STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE BOARD OF FUNERAL DIRECTORS ) AND EMBALMERS, )
)
Petitioner, )
)
vs. ) CASE NO. 77-832
) WILLIAM E. MANKER, JR., AND ) MANKER FUNERAL HOME, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 20, 1977 and November 8, 1977 at Miami, Florida.
APPEARANCES
For Petitioner: Michael J. Dewberry, Esquire
1300 Florida Title Building Jacksonville, Florida 32202
For Respondent: Gus Efthimiou, Esquire
807 DuPont Building
Miami, Florida 33131
By Complaint filed May 2, 1977 the Florida State Board of Funeral Directors and Embalmers, Petitioner, seeks to revoke, suspend or otherwise discipline the Funeral Director's licenses and the Embalmer's licenses of William E. Manker, Jr. and Manker Funeral Home, Respondents. As grounds therefor it is alleged that Respondent employed Bobby Tillman and instructed him to solicit for a consideration the names and addresses of next of kin of bodies in the Dade County Medical Examiner's Office (hereafter DCMEO) and that at the instigation of Respondents Tillman offered to pay to an employee of the DCMEO money, to be supplied by Respondents, for such information; and that, in furtherance of his solicitation, money was actually paid.
At the hearing on July 20, 1977, Bobby Tillman, a duly subpoenaed witness failed to appear and, after the testimony of the other witnesses of Petitioner was received, the hearing was continued to November 8, 1977 at which hearing Tillman testified.
Exhibits 1 and 2 were admitted over objection at the first hearing upon testimony that Exhibit 2 was the original tape of the recorded telephone conversation between an employee of DCMEO and one Bobby at the Manker Funeral Home. Exhibit 1 is the transcription of that conversation. At the subsequent hearing the witness who had identified Exhibit 2 at the previous hearing acknowledged that the original Exhibit 2 was a different tape brought by mistake
from the Police Custody Room and a substitute Exhibit 2 was offered as a copy of the original tape which could not be located. Exhibit 1 was then identified as having been made from the copy. Ruling on the renewed objection to the admissibility of Exhibits 1 and 2 was deferred. For reasons noted in the Conclusions below Exhibits 1 and 2 are not admitted. At the initial hearing objection was made to the introduction of the two $5 bills (Exhibit 5) allegedly given by Tillman to the employee of DCMEO on the grounds that the evidence failed to show that these were the two bills passed. This objection was overruled subject to the transcript of the testimony showing that the employee testified that he gave the money to the police officer who arrested Tillman immediately following their meeting. A review of the record disclosed no such testimony by this witness; accordingly the objection to the admissibility of Exhibit 5 is sustained.
Three witnesses were called by Petitioner, Respondent testified in his own behalf, and eight exhibits were offered into evidence. Objections to Exhibits 7 and 8 were sustained at the hearing and the objections to Exhibits 1, 2, and 5 which rulings were reserved at the hearing, are now sustained.
FINDINGS OF FACT
William E. Manker, Jr. and Manker Funeral Home are licensed as Funeral Director License No, 905 and Embalmer License No. 1007. Accordingly the Hearing Officer has jurisdiction over the Respondents and the alleged offenses.
In October, 1977 Hobby Tillman, a registered nurse who worked part time for Manker, told Louis C. Slater, a forensic technician at the DCMEO that he could make it worthwhile to Slater if he could provide information on bodies at the morgue which led to these bodies being turned over to Manker for interment. Manker suggested to Tillman that such representation be made to an employee of DCMEO.
Tillman was paid by Manker only for services he performed at specific funerals. No agreement was made between Manker and Tillman whereby the latter would receive additional compensation for any business he brought to the funeral home.
Tillman had worked for several other funeral homes in the Miami area and had picked up bodies at the DCMEO for these other homes. He was a salaried employee for House of Albert funeral home for a period of time but in October and November 1976 the only funeral home at which he was working was Mankers.
Slater reported this offer to his superiors who notified the Dade County Public Safety Department. The case was assigned to Detective Buckley and Sergeant Beirne who arranged for Slater to call Tillman at the Manker Funeral Home to accept his offer and arrange a meeting for the exchange of information for money.
On November 9, 1976 Slater called the number of Manker Funeral Home and asked to speak to Bobby. An individual purporting to be Tillman talked with Slater, and Manker was made aware of this conversation. This call was taped when both police officers assigned to this investigation were present in the room with Slater. During this conversation Slater stated he would accept Tillman's offer and would call later for an appointment to meet him. The tape and transcription thereof constituted Exhibits 2 and 1 respectively. The police officer who was present and transcribed a copy of this tape testified that the transcription was an accurate reproduction of the conversation; however, the
other police officer who was also present, testified that only Slater's voice could be heard in the room. Absent evidence of an open mike in the room the testimony that only Slater's voice could he heard by the police officer is obviously correct. No witness identified the voice purporting to be Bobby on the other end of the line; and Tillman, in whose presence the copy offered as the new Exhibit 2 was played, denied that the voice was his or that he ever talked to Slater over the phone.
On November 17, 1976 Slater called the Manker Funeral Home to speak to Hobby to set up a meeting to pass to him the name of a body at the morgue. At this point the testimony diverges. Slater testified the call was made between
12 noon and 1:00 p.m. Tillman testified that he was told the call came about 10:00 a.m. Slater testified he talked to Tillman while the latter's testimony was that he was working at his nursing job at the time of the call and didn't arrive at the funeral home until after 1:00 p.m. Upon Tillman's arrival at the funeral home he was advised by another Manker employee of the message received from Slater to meet him at the South China Cafe at 2:00 p.m. that day.
Tillman was in his nurse's uniform and was driven home by Manker to change clothes. Then he was driven by Manker to the South China Cafe, stopping en route at a drug store where Manker had a prescription filled and purchased sun glasses.
Upon arrival at the South China Cafe on Northwest Tenth Street Manker remained in the car while Tillman entered the cafe and met with Slater. Slater told Tillman he had the name of a body and next of kin and asked if Tillman would give him something for the information. Tillman left the cafe and went to Manker's car, spoke to Manker and returned to the cafe. Before returning to the table where Slater was waiting Tillman ordered a hot dog and coke and took these to the table where Slater waited.
With respect to these events again the testimony varied principally as to detail. Slater testified he didn't give the paper containing the fictitious name that had been supplied him by the police until after Tillman gave him ten dollars. Tillman testified he took the piece of paper with the names to show Manker from whom Tillman got twenty dollars. Part of this twenty dollars was used to purchase his hot dog and coke, ten dollars was given to Slater for the information and the balance was pocketed by Tillman.
Manker's version of the events was that Tillman wanted a ride to pick up a prescription at Jackson Memorial Hospital Pharmacy on Northwest Tenth Street across from the South China Cafe, and since he had to go in that direction to pick up his own prescription he agreed to take him. Manker drove Tillman home to change clothes then drove him to Northwest Tenth Avenue. Tillman came back to the car for a short visit to advise Manker he would be a few minutes longer, but according to Manker, Tillman made no request for money nor did he give him any money. Manker further testified he did not even know Tillman was to meet with Slater.
Slater had been wired for sound for the cafe meeting with Tillman but background noises rendered their conversation unintelligible to the police officer monitoring the conversation a few tables away. After the paper with the names had been exchanged for ten dollars, Slater, as a prearranged signal to the police of this fact, dropped a coin on the floor as he got up to leave. When exiting the cafe Tillman was arrested and booked at county jail.
A preliminary search at the jail did not produce the paper that had been given Tillman by Slater but shortly thereafter one of the wardens saw Tillman throw something in the waste basket which the warden retrieved and turned over to Detective Buckley who identified it as the paper he had given to Slater with the fictitious names.
Prior to his subsequent trial Tillman agreed with the State's Attorney that in exchange for a plea of guilty and testimony against Manker he would be given probation. Tillman pleaded guilty to offering a bribe and was placed on probation.
CONCLUSIONS OF LAW
With respect to the tape of the November 9, 1977 telephone conversation made by Slater to the Manker Funeral Home there was insufficient authentication of the parties thereto to render this conversation admissible. Recognizing the rule (Rule 34 Florida Evidence), that a letter properly addressed, stamped, and placed in the mails is presumed to have been received by the addressee, applies in a more limited respect to telephone calls, this rule at most creates a presumption that the person called long distance is the one answering. If such a presumption existed in the instant case it was rebutted by the testimony of Tillman that the voice on the tape was not his. This is particularly so where Slater could not identify the voice to whom he spoke. Furthermore the presumption that the call reached Manker Funeral Homes does not carry forward to further identify a part-time employee of Manker Funeral Home whose unrebutted testimony was that he had never spoken to Slater over the phone and was not even at the funeral home when the November 17th call was made by Slater. While the November 17 call was not taped Slater's testimony was that he called Tillman on that date to arrange for the meeting.
Exhibits 7 and 8 were objectionable for several reasons. Exhibit 7 was an affidavit given by Tillman. Tillman was present at the hearing, testified and was subject to cross examination. Accordingly, no basis existed for the hearsay contained in Exhibit 7 to be received.
Exhibit 8 was described as a series of correspondence and a previous investigation conducted by the Board of prior activities of Manker. No charges or convictions resulted from that investigation and without having read Exhibit
8 the description thereof when proffered into evidence showed it to be blatant hearsay and highly prejudicial to the Respondent.
Section 470.12 F.S. provides in pertinent part: "(1) EMBALMER. Whenever it shall appear to
the board that any licensed embalmer practicing
in this 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 consid- eration to any person to secure business from or through such person.
(k) The licensee has violated any provision of this chapter.
(2) FUNERAL DIRECTOR. Whenever it shall appear to the Board that any licensed funeral director
practicing in this 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 . . . to solicit business."
With respect to the alleged violations of Section 470.12 (1)(h) and 470.12(2)(d) and (i), the proof that Manker was the person who caused to be paid money to Slater for the purpose of procuring business rests solely on the testimony of Tillman. Although Tillman agreed to testify against Manker in consideration of him getting probation for his participation in the attempted bribe, this does not render his testimony inadmissible but does go to the weight to be accorded thereto.
Much of Tillman's testimony was corroborated by Manker. When Tillman arrived at the funeral home from his job as a nurse around 1:00 p.m. Manker drove him home to change clothes, then drove him to the rendezvous with Slater and waited in his car out side the cafe. Manker even acknowledged Tillman's visit to the car while Manker was waiting. Manker's denial of knowledge that Tillman was being taken to meet with Slater, that Manker had no knowledge of the offer of payment and his denial that he gave Tillman any money on November 17 or was aware of the offer made by Tillman to Slater is not credible.
On the other hand, a finding that Manker employed or engaged Tillman specifically to solicit business from Slater is not supported by competent and substantial evidence. Tillman was paid by Manker only for funerals in which Tillman participated. While "soliciting business" could include soliciting information leading to business there was no evidence that Tillman would receive any compensation or remuneration if he obtained information leading to business. Nevertheless the evidence supports the conclusion that the idea of "buying" information from DCMEO was acceptable to Manker; that he was aware of the telephone calls made by Slater to the Manker Funeral Home, including the November 17 call to set up the rendezvous; and that the he was a participant in the efforts of Tillman to solicit for the Manker Funeral Home.
From the forgoing it is concluded that William E. Manker, Jr. and Manker Funeral Home are guilty of violating Sections 470.12(1)(h) and (2)(d)
F.S. and are not guilty of violating Sections 470.12(2)(i) F.S. It is therefore,
RECOMMENDED that the licenses of William E. Manker, Jr. and Manker Funeral Home as embalmer and funeral director be revoked. It is further,
RECOMMENDED that the revocation be stayed for a period of three years at which time, unless sooner revoked for violation of any of the provisions of Chapter 470 F.S., William E. Manker, Jr. and Manker Funeral Home be restored to good standing.
DONE and ENTERED this 7th day of December, 1977, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Michael J. Dewberry, Esquire Florida Title Building Jacksonville, Florida 32202
Gus Efthimiou, Esquire 807 DuPont Building
Miami, Florida 33131
Issue Date | Proceedings |
---|---|
Feb. 23, 1978 | Final Order filed. |
Dec. 07, 1977 | Recommended Order sent out. CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Feb. 20, 1978 | Agency Final Order | |
Dec. 07, 1977 | Recommended Order | Respondent knew of employee's attempt to buy information about corpses in city morgue. Recommend revocation unless completes probation. |