STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1704

)

EVERGREEN MORTUARY AND )

ELMER E. HEWITT, )

)

Respondents. )

)

RECOMMENDED ORDER

After due notice, a public hearing was held before Delphene

C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on January 16, 1976, at 10:00

1. in Room 200-E, Florida Keys Community College, Stock Island, College Row, Key West, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: G. KENNETH NORRIE, Esquire

   1300 Florida Title Building Jacksonville, Florida 32202

   
   

   For Respondents: Robert I. Spiegelman, Esquire

   Suite M-112, Biscayne Building Miami, Florida 33130

   
   

   ISSUE

   
   

   Whether Respondent's personal and operating licenses should be suspended, revoked, or withdrawn.

   
   

   FINDINGS OF FACT

   
   

   1. The State Board of Funeral Directors and Embalmers charged Respondent, Elmer E. Hewitt, as follows:

   2. The Respondent, Elmer E. Hewitt, violated Section 470.30(4), Florida Statutes, and Rule 21J7-08 of the Rules of the State Board of Funeral Directors and Emba1mers for Florida in that he permitted Evergreen Mortuary to be operated without the full charge, control and supervision of an individually licensed funeral director and licensed embalmer, and in that he suffered Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embaliningby ban improper use of his license, to wit by representing himself to be the regularly employed licensed funeral director and embalmer in charge of such establishment when he was not so employed but rather employed full time as a social worker in Miami, Dade County, Florida;

      
      

   3. The Respondent , Elmer E. Hewitt, violated Section 470.12(1)(k), Florida Statutes, in that as a licensed embalmer he violated the provisions of Chapter 470, Florida Statutes, and in particular, Section 470.30(4).

      
      

   4. The Respondent, Elmer E. Hewitt, violated Section 470.l2(2)(p), Florida Statutes, in that as a license funeral director he violated provisions of Chapter 470, Florida Statutes, and in particular Section 470.30(4).

      
      

   5. The Respondent, Elmer E. Hewitt, is listed in the records of the State Board of Funeral Directors and Embalmers of Florida as a licensed funeral director and embalmer regularly employed in charge of Evergreen Mortuary located at 325 Julia Street, Key West, Florida. Mr. Hewitt executed an affidavit on a formal application supplied by the Board stating that he was a licensed funeral director and embalmer regularly employed and in charge of the Evergreen Mortuary. Respondent also executed an affidavit in which it appears that he is a funeral director of Evergreen Mortuary and the only one licensed embalmer and funeral director employed by that establishment on a regular and full time basis.

      
      

   6. Mr. Hewitt is employed as a Social Worker I for the Comprehensive Alcohol Program, 1400 Northwest Tenth Avenue, Miami, Florida, and maintains a residence in Miami, Florida.

      
      

   7. The Board contends: (a) That the establishment operating license and the accompanying affidavits executed by Elmer E. Hewitt were false in that Mr. Hewitt was not and is not the licensed funeral director regularly employed in charge of Evergreen Mortuary and that he is not employed by Evergreen Mortuary on a regular and full time basis at his location in Key West, Florida, but rather is employed full time in Miami, Florida;

   8. That Mr. Hewitt acted as agent for or in behalf of or in furtherance of the interests of the Respondent Evergreen Mortuary in obtaining an establishment operating license;

      
      

   9. That he suffered the owners of Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embalming by improper use of his license;

      
      

   10. That Mr. Hewitt was not employed and in charge of Evergreen Mortuary within the meaning of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida;

       
       

   11. That Respondent, Elmer E. Hewitt, violated Sections 470.30(4), 470.12(1)(k), and 470.12(2)(p), Florida Statutes;

       
       

   12. That Respondent, Evergreen Mortuary, violated Section 470.12(4)(a), Florida Statutes, in that Elmer E. Hewitt, a person connected with Evergreen Mortuary as am employed agent, committed violations while acting as agent for or in behalf of or in furtherance of interests of Evergreen Mortuary.

       
       

   13. Respondent, Elmer E. Hewitt, contends:

       
       

   14. That he in fact has a residence in Key West, Florida;

       
       

   15. That he devotes his full time as funeral director and emba1mer to the business of Evergreen Mortuary;

       
       

   16. That although he is employed on a full time basis at the Comprehensive Alcohol Program, he fulfills his obligations to that job at night and on weekends and other times when he is not performing his duties as a full time employee of Evergreen Mortuary.

       
       

   17. The Hearing Officer further finds:

       
       

   18. That under the terms of Respondent Hewitt's employment for the Comprehensive Alcohol Program in Miami, Florida, he is required to work a 40-hour week, but there was no evidence submitted to show' that Respondent Hewitt does in fact work a 40- hour week in his employment in Miami, Florida;

       
       

   19. The evidence shows and it is found that Elmer E. Hewitt is a full time funeral director and embalmer within the requirements of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida;

   20. That Respondent Hewitt is employed by Evergreen Mortuary on a regular basis as required by the statutes and the Rules of the State Board of Funeral Directors and Embalmers;

       
       

   21. That air transportation and telephone service from Miami to Key West provide current information and valid transportation so that the business of Evergreen Mortuary can be conveniently performed even though Respondent Hewitt may be in Miami, Florida.

       
       

       CONCLUSIONS OF LAW

       
       

   22. Section 470.30(4), Florida Statutes, and Rule 21J7-08, Rules of the State Board of Funeral Directors and Embalmers of Florida, require that a mortuary be operated in full charge, control and supervision of an individually licensed funeral director and embalmer. Respondent Hewitt is a licensed funeral director and embalmer and is regularly and full time employed by the Evergreen Mortuary and therefore is not in violation of Chapter 470, Florida Statutes.

RECOMMENDATION

Dismiss the proceedings for the suspension of Elmer E. Hewitt, licensed funeral director and embalmer and dismiss the petition for revocation of the operating license of Evergreen Mortuary.

DONE and ORDERED this 12th day of March, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

1. Kenneth Norrie, Esquire Counsel for Petitioner

   
   

   Robert I. Spiegelman, Esquire Counsel for Respondent

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS, BOARD OF FUNERAL DIRECTORS AND EMBALMERS

   
   

   In the Matter of the Revocation or Suspension of the Licenses of EVERGREEN MORTUARY, licensed funeral establishment, 325 Julia Street, Key West, Florida 33040; and ELMER E. HEWITT, licensed

   funeral director and embalmer in CASE NO. 75-1704 charge of EVERGREEN MORTUARY,

   1024 Northwest 43rd Street, Miami, Florida,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   This cause came to be considered by the Florida State Board of Funeral Directors and Embalmers on August 9, 1976, in Jacksonville, Florida, upon the Recommended Order, the exceptions thereto, and the entire record of these proceedings having been considered and reviewed by the Board including the response received by the Board to its Order of June 14, 1976, the Board hereby makes the following findings of fact and conclusions of law:

   
   

   FINDINGS OF FACT

   
   

   1. The State Board of Funeral Directors and Embalmers charged Respondent, Elmer E. Hewitt, as follows:

      
      

      1. The Respondent, Elmer E. Hewitt, violated 470.30(4), F.S., and Rule 21J-7.08 of the Rules of the State Board of Funeral Directors and Embalmers for Florida in that he permitted Evergreen Mortuary to be operated without the full charge, control and supervision of an individually licensed funeral director and licensed embalmer, and in that he suffered Evergreen Mortuary to

         pretend or represent that it was legally qualified to perform funeral directing or embalming by an improper use of his license, to wit, by representing himself to be the regularly employed licensed funeral director and embalmer in charge of such establishment when he was not so employed but rather employed full time as a social worker in Miami, Dade County, Florida;

         
         

      2. The Respondent, Elmer E. Hewitt, violated 470.12(1)(k), F.S., in that as a licensed embalmer he violated the provisions of Ch. 470, F.S., and in particular, 470.30(4)

         
         

      3. The Respondent Elmer E. Hewitt, violated 470.12(2)(p), F.S., in that as a licensed funeral director he violated provisions of Ch. 470, F.S., and in particular 470.30(4).

      
      

   2. The Respondent, Elmer E. Hewitt, is listed in the records of the State Board of Funeral Directors and Embalmers of Florida as a licensed funeral director and embalmer regularly employed in charge of Evergreen Mortuary located at 325 Julia Street, Key West, Florida. Mr. Hewitt executed an affidavit on a formal application supplied by the Board stating that he was a licensed funeral director and embalmer regularly employed and in charge of the Evergreen Mortuary. Respondent also executed an affidavit in which it appears that he is a funeral director of Evergreen Mortuary and the only one licensed embalmer and funeral director employed by that establishment on a regular and full time basis.

      
      

   3. Mr. Hewitt is employed as a Social Worker I for the Comprehensive Alcohol Program, 1400 Northwest 10th Avenue, Miami, Florida, and maintains residence in Miami, Florida.

The Board contends:

1. That the establishment operating license and the accompanying affidavits executed by Elmer E. Hewitt were false in that Mr. Hewitt was not and is not the licensed funeral director regularly employed in charge of Evergreen Mortuary and that he is not employed by Evergreen Mortuary on a regular and full time basis at its location in Key West, Florida, but rather is employed full time in Miami, Florida;

   
   

2. That Mr. Hewitt acted as agent for or in behalf of or in furtherance of the Interests of the Respondent Evergreen Mortuary in obtaining an establishment operating license;

3. That he suffered the owners of Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embalming by improper use of his license;

   
   

4. That Mr. Hewitt was not employed and in charge of Evergreen Mortuary within the meaning of Ch. 470, F.S., and the Rules of the State Board of Funeral Directors and Embalmers of Florida;

   
   

5. That Respondent, Elmer Hewitt, violated 470.30(4), 470.12(1)(k), and 470.12(2)(p), F.S.;

   
   

6. That Respondent, Evergreen Mortuary, violated 470.12(4)(a), F.S., in that Elmer E. Hewitt, a person connected with Evergreen Mortuary as an employ agent, committed violations while acting as agent for or in half of or in furtherance of interests of Evergreen Mortuary.

Respondent, Elmer E. Hewitt, contends:

1. That he in fact has L residence in Key West, Florida;

   
   

2. That he devotes his full time as funeral director and embalmer to the business of Evergreen Mortuary;

   
   

3. That although he is employed on a full time basis at the Comprehensive Alcohol Program, he fulfills his obligations to that job at night and on weekends and other times when he is not performing his duties as a full time employee of Evergreen Mortuary.

The Hearing Officer further finds:

1. That under the terms of Respondent Hewitt's employment for the Comprehensive Alcohol Program in Miami, Florida, he is required to work a 40-hour week, but there was no evidence submitted to the Hearing Officer to show that Respondent Hewitt does in fact work a 40-hour week in his employment in Miami, Florida;

   
   

2. The evidence appeared to show and it was found by he Hearing Officer that Elmer E. Hewitt is a full time funeral director and embalmer within the requirements of Ch. 470, F.S., and the Rules of the State Board of Funeral Directors and Embalmers of Florida;

3. That it appeared Respondent Hewitt was employed icy Evergreen Mortuary on a regular basis as required by the statutes and the Rules of the State Board of Funeral Directors and Embalmers;

   
   

4. That air transportation and telephone service from Miami to Key West provide current information and valid transportation so that the business of Evergreen Mortuary can be conveniently performed even though Respondent Hewitt may be in Miami, Florida.

The Board, however, specifically finds:

1. That in response to its Order dated June 14, 1976, as well as communication received by the Board on June 10, 1976, Respondent Hewitt's employer, Marshall Parkas, Ph.D., Director, Central Intake Service's, has stated that the Respondent Hewitt works a full, five day week with hours daily from 11:00 p.m. to 7:00 a.m. and further Respondent Hewitt is not free to leave his duties at Central Intake during this time. As a shift supervisor, Respondent Hewitt is responsible for full coverage of his shift seven days a week.

   
   

2. That in view of Respondent Hewitt's inability to leave his job assignments in Miami while on duty there, he can not be considered to be employed full-time at Evergreen Mortuary in Key West.

   
   

3. That the responsibilities and titles of funeral directing and embalming cannot be carried out over the telephone nor by

long-distance air transportation, and therefore Respondent Hewitt cannot be in charge of Evergreen Mortuary in Key West when he is working in Miami.

CONCLUSIONS OF LAW

Section 470.30(4), F.S., and Rule 21J-7.08, F.A.C., require that a mortuary be operated in full charge, control and supervision of an individually licensed funeral director and embalmer. Respondent Hewitt is a licensed funeral director and embalmer, but is not regularly and full time employed by the Evergreen Mortuary and therefore is in violation of Ch. 470, F.S., for allowing his license to be used by said Evergreen Mortuary,

325 Julia Street, Key West, Florida 33040. Further, said Evergreen Mortuary is in violation of Ch. 470, F.S., for failure to have a full time licensed funeral director in charge at all times.

NOW THEREFORE it is hereby ORDERED and ADJUDGED that the licenses to practice funeral directing and embalming previously issued to Elmer E. Hewitt are hereby suspended for a period thirty

(30) days, said suspension to be set aside for the full thirty

(30) day period resulting in a period of probation. Further, Respondent Hewitt is reprimanded for his violation of Ch. 470,

F.S. The establishment license previously issued to Evergreen Mortuary, 325 Julia Street, Key West, Florida 33040, is hereby suspended for a period of thirty (30) days, said suspension to be set aside resulting in probation for the thirty (30) day period.

Dated this 13th day of August, 1976, by order of the Florida State Board of Funeral Directors and Embalmers.

RONALD T. GIDDENS, PRESIDENT BOARD OF FUNERAL DIRECTORS AND EMBALMERS

Docket for Case No: 75-001704

Orders for Case No: 75-001704