CHIEF FINANCIAL OFFICER
JEFF ATWATER
STATE OF FLORIDA
b
MAY 19 2011
IN THE MATTER OF:
TRINITY MEMORIAL CEMETERY, INC.
(License Number: F039638)
I
CASE NO.: 114209-11-FC
ADMINISTRATIVE COMPLAINT
TO: TRINITY MEMORIAL CEMETERY, INC.
12609 Memorial Drive
New Port Richey, Florida 34655
TRINITY MEMORIAL CEMETERY, INC. ("TRINITY MEMORIAL"), is hereby
notified that the Department of Financial Services ("Department") has conducted an investigation in connection with its license to operate as a Cemetery. Based upon the investigation, it is alleged:
GENERAL ALLEGATIONS
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 TRINITY MEMORIAL's licensure as a Cemetery 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").
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
Filed June 16, 2011 1:47 PM Division of Administrative Hearings
Sections 497.103(1)(v) and 497.153(3), Florida Statutes.
A probable cause panel on April 26, 2011, found probable cause to charge TRINITY MEMORIAL with violations of Chapter 497, Florida Statutes, and the Department's administrative rules and directed the Department to prosecute.
At all times relevant to the allegations of this Administrative Complaint, TRINITY MEMORIAL was licensed as a Cemetery, license number F039638, pursuant to the provisions of Chapter 497, Florida Statutes, and the Rules promulgated thereunder.
At all times relevant to the allegations of this Administrative Complaint, TRINITY MEMORIAL held a Pre-Need Main license, license number F021823.
At all times relevant to the allegations of this Administrative Complaint, Diana Sayegh was employed as a family service advisor or salesperson by TRINITY MEMORIAL.
At all times relevant to the allegations of this Administrative Complaint, David Ford was the president and director of TRINITY MEMORIAL.
At all times relevant to the allegations of this Administrative Complaint, Lisa Sommers was the General Manager of TRINITY MEMORIAL.
On or about August 2, 2008, consumer Doreen Blair ("Ms. Blair") entered into a pre-need contract with TRINITY MEMORIAL for funeral services for her mother. Lisa Sommers and Kathy Bram signed the contract on behalf of TRINITY MEMORIAL.
On or about October 5, 2009, Division Examiner Chris McMurray ("Mr.
McMurray") performed a complaint investigation of TRINITY MEMORIAL.
COUNT!
The above General Allegations are hereby realleged and fully incorporated herein by reference.
As part of his investigation, Mr. McMurray requested that TRINITY MEMORIAL provide a copy of the contract entered into by TRINITY MEMORIAL and Ms. Blair.
The contract provided did not include Ms. Blair's signature. In fact, no purchaser signature is present.
Ms. Blair did not receive a signed, fully executed copy of the pre-need contract.
IT IS THEREFORE CHARGED that TRINITY MEMORIAL has violated or is 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 its license as a Cemetery:
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]
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]
Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]
Failing to furnish, for retention, to each purchaser of burial rights, burial or funeral merchandise, or burial or funeral services a written agreement, the form of which has been previously approved if and as required by this chapter, that lists in detail the items and services purchased together with the prices for the items and services purchased; the name, address, and telephone number of the licensee; the signatures of
the customer and the licensee or her or his representative; and the date signed. [Section 497.152(1 l)(a), Florida Statutes]
A preneed licensee offering to provide burial rights, merchandise, or services to the public shall provide to the customer, upon the purchase of any burial right, merchandise, or service, a written contract the form of which has been approved by the licensing authority pursuant to procedures specified by rule. The written contract shall be completed as to all essential provisions prior to the signing of the contract by the consumer. [Section 497.468(5)(a), Florida Statutes]
COUNT II
The above General Allegations are hereby realleged and fully incorporated herein by reference.
In conjunction with the sale of pre-need funeral services, Employee Diana Sayegh provided Ms. Blair with a document entitled "Important Notice For Our Families" ("Notice").
The Notice was faxed to Ms. Blair on or about January 22, 2009, with a notation from Diana Sayegh to "please read and sign."
Included in the Notice as a "[r]eason for NOT using outside monument companies" (emphasis in original) was that "[d]amage to markers will usually not be covered for repair/replacement."
Included in the Notice as a "benefit from purchasing your marker through Trinity Memorial Gardens" was that "Trinity Memorial Gardens will guarantee repairs or replacement should any damage occur due to flaws in production and/or the use of our lawn equipment."
The statement was false or misleading, as cemeteries have a duty to ensure that
all improvements of the cemetery are well cared for and maintained in a proper and dignified condition. Furthermore, the statement ignores that damage to a marker caused by a cemetery employee or by lawn equipment would be the responsibility of the cemetery regardless of where the marker was purchased.
During negotiations with Ms. Blair, Ms. Sayegh, as a representative of TRINITY MEMORIAL, informed Ms. Blair that TRINITY MEMORIAL would take no responsibility for damage to any monument that was purchased from an outside vendor.
IT IS THEREFORE CHARGED that TRINITY MEMORIAL has violated or is 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 its license as a Cemetery:
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]
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]
Misrepresenting the benefits, advantages, conditions, or terms of any contract to
provide any services or merchandise regulated under this chapter. 497.152(9)(d), Florida Statutes]
[Section
Misrepresenting pertinent facts or prepaid contract provisions relating to funeral or burial merchandise or services. [Section 497.152(10)(d), Florida Statutes]
Every cemetery company or other entity responsible for the care and
maintenance of a licensed cemetery in this state shall ensure that the grounds, structures, and other improvements of the cemetery are well cared for and maintained in a proper and dignified condition. [Section 497.262, Florida Statutes]
Every licensed cemetery shall be maintained in a reasonable condition as defined in Section 497.005(10), F.S. [Rule 69K-6.002, Florida Administrative Code]
No licensee or registrant shall disseminate or cause dissemination of any advertisement or advertising which is in anyway false, fraudulent, deceptive and misleading. Any adve1tisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading ifit: (a)Contains a misrepresentation of facts; or (b) 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 paitial disclosure of relevant facts; or (c) Has the capacity or tendency to create false or unjustified expectations; or (d) Contains false, fraudulent, deceptive or misleading representations relating to the quality or quantity of the services offered; or (e) Contains any representations or claims which the licensee referred to in the advertising fails to perform; or (f) Contains any other representation, statement or claim which has the capacity or tendency to mislead or deceive. [Rule 69K-29.001, Florida Administrative Code]
COUNT III
The above General Allegations are hereby realleged and fully incorporated herein by reference.
In conjunction with the sale of pre-need funeral services, Employee Diana Sayegh provided Ms. Blair with a document entitled "Important Notice For Our Families" ("Notice").
The Notice was faxed to Ms. Blair on or about January 22, 2009, with a notation from Diana Sayegh to "please read and sign."
Included in the Notice as a "[r]eason for NOT using outside monument companies" (emphasis in original) was that "[d]amage to markers will usually not be covered for repair/replacement."
At the time of first receiving the Notice, Ms. Blair chose not to sign and return it.
Subsequent to her receipt of the January 22, 2009, fax, Ms. Blair called TRINITY MEMORIAL regarding the placement of a monument. TRINITY MEMORIAL again sent Ms. Blair a copy of the Notice, with instructions to sign and return it.
Diana Sayegh, as a representative of TRINITY MEMORIAL, informed Ms.
Blair that a monument purchased from an outside vendor could not be placed in the cemetery unless and until TRINITY MEMORIAL received a signed copy of the Notice.
Ms. Blair signed and returned the form on or about April 14, 2009, after the marker was placed.
IT IS THEREFORE CHARGED that TRINITY MEMORIAL has violated or is 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 its license as a Cemetery:
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]
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]
No person who is authorized to sell grave spaces and no cemetery company or other entity owning and operating a cemetery may require waiver of liability with respect to damage caused by cemetery employees or agents to a monument after installation, where the monument or installation service is not purchased from the person authorized to sell grave space or the cemetery company providing grave space or from or through any other person or corporation designated by the person authorized to sell grave space or the cemetery company providing grave space. [Section 497.280(2)(b)3., 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 TRINITY MEMORIAL'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:
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").
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.
A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate.
A statement of when the respondent received notice of the amended administrative complaint.
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.
J au! Whitfield, J . Deputy Chief Finan
DATED and SIGNED this """" ,!:,,--'+L-\.i,4.1...J.l>.L-''1 ' 2011.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and the following ELECTION OF PROCEEDING has
/4:1
been furnished to TRINITY MEMORIAL CEMETERY, INC., 12609 Memorial Drive, New Port Richey, Florida 34655, return receipt requested, restricted delivery, this /?0.day of
'2011.
Assistant General Counsel
Florida Department of Financial Services Division of Legal Services
200 East Gaines St.
· 612 Larson Building Tallahassee, Florida 32399-0333
(850) 413-4269
Florida Bar Number 0028832
IN THE MATIER OF:
STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES
DIVISION OF LEGAL SERVICES
TRINITY MEMORIAL CEMETERY, INC.
(License Number: F039638)
/
CASE NO.: 114209-11-FC
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)
I. [ ] 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 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 (CHOOSE ONE):
[ ] 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.
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 Depmtment of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0390.
Signature
Date: _
Date Administrative
Complaint Received: _
Print Name
Address: _
Ifyoau
rrepresented 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.: _
