CHIEF FINANCIAL OFFICER

JEFF ATWATER

STATE OP FLORIDA

IN THE MATTER OF:

LYNN ARRUDA

(License Number: F042107)

                                                                   .....;!

ADMINISTRATIVE COMPLAINT TO: LYNN ARRUDA

4310 CURRY FORD ROAD ORLANDO, FL 32806

FILED

DEC 15 2011

CASE NO.: 114245-11-FC

114211-11-FC

You, LYNN ARRUDA, 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 Direct Disposer. 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 whether a proposed administrative prosecution of a licensee shall go forward, as set forth in

   
   

   Filed September 14, 2012 11:20 AM Division of Administrative Hearings

   
   

   Sections 497.103(1)(v) and 497.153(3), Florida Statutes.

   
   

3. A probable cause panel on October 24, 2011, found probable cause to charge you, LYNN ARRUDA, 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, LYNN ARRUDA, were licensed as a Direct Disposer, license number F042107, pursuant to the provisions of Chapter 497, Florida Statutes.

5. At all times relevant to the allegations of this Administrative Complaint, you, LYNN ARRUDA, were a direct disposer employed at Dove Funeral Home.

6. At all times relevant to the allegations of this Administrative Complaint, Gary Daugherty was the funeral director in charge at Dove Funeral Home.

   Count I

   
   

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

8. On or about March 24, 2009, a financial examination (SRI-474966228) and an inspection (SRl-595582341) were conducted at Dove Funeral Home.

9. During the examination it was determined that, you, LYNN ARRUDA, a direct disposer, were engaged in the sale of preneed contracts. In fact, you, LYNN ARRUDA, do not hold a valid preened sales agent license nor have you applied for a preneed sales agent license.

10. Additionally, you, LYNN ARRUDA, are listed as a funeral director on multiple contracts. You, LYNN ARRUDA, do not hold a valid funeral director license nor have you applied for funeral director licensure.

11. During the examination it was determined that, you, LYNN ARRUDA, are using

    
    

    funeral home contracts that have not been approved by the Board of Funeral, Cemetery, and

    
    

    Consumer Services.

    
    

12. During the examination it was determined that you, LYNN ARRUDA, entered into multiple insurance contracts with consumers at Dove Funeral Home, which exceeds the scope of your licensure.

IT IS THEREFORE CHARGED that you, LYNN ARRUDA, 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 Direct Disposer 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(1)(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 497.454(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.

4. 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.

5. Section 497.451, Florida Statutes, which provides that nothing in the Florida

   
   

   Insurance Code or this chapter shall be deemed to authorize any preneed funeral merchandise or service contract business or any preneed burial merchandise or service business to transact any insurance business, other than that of preneed funeral merchandise or service insurance or prerteed burial merchandise or service insurance, or otherwise to engage in any other type of insurance unless it is authorized under a certificate of authority issued under the provisions of the Florida Insurance Code.

6. Section 497.466(1), Florida Statutes, which provides that all persons who offer /

preneed contracts to the public, or who execute preneed contracts on behalf of a preneed licensee, including all persons who offer, sell, or sign contracts for the preneed sale of burial rights, shall be licensed as preneed sales agents, pursuant to this section. Persons licensed as funeral directors pursuant to this chapter may engage in preneed sales for the preneed licensee with whom they are affiliated without preneed sales agent licensure or appointment under this section,

WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties on you, LYNN ARRUDA, 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, LYNN ARRUDA, 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 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 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 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 tUttil the response has been received by

the Pepartment.

De

DATED and SIGNED this lS.,\,t...day of <D-e=C'<:'.11,-,bet" • 2011.

IN THE MATTEROF:

LYNN ARRUDA

STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES

DIVISION OF LEGAL SERVICES

CASE NO.: 114245-11-FC

(License Number: F042107), 114211-11-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) ·

1. [ ] 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.

   
   

2. 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 497.1S3(4)(b), Florida Statutes. In this regard, I desire to:

   [ J 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.

3. [ J I gg dispute one or more of the Department's factual allegations. I hereby request a hearing pursuant to Section 120.57( I), 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 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 Department 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 nre represented by an nttorney or qualified representative, plense nttach 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 f day of        :lle. et-_.;..._t,a.1-,. ' 2011, to:

LYNN ARRUDA

4310 CURRY FORD ROAD ORLANDO, FL 32806

Llin Ri

2"       

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: 13-001266PL