Miller and the Brevard Funeral Home North and the Brevard Funeral Home South should be revoked or suspended for violation of Chapter 470, Florida Statutes, particularly Sections 470.12(1)(k), 470.12(1)(h), 470.12(2)(d), 470.12(2)(i),
470.12(2)(p) and 470.12(4)(a) and Rule 21J-7.10 of the Rules of the State Board of Funeral Directors and Embalmers, Florida Administrative Code.
By Administrative Complaint, Respondents, Jimmie F. Prevatt and George
W. Ammen, were charged by the State Board of Funeral Directors and Embalmers with violations of subsections 470.12(1)(h), 470.12(1)(k), 470.12(2)(d), 470.12(2)(i), and 470.12(2)(p), Florida Statutes, and Rule 21J-7.10 of the Rules of State Board of Funeral Directors and Embalmers in that as licensed embalmers and licensed funeral directors, they paid or caused to be paid valuable consideration in the form of the use of the name and services of the licensed funeral establishments of which they were the licensed funeral directors in charge for use by Florida Memorial Gardens, a cemetery, in order to secure business from or through said cemetery, its affiliate organizations, its agents, and its employees, for the benefit of themselves and their respective funeral establishments; in that as licensed funeral directors in charge of licensed funeral establishments, they employed, retained or otherwise engaged Florida Memorial Gardens and its employees and agents to solicit business for their respective funeral establishments; in that they, as licensed funeral directors in charge of licensed funeral establishments, offered an inducement to Florida Memorial Gardens and its employees and agents as solicitors, agents, or canvassers for the purpose of securing or attempting to secure business for their respective funeral establishments by engaging in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice; and in that they violated the provisions of Chapter 470, Florida Statutes.
By Administrative Complaint, Respondent Richard K. Miller, was charged by the State Board of Funeral Directors and Embalmers with a violation of Rule 21J-7.10, Rules of State Board of Funeral Directors and Embalmers, enacted pursuant to subsection 470.04(2), Florida Statutes, in that as a licensed embalmer and licensed funeral director he engaged in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice.
By Administrative Complaint, Respondents, Brevard Funeral Home North and Brevard Funeral Home South, were charged by the State Board of Funeral Directors and Embalmers with violations of subsection 470.12(4)(a), Florida Statutes, in that Jimmie F. Prevatt and George W. Ammen, respectively, as funeral directors in charge, and Robert G. Weld, as owner of said funeral homes, have been guilty of acts provided as grounds for revocation of an embalmer's license as provided in Section 470.12, Florida Statutes.
The Petitioner, State Board of Funeral Directors and Embalmers, seek to revoke the licenses of Respondents and impose on them the cost of these proceedings. The Complaint was dated June 9, 1976, and a copy was furnished to the Respondents herein.
At the time of the filing of the Complaint, Robert G. Weld was the owner of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the filing of the Complaint Mr. Weld sold the Brevard Funeral Home North to Respondent, Jimmie F. Prevatt and to Mr. Alan P. Meindertsma. Brevard Funeral Home South was sold by Mr. Weld to Respondent, George W. Ammen, Jr. The sales were effective September 20, 1976.
The sale consisted of the furnishings, equipment and funeral service business but not the land, building and fixtures of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the sale, the State Board of Funeral Directors and Embalmers upon application reissued the funeral establishment licenses to Brevard Funeral Home North and Brevard Funeral Home South to reflect the new owners, with the same license number tags existing at the time of the ownership by Mr. Weld, reflecting that Mr. Prevatt and Mr. Ammen were the same funeral directors in charge. There was no new licensing inspection.
A motion to dismiss was filed on behalf of Brevard Funeral Home North and Brevard Funeral Home South. The movants contended that the change of ownership from Mr. Weld to the new owners rendered the Complaint moot as against those establishments. The motion was denied for the reason that the parties are the same, there had been adequate notice, and the parties had an opportunity to be heard at the administrative hearing. The, Petitioner Board and this Hearing Officer has jurisdiction of the parties and subject matter.
A motion to dismiss was filed for failure of the State Board of Funeral Directors to comply with Section 120.60(4), Florida Statutes, in that the agency had not given the licensees an opportunity to show that they had complied with all lawful requirements for retention of their licenses but were obligated to come immediately to a formal hearing. The motion was denied.
A motion to dismiss was filed stating that the Petitioners contend the act complained of a violation of Section 470.12, Florida Statutes. Respondents contended this is a violation of the rights of Respondents under the Florida Constitution. Motion was denied. The Hearing Officer has jurisdiction.
Prior to September 20, 1976, at which time Respondents Prevatt and Ammen purchased an ownership interest in Brevard Funeral Home North and Brevard Funeral Home South, Robert G. Weld, owner of said funeral homes, entered into an agreement with Gene Crowe, owner of Florida Memorial Gardens also known as Florida Memorial Cemetery. The agreement authorized the use of the names of the two funeral homes and authorized sales presentations to be made by salesmen employed by Mr. Crowe and his business organization to the general public to sell a product known as the "Eternal Rest Vault." Mr. Weld agreed to execute funeral service certificates for issuance by Mr. Crowe's organizations to purchasers of the Eternal Rest Vault in which Brevard Funeral Home North and Brevard Funeral Home South guaranteed to perform services constituting a complete funeral to be performed by one of said funeral homes at the time of need for a fixed price to be paid at the time of need. During the first half of 1976 Mr. Crowe's salesmen did in fact use the names and reputations of Brevard Funeral Home North and Brevard Funeral Home South in their sales presentations to the general public and their direct sales campaign. Mr. Weld executed funeral service certificates which were delivered to Mr. Crowe's customers by Mr. Crowe's business organizations.
Mr. Weld and Brevard Funeral Home North and Brevard Funeral Home South performed funeral services pursuant to said funeral service certificates.
Respondents Jimmie F. Prevatt and George W. Ammen are two of the current owners and are licensed funeral directors in charge of Brevard Funeral Home North and Brevard Funeral Home South. They did not negotiate the aforesaid agreement between Mr. Weld and Mr. Crowe but they had full knowledge of the agreement including the name of the respective funeral homes in the sales
presentation of Mr. Crowe's salesmen and the use of the names of the funeral homes on the funeral service certificates.
Respondents Prevatt and Ammen performed the duties of funeral directors pursuant to the agreement between Mr. Weld and Mr. Crowe.
Respondent Richard K. Miller is employed as a funeral director of the Brevard Funeral Home South and was a consultant by Mr. Crowe to his business organizations prior to the filing of the Complaint by the Petitioner.
Mr. Miller consulted with Mr. Crowe and Mr. Weld regarding the sales presentation used by Mr. Crowe's salesmen in the marketing of the Eternal Rest Vault. He reviewed the form of the funeral certificates that were to be issued pursuant to said sales and at least once accompanied the salesmen during a sales presentation to a customer.
Prior to the institution of the Complaint, Mr. Gene Crowe had acquired a distributorship for a product known as "Eternal Rest Vault." The sales concept used in marketing the Eternal Rest Vault is based upon the representation that the total cost of an entire funeral can be reduced by using the Eternal Rest Vault to serve as both the casket and a burial vault. Sale of the vault is directly to the public based on a preneed sale. Telephone solicitation and sales calls are made in the homes of prospective customers by Mr. Crowe's team of salesmen. The Eternal Rest Vault is intended to serve as both a casket and a vault and requires special arrangements in connection with the funeral services involved. The base of the Eternal Rest Vault incorporates a slumber bed upon which the dead human body lies. The sides and top of the vault are not used during the funeral services itself. A catafalque, a bottomless casket, is set on the base of the vault around the slumber bed and during the funeral service the body is lying in the catafalque on the slumber bed. After the funeral service is over, the catafalque is removed and the sides and top of the vault are then placed upon the base of the base of the vault and sealed. The vault is then buried in the grave. This system requires special equipment and services to be performed by the funeral home performing the funeral services.
In order to be sure of a funeral home willing to perform the special services required of the Eternal Rest Vault and in order to assure potential customers of a fixed price at the time of need of a funeral service involving Eternal Rest Vault, the total funeral concept is an important integral part of the overall marketing package included in the sale of the product and the agreement between Mr. Crowe and Mr. Weld. The terms of the agreement entered into between Mr. Crowe and Mr. Weld included an arrangement whereby Mr. Crowe's salesmen would be authorized to include in their sales presentation, an assurance to their potential customers of the Eternal Rest Vault that Brevard Funeral Home North and Brevard Funeral Home South would provide funeral services involving use of the Eternal Rest Vault. The sales presentation described in the sales kit used by Mr. Crowe's salesmen during the first part of 1976 includes the language that was used by the salesmen who describe Brevard Funeral Home North and Brevard Funeral Home South as the finest funeral homes in the community with very fine reputations. The presentation included a copy of a funeral service certificate naming Brevard Funeral Home North and Brevard Funeral Home South as funeral homes in the community that were guaranteed to service the Eternal Rest Vault, a funeral service certificate was executed by Mr. Weld and mailed by Mr. Crowe's staff to the purchaser. The funeral service certificate stated a fixed price for which Brevard Funeral Home North and Brevard Funeral Home South would at the time of need provide a funeral service
to the named certificate holder. The results of the arrangement included in the agreement between Mr. Weld and Mr. Crowe have been the sale of some twenty-six hundred (2,600) Eternal Rest Vaults in Brevard County and several funeral services provided by Brevard Funeral Home North and Brevard Funeral Home South pursuant to previously issued funeral service certificates for services for purchasers of the Eternal Rest Vaults.
Respondents Jimmie F. Prevatt and George W. Ammen, the funeral directors in the home then owned by Mr. Weld, were told that they would be participating in the marketing arrangements included in said agreement. Mr. Prevatt and Mr. Ammen as funeral directors performed services consistent with the agreement between Mr. Weld and Mr. Crowe.
Respondent Richard K. Miller was employed during the first half of 1976 by Mr. Crowe, Florida Memorial Gardens, and Mr. Weld, Brevard Funeral Home South. He performed full time duties as a funeral director for Brevard Funeral Home South and at the same time was a paid consultant, with Florida Memorial Gardens. He participated in the business organization of Mr. Crowe as a consultant and at least on one occasion accompanied one of Mr. Crowe's salesmen on a sales call and observed the entire sales presentation made to a potential Eternal Rest Vault customer.
The names Brevard Funeral Home North and Brevard Funeral Home South, Respondent's establishments, were used on the certificates issued to various individuals as a result of the marketing of the Eternal Rest Vault.
The Hearing Officer further finds:
The agreement to allow the use of the names Brevard Funeral Home North and Brevard Funeral Home South is a valuable consideration and the use of the names was meant to secure business for the funeral homes and for the Florida Memorial Gardens, a cemetery, in the promotion of sales of the new type of vault.
The valuable consideration is apparent because the new type of vault requires a funeral home and the funeral directors prepared to render special service not necessary with the traditional type of funeral arrangements. To service the product, the participating funeral home must also have a catafalque in which the vault fits. It is a valuable consideration to agree to perform a service in a particular manner with a specified product.
The agreement between the then owner of the funeral homes, Mr. Weld, and Florida Memorial Gardens was strictly a business transaction and his object was to solicit more business for his funeral homes. The advice to the holder of the certificate that the two Respondent funeral homes would service the product they bought leads them directly to those funeral homes to perform the service for which they will pay at the prearranged price.
The Respondents Prevatt and Ammen were fully advised of the agreement which involved the funeral homes in which they were the licensed funeral directors. Both Respondents benefited monetarily by the business thus secured and as new owners benefit from these business efforts and solicitations of the former owner, Mr. Weld. The continuation of the servicing of the product provided for in the certificates is a continuation of the solicitation effort started by Mr. Weld at the time of the original agreement.
The printed certificate is entitled "Funeral Service Warrant" and states "The basis or legal representatives of the holder of the warrant shall be entitled to receive a unit of service from their choice of Brevard Funeral Home South, Brevard Funeral Home North or Florida Memorial Mortuary for:" and the name of the customers is then inserted after the sale is made. The ultimate emoluments of the sale go both to the Florida Memorial Mortuary and later, at the tire of death, to the participating funeral homes. Certificates are not presently being issued.
On at least two contracts, after the Respondent funeral homes had been sold to Respondent Prevatt and Respondent Ammen, to wit December 2, 1976, the customers were advised by letter from the President of Florida Memorial Gardens, Gene Crowe:
"If you will take your Funeral Service Certificate to Brevard Funeral Home North, 1450 Norwood Avenue, Titusville, I am sure they will fully explain all services and make arrangements to accept whatever monies
you may wish to pay against the final funeral costs of which your certificate calls for.
If there is any further questions after you have contacted Brevard Funeral Home North, please do not hesitate to call us."
It is self evident that the purpose of the Funeral Service Warrant or certificate was to solicit business for the Respondent funeral homes as well as Florida Memorial Gardens.
Respondent Miller was fully advised of the agreement executed by Mr. Weld and Florida Memorial Gardens and as an employee of Florida Memorial Gardens consulted with and advised those engaged in selling the said vault to be serviced by the funeral home, Brevard Funeral Home South, in which he was also employed as a funeral director. His activities were attempts to secure business.
CONCLUSIONS OF LAW
The Hearing Officer has jurisdiction of the proceeding under Chapter 120, Florida Statutes.
Section 470.12 Grounds for revocation of license.- provides: "(1) EMBALMER.- Whenever it shall appear
to the board that any licensed embalmer practicing in the state has been guilty of any of the following acts, his license shall be revoked by the board:
(h) The licensee has paid or caused to be paid, any sum of money or other valuable consideration to any person to
secure business from or through such person.
(k) The licensse has violated any provision of this chapter.
(2) FUNERAL DIRECTOR.- Whenever it shall appear to the board that any licensed funeral director practicing in the state has been guilty of any of the following acts, his license shall be revoked by
the board:
(d) The licensee has paid, or caused to be paid, any sum of money or other valuable consideration to any person to secure business from or through such person.
(i) The licensee has employed, retained or otherwise engaged persons, including but not limited to owners, officers, stockholders, and employees of the funeral home with which the licensee is connected, or cemetery lot or supplies salesmen, to solicit busi- ness. For the purpose of this para- graph "to solicit" shall include but not be limited to the making of blanket offers of free or discounted funerals or ambulance services, where such ambu- lance service is owned, operated or controlled by a funeral director or funeral home, via certificates, cards, letters, or the like. . .
(p) The licensee has violated any provisions of this chapter.
FUNERAL HOME, MORTUARY, CHAPEL OR FUNERAL ESTABLISHMENT LICENSES.-
Whenever it shall appear that any person connected with a funeral home, mortuary, funeral chapel or funeral es- tablishment, including owners, partners, employees, or agents thereof, and in cases where such funeral home, mortuary, funeral chapel or funeral establishment is permitted by law to operate within a corporate framework, officers, directors, stockholders, agents or employees of
such corporations while acting as agent for or in behalf of or in furtherance of the interest of a licensed funeral home mortuary, chapel or funeral establish- ment has been guilty of any of the acts provided as grounds for revocation of an embalmer's license in subsection (1) and provisions therein, or has been guilty of any of the acts provided as grounds of a funeral director's license in sub- section (2) and provisions therein, the license of such funeral home, mortuary, chapel, or funeral establishment shall be revoked by the board."
The agreement by Gene Crowe, President of Florida Memorial Gardens, and Robert G. Weld, owner of Brevard Funeral Home North and Brevard Funeral Home South, was within the prohibition of Section 470.12(4)(a) and therefore the license of Brevard Funeral Home North and Brevard Funeral Home South is subject to be revoked. The sale of the funeral business to Respondents Prevatt and Ammen who were and still are the licensed funeral directors in charge of these homes and who performed services under the agreement and who as new owners and funeral directors of Brevard Funeral Home North and Brevard Funeral Home South performed services under the agreement does not remove the Respondent homes from the prohibition of the statute.
The acts of Respondents Prevatt and Ammen by performing services called for in the aforesaid agreement between Mr. Crowe and Mr. Weld and Florida Memorial Gardens and Brevard Funeral Home North and Brevard Funeral Home South violated Section 470.12(1)(h)(k) and Section 470.12(2)(d)(i)(p) inasmuch as they were registered funeral directors in charge of Brevard Funeral Home North and Brevard Funeral Home South and were employees and agents of the owner until they became owners of the funeral homes. The Respondents Prevatt and Ammen were the designated licensed funeral directors of the funeral homes at all times pertinent to this hearing and the Complaint of the Petitioner.
Chapter 21J-7.10 Improper Methods for Seeking Business. provides in part:
"(a) No licensee or intern or other per- son associated with a funeral establishment shall solicit business or shall offer any inducement, pecuniary or otherwise, for employing solicitors, agents, canvassers
or others for the purpose of securing or attempting to secure business. Such per- son shall not issue any gift certificate or discount certificate or offer any dis- count or business-getting plan, scheme or device not fully recognized and approved by the funeral profession as standard funeral service practice. Such persons shall not use donations, gifts, bonuses or acts of service designed to place the recipient in a position of obligation or indebtedness. Such persons shall not
transfer or offer to transfer any property or service as payment for or in token for business secured, influenced or otherwise provided or in promise thereof. Such per- sons shall not, for the purpose of getting business, call upon, telephone, write or otherwise communicate with or provide flowers or gifts to the sick or offer am- bulance service or other service to them; and such conduct shall be presumed to be for the purpose of getting business."
The agreement between Florida Memorial Gardens and Brevard Funeral Home North and Brevard Funeral Home South, the knowledge of Respondents Prevatt, Ammen and Miller of the requirements of the agreement, the sales kit, the activities of Mr. Crowe and Mr. Weld and other sales persons connected with the
