Rieth would have nothing to do with the establishment, should licensure be granted.

30. Additionally, Mr. Shaw, in support of the pending application for you, LANDMARK FUNERAL HOME, INC., represented to the Board that Mr. Irving R. Panciera's involvement in the establishment would be limited to his duties as landlord, as he owned the proposed establishment location.

31. Based in part on the representations contained in paragraphs 29 and 30, the Board granted you, LANDMARK FUNERAL HOME, INC. a funeral establishment license at the next Board meeting, held on May 6, 2009.

32. Subsequent to your licensure as a funeral establishment, both Mr. Irving R. Panciera and Ms. Valerie Panciera-Rieth appeared in multiple advertisements for you, LANDMARK FUNERAL HOME, INC.

33. Subsequent to your licensure as a funeral establishment, Mr. Irving R. Panciera represented himself, via a business card, as a consultant for you, LANDMARK FUNERAL HOME,INC.

34. Subsequent to your licensure as a funeral establishment, the online business directory for the Greater Hollywood Chamber of Commerce listed Ms. Valerie Panciera-Rieth

    
    

    as a contact for you, LANDMARK FUNERAL HOME, INC. Additionally, the web page instructed visitors wishing to be contacted by you, LANDMARK FUNERAL HOME, INC., to "complete the form below to enable Valerie Panciera-Rieth at Landmark Funeral Home to contact you."

35. The representations made by Mr. Shaw at the April 8, 2009, Board meeting regarding the involvement of Mr. Irving R. Panciera and Ms. Valerie Panciera-Rieth with LANDMARK FUNERAL HOME, INC. were false.

36. Alternatively you, LANDMARK FUNERAL HOME, INC., failed to limit the activities of Mr. Irving R. Panciera and Ms. Valerie Panciera-Rieth to conform to the representations made to the Board by Mr. Shaw.

    IT IS THEREFORE CHARGED that you, LANDMARK FUNERAL HOME, INC.,

    
    

    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 license as a Funeral Establishment:

    1. 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]

    2. Attempting to obtain, obtaining or renewing a license under this chapter by bribery, false or forged evidence, or misrepresentation or through an error of the department or board known to the applicant. [Section 497.152(4)(f), Florida Statutes]

    3. Making or filing a report or statement to or with any government entity that the licensee knows or has reason to know to be false; or intentionally or negligently failing to file a report or record required to be filed with any government eritity, or willfully

impeding or obstructing another person to do so, or inducing another person to impede or obstruct such filing. (Section 497.152(4)(g), Florida Statutes]

WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties: revocation or suspension of LANDMARK FUNERAL HOME's license; imposition of an administrative fine not to exceed five thousand dollars ($5,000.00) for each count or separate offense; issuance of a written reprimand; placement on probation; assessment of costs associated with investigation and prosecution; requiring the establishment 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 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 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 Julie Jones, 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:

1. The name, address, and telephone number, and facsimile number (if any) of the respondent (for the purpose ofrequesting a hearing in this matter, you are the "respondent").

2. 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.

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 amended administrative complaint.

5. A statement including the file number to the amended 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 0  

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day of j'-' l               

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, 2010.

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DOUGL

Director, Division of Funeral, Cemetery, and Consumer Services

Docket for Case No: 11-002018