CHIEF FINANCIAL OFFICER

JEFF ATWATER

STATE OF FLORIDA

FILED

DEC 16 2011

Docketed by

IN THE MATTER OF:

GARY DAUGHERTY

(License Number: F042923)

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CASE NO.: 114222-11-FC

114212-11-FC

ADMINISTRATIVE COMPLAINT

TO: GARY DAUGHERTY

4310 CURRY FORD ROAD ORLANDO, FL 32806

You, GARY DAUGHERTY, 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 and 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, Florida Statutes.

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

   
   

   Filed September 14, 2012 11:23 AM Division of Administrative Hearings

   
   

   
   

   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 October 24,201I, found probable cause to charge you, GARY DAUGHERTY, with violations of Chapter 497, Florida Statutes, and the Department's administrative rules, and directed the Department to prosecute the matter.

4. At all times relevant to the allegations of this Administrative Complaint, you, GARY DAUGHERTY, were licensed as a Funeral Director and Embalmer, license number F042923 pursuant to the provisions of Chapter 497, Florida Statutes.

5, At all times relevant to allegation of this Administrative Complaint, Lynn Arruda was a direct disposer employed at Dove Funeral Home.

6, At all times relevant to allegation of this Administrative Complaint, you, GARY DAUGHERTY, were the funeral director in charge at Dove Funeral Home.

1. At all time relevant to the allegations of this Administrative Complaint, Dove Funeral Home was located at 4310 Curry Ford Road, Orlando, FL 32806.

   Count I

   
   

2. The above General Allegations are hereby re-alleged and fully incorporated herein by reference.

3. On or about March 24, 2009, an inspection was conducted at Dove Funeral Home.

   
   

4. During the inspection, it was discovered that you, GARY DAUGHERTY, were in violation of the Act when:

   1. You, GARY DAUGHERTY, allowed Lynn Arruda, a direct disposer, to make funeral arrangements at the establishment, which exceeded the scope of her licensure;

   2. You, GARY DAUGHERTY, failed to ensure that Dove Funeral Home had its

      
      

      
      

      licensed name on its business insignia; and

      
      

   3. You, GARY DAUGHERTY, failed to ensure that Dove Funeral Home filed the Cases Embalmed and Bodies Handled report for November 2008 through February 2009.

      IT IS THEREFORE CHARGED that you, GARY DAUGHERTY, 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 Funeral Director and Embalmer in this state:

      1. Section 497.152(l)(a), Florida Statutes, which provides that it is a violation 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.

      2. Section 497.152(l)(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.

      3. Section 497.152(5)(a), Florida Statutes, which provides that it is a violation to practice or offer to practice beyond the scope permitted by this chapter and rules adopted under 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.

      4. Section 497.152(5)(d), Florida Statutes, which provides that it is a violation to aide, assist, procure, employ, or advise any person or entity to practice a profession or occupation regulated by this chapter without required licensure under this chapter.

      5. Section 497.380(14), Florida Statutes, which provides that each funeral

      
      

      establishment must display at the public entrance the name of the establishment and the name of

      
      

      
      

      the full-time funeral director in charge. A funeral establishment must transact its business under the name by which it is licensed.

      (t) Section 497.382(1), Florida Statutes, which provides each funeral establishment, direct disposal establishment, cinerator facility, and centralized embalming facility shall report on a form prescribed and furnished by the licensing authority the name of the deceased and such other information as may be required with respect to each dead human body embalmed or otherwise handled by the establishment or facility. Such forms shall be signed by the embalmer who performs the embalming, if the body is embalmed, and the funeral director in charge of the establishment or facility or by the direct disposer who disposes of the body.

      (g) Rule 69K-20.001, Florida Administrative Code, which provides that each funeral establishment licensed pursuant to Chapter 497, F.S., on a monthly basis shall submit reports to the Department which shall contain the following information: the number of bodies handled and the date embalmed and name of the embalmer.

      Count II

      
      

5. The above General Allegations are hereby re-alleged and fully incorporated herein by reference.

6. On or about March 24, 2009, a financial examination (SRl-474966228) was conducted at Dove Funeral Home.

7. During the examination it was determined that, you, GARY DAUGHERTY, allowed Lynn Arruda, a direct disposer, to engage in the sale of preneed contracts. In fact, Lynn Arruda does not hold a valid preened sales agent license nor has she applied for a preneed sales agent license.

8. Additionally, Lynn Arruda is listed as a funeral director on multiple contracts.

   
   

   Lynn Arruda does not hold a valid funeral director license nor has she applied for funeral

   
   

   
   

   director licensure.

   
   

9. During the examination it was determined that, you, GARY DAUGHERTY, allowed Dove Funeral Home to use funeral home contracts that have not been approved by the Board of Funeral, Cemetery, and Consumer Services.

10. During the examination it was determined that, you, GARY DAUGHERTY, did not make timely and sufficient remittances to the Preneed Funeral Contract Section Trust Fund.

11. During the examination it was determined that, you, GARY DAUGHERTY, did not make timely and sufficient remittances to the Regulatory Trust Fund.

12. During the examination it was determined that, you, GARY DAUGHERTY, did not correct violations found in a previous examination report (SR 1-326140104).

    IT IS THEREFORE CHARGED that you, GARY DAUGHERTY, 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 Funeral Director and Embalmer in this state:

    1. Section 497.152(1)(a), Florida Statutes, which provides that it is a violation 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.

    2. Section 497.152(l)(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.

    3. Section 497.453(6), Florida Statutes, which provides that it in addition to other amounts required to be paid by this section, each preneed licensee shall pay to the Regulatory Trust Fund an amount established by rule not to exceed $10 for each preneed contract entered

       into. This amount shall be paid within 60 days after the end of each quarter. These funds shall be

       
       

       
       

       used to defray the cost of administering the provisions of this chapter.

       
       

    4. Section 497.454(1), Florida Statutes, which provides that Preneed contract forms and related forms shall be filed with and approved by the licensing authority prior to use, pursuant to procedures specified by rule. The licensing authority may not approve any preneed contract form that does not provide for sequential prenumbering thereon.

    5. Rule 69K-21.007(3), Florida Administrative Code, which provides that 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 Jaws and rules of the department

    Count III

    
    

13. The above General Allegations are hereby re-alleged and fully incorporated herein by references.

14. Dove Funeral, as referenced in the general allegations, holds a valid license as a

    
    

    Funeral Establishment in the state of Florida. That license gives Dove Funeral Home the power to enter into contracts with consumers for at-need services.

15. It was determined during the examination that Dove Funeral Home entered into multiple preneed contracts with consumers.

16. Dove Funeral Home is listed as the preneed seller on the following contracts:

    
    

    1. David Hunter

       
       

    2. Janet Wulfehuhler

       
       

    3. Robert Kasarda

       
       

    4. Ethel Klawe

       
       

    5. James A. Warren

       
       

    6. Ramon Diaz

       
       

       
       

    7. Anastacio Mercado

       
       

    8. Francisco Ortiz

       
       

    9. Efrain Jimenez, Sr.

       G) Edna Tyvoll

17. Dove Funeral Home does not hold a valid Preneed Main License. In fact, Dove Funeral Home's Preneed Main license expired June 8, 2001.

18. You, GARY DAUGHERTY, as Funeral Director in Charge of Dove Funeral Home, are responsible for making sure that the establishment and all persons employed in the establishment comply with all applicable laws and rules of the department,

IT IS THEREFORE CHARGED that you, GARY DAUGHTERY, 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 Funeral Director and Embalmer in this state:

1. Section 497.152(1)(a), Florida Statutes, which provides that it is a violation 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.

2. Section 497.152(l)(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.

3. Section 497.152(11)(d), Florida Statutes, which provides that it is a violation to guarantee the price of goods and services at a future date.

4. Section 497.452(1)(a), Florida Statutes, which provides that it is a violation to sell, advertise to sell, or make an arrangement for a preneed contract without first having a valid

   preneed license.

   
   

   
   

5. Rule 69K-5.0025(2)(a), Florida Administrative Code, which provides that upon becoming inactive, the preneed licensee shall cease the sale of preneed contracts.

6. Rule 69K-21.007(3), Florida Administrative Code, which provides that 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

   WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties on you, GARY DAUGHERTY, 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, GARY DAUGHTERY, 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 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 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 WAIYER 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 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 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 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. 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 cotTespondence 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 , 2011.

STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES

DIVISION OF LEGAL SERVICES

IN THE MATIER OF:

GARY DAUGHERTY

(License Number: F042923),

CASE NO.: 114212-11-FC

114222-11-FC

ELECTION OF PROCEEDING

I have received and have read the Administrative Complaint filed by the Florida Department of Financial Services

)

(' 1Department11 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 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,

1. 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,l53(4)(b), Florida Statutes. In this regard, I desire to:

   [ l 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.

   
   

2. [ ] I do dispute one or more of the Dcpmtment'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 Ruic 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 Depmtment of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390.

Signature

Date:                                                                                    

Print Name

Address:                                                                                    

Date Administrative

Complaint Received:                               _

If you are represented by an attorney or qualified representative, please attach to this election form his or her name, address, telephone and fax numbers

Phone No.:                                        Fax No.:                                                                               

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF PROCEEDING FORM has been furnished by U.S. Certified Mail, return receipt requested this ---1!2'day of_ u ""' -----' 2011, to:

GARY DAUGHTERY

4310 CURRY FORD ROAD ORLANDO, FL 32806

cin_fe Rive

Florida Department of Financial Services 200 E. Gaines St., 6th Floor

Tallahassee, FL 32399-0390

Phone (850) 413-4230

Fax: (850) 488-0697

Counsel for the Department

Docket for Case No: 12-002965PL