FILED CHIEF FINANCIAL OFFICER APR 18 2012 JEFF ATWATER STATE OF FLORIDA Docketed by Cu, IN THE MATTER OF: JESSE BURNS CASE NO.: 123565-12-FC FO43753 / ADMINISTRATIVE COMPLAINT TO: JESSE BURNS 10846 SW 38" Avenue Ocala, FL 34476 JESSE BURNS 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 F043753 to operate as funeral director in charge (FDIC). 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 your licensure as a funeral director in charge 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”). Filed June 6, 2012 3:13 PM Division of Administrative Hearings 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 met on February 28, 2012, found probable cause to charge JESSE BURNS with violations of Chapter 497, Florida Statutes, and directed the Department to prosecute, 4. At all times relevant to the allegations of this Administrative Complaint, JESSE BURNS was licensed by the State of Florida to conduct business as a funeral director in charge, pursuant to the provisions of the Act. JESSE BURNS’ license number is F043753. 5. Funeral establishments 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 to 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, JESSE BURNS was the full time funeral director in charge of Cunningham’s Funeral Home, a licensed funeral home establishment located in Ocala, Florida. Cunningham’s Funeral Home is now defunct, as its corporate status has been administratively dissolved by the State of Florida, and its funeral establishment license has been terminated. COUNT ONE 9, The above General Allegations are hereby realleged and fully incorporated herein by reference. 10. At all times pertinent to the dates and occurrences referred to herein, JESSE BURNS was the funeral director in charge of Cunningham’s Funeral Home. 11. The investigation found that JESSE BURNS, on behalf of Cunningham’s Funeral Home, entered into a contract with Billy Blalock on or about September 2, 2008, to provide a burial service for Billy Blalock’s deceased friend, Robert Haas. JESSE BURNS, as funeral director in charge at Cunningham’s Funeral Home, supervised the providing of the services for Robert Haas’ funeral. 12. Billy Blalock contracted for a simple cremation at a contract price of $3,499.00. In order to obtain funds to pay for the expenses of Robert Haas’ cremation, JESSE BURNS, on behalf of the funeral home, filed with the Circuit Court of Marion County on September 4, 2008, a Petition to Dispose of Personal Property Without Administration, petitioning the Circuit Court to order that the funds to pay for the expenses of the funeral be withdrawn from Mr. Haas’ savings account. You, JESSE BURNS, signed this Petition. 13. You, JESSE BURNS, represented to the Marion County Circuit Court the cost of the Robert Haas’ funeral was to be $12,397.00, not the contracted for $3,499, Furthermore, you, JESSE BURNS, represented that the estate of the decedent consisted of only personal property exempt from the claims of creditors under the Constitution of the State of Florida, and non- exempt personal property the value of which did not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last sixty days of the decedent’s illness which consisted of a Regions Bank savings account with an approximate value of $11,239.00. Finally, you represented in your Petition to the Marion County Circuit Court that you, JESSE BURNS, personally knew of no debts or expenses of the decedent other than the funeral bill. These representations made by you, JESSE BURNS, in the petition were false. You, JESSE BURNS, either knew these representations to be false at the time such representations were made or you made the representations without any knowledge of their truthfulness or lack thereof. 14, On or about September 11, 2008, you, JESSE BURNS, on behalf of the funeral home, entered into a new contract with Billy Blalock for a funeral service, superseding the previous contract to provide a cremation for Robert Haas, at the contracted for price of $11,688.00. You, JESSE BURNS, represented to Billy Blalock that the Circuit Court had ordered all of the funds contained in Robert Haas’ savings account to be turned over to Cunningham’s Funeral Home and that the funds had to be spent on the funeral, necessitating the new contract. This representation made to Billy Blalock was false and a material misstatement of fact. In point of fact, the entire value of the savings account was only to be turned over to you, JESSE BURNS, because of the false representations previously made by you, JESSE BURNS, to the Circuit Court in the petition. 15. The September 11, 2008, contract provided for a stainless steel casket at a contract price of $4,500.00 and a Heritage vault at a contract price of $2,200. The September 11, 2008, contract also provided for a bronze marker for Robert Haas at a contract price of $1,045.00. In lieu of the stainless steel casket, you, JESSE BURNS substituted an inferior casket valued at approximately $550.00 at the time of the burial without Billy Blalock’s prior knowledge ot informed consent. You, JESSE BURNS, failed to disclose to Billy Blalock the ‘price of the substitute casket. In lieu of the Heritage Vault, the Respondent substituted a plain concrete vault with an approximate value of $135.00, without Billy Blalock’s knowledge or informed consent. You, JESSE BURNS, failed to disclose to Billy Blalock the price of the substitute concrete vault. 16.. You, JESSE BURNS, did not provide Billy Blalock with any refund or adjustment in the casket price or the vault price, despite the fact that the contracted for items were not provided and received. Furthermore, you, JESSE BURNS, failed to provide the contracted for marker for Robert Haas’ grave. You, JESSE BURNS, did not provide Billy Blalock with any refund or adjustment in the funeral price, despite the fact that the contracted for marker was never provided. You, JESSE BURNS were aware or should have been aware of these facts. 17. Robert Haas was buried immediately. There was no funeral service or visitation, You, JESSE BURNS, and the funeral home per the contract charged $550 plus $150 for embalming and preparation of the body. You, JESSE BURNS, failed to provide any explanation as required by the contract as to why it was necessary to embalm Robert Haas. You, JESSE BURNS, and the funeral home charged per the contract $150.00 for flowers. No flowers were provided by you, JESSE BURNS, or the funeral home for Robert Haas’ burial. You, JESSE BURNS were aware or should have been aware of these facts. 18. On October 6, 2008, the Marion County Circuit Court ordered that $11,239.00, representing the entire value of the previously mentioned savings account, be transferred to Cunningham’s Funeral Home to pay for decedent’s funeral expenses. In point of fact, the savings account only contained $9,946.00 and it was this sum was that transferred to Cunningham’s Funeral Home. 19. . The above mentioned transactions conducted by you, JESSE BURNS, and the representations made by you, JESSE BURNS, in their furtherance were fraudulent and completely unnecessary. The executor for Robert Hass’ estate has made a demand for a return of the funds, but you, JESSE BURNS, and Cunningham’s Funeral Home refused same. The funeral home is now defunct. As a result the Estate of Robert Hass been depleted of its assets and has suffered a financial loss. IT IS THEREFORE CHARGED that you, JESSE BURNS, have violated or are accountable under the following provisions of the Act which constitute grounds for discipline: (a) Section 497.152(1)(a), Florida Statutes, which provides that violating any provision of the Act constitutes a disciplinary offense; (b) Section 497.152(1)(b), Florida Statutes, which provides that committing fraud, deceit, negligence, incompetency or misconduct in the practice of any of the activities regulated | under this chapter is a disciplinable offense; (c) Section 497.152(4)(g), Florida Statutes, which provides that making or filing a statement to any government entity that the licensee knows or has reason to know is false is a disciplinable offense; (d) Section 497.152(9)(a), Florida Statutes, which provides that solicitation by the licensee, or by his or her agent, assistant or employee, through the use of fraud, undue influence, intimidation, overreaching, or other means that takes advantage of a customer’s ignorance or emotional vulnerability, is a disciplinable offense; (e) Section 497.1529), Florida Statutes, which provides that 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 the profession or occupation regulated under this chapter, including the sale of any merchandise or services related to the practice of the profession or occupation, is a disciplinable offense; and (f) ~— Section 497.152(13)(a), Florida Statutes, which provides that failing, without reasonable justification, to timely honor contracts entered into by the licensee or under the licensee’s license for funeral or burial merchandise or services is a disciplinable offense. 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 DFS Agency Clerk, Julie Jones, at the Florida Department of Financial Services, 612 Larson Building, 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 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. STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES IN THE MATTER OF: CASE NO.: 123565-12-FC JESSE BURNS FO 43753 / ELECTION OF PROCEEDING Thave 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 1 understand my options. I am requesting disposition of this matter as indicated below. (CHOOSE ONE) 1] 30] 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 Section 120.57(2), Florida Statutes. In this regard, I desire 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. 1 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: Julie Jones, DFS Agency Clerk, 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: Tf 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.: 11 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 18 day of April 2012. J. Paul Whitfield, Jr. Deputy Chief of Financial Services CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint has been furnished by Certified Mail to: JESSE BURNS at 10846 SW 38™ Avenue, Ocala, Florida 34476 this 1% day of Fp rv\ , 2012. mes A. Bossart, Assistant General Counsel rida Department of Financial Services Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 10

Docket for Case No: 12-001997PL