STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF FUNERAL DIRECTORS ) AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1266

) JAMES E. COLLISON AND COLLISON ) MEMORIAL CHAPEL, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in Room 510, Southeast Bank Building, 201 East Pine Street, Orlando, Florida, on November 15, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The case was presented upon an Administrative Complaint filed by the Florida Board of Funeral Directors and Embalmers against James Collison and Collison Memorial Chapel, Ltd. This Administrative Complaint alleged that James Collison had employed, retained, or otherwise engaged persons to solicit business, contrary to the provisions of Section 470.12(2)(i), Florida Statutes, and had paid or caused to be paid any sum of money or other valuable consideration to any person to secure business from or to such person contrary to the identical language of Section 470.12(1)(h) and (2)(d) , Florida Statutes. This Administrative Complaint also charged Collison Memorial Chapel, Ltd. with a violation of Section 470.12(4)(a), based upon the allegations against Collison, the licensed funeral director and embalmer in charge and owner and operator of Collison Memorial Chapel, Ltd.

Substantial competent evidence was presented by the Board, and it was admitted by the Respondent Collison that Collison had paid $191.87 to Orange County Memorial Society, a nonprofit Florida corporation hereafter referred to as OCMS, to reimburse OCMS for a mailing to its members. No substantial and competent evidence was presented showing that Collison had employed, retained or otherwise engaged OCMS to solicit business. The recommendation in this case is based upon the legal interpretation given to the identical provision in Section 470.12(1)(h)(2)(d), Florida Statutes.

APPEARANCES

For Petitioner: Michael J. Dewberry, Esquire

Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202

For Respondent: W. Thomas Lovett, Esquire

Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801

FINDINGS OF FACT

1. James E. Collison is a licensed embalmer and funeral director, and Collison Memorial Chapel, Ltd., is a licensed funeral home holding licenses issued by the Board of Funeral Directors and Embalmers.

   
   

2. Orange County Memorial Society (OCMS) is a nonprofit corporation. OCMS exists for the purpose for providing information and assistance to its members on low-cost funeral arrangements. OCMS has approximately 750 members and is funded through their small initial membership or transfer fee.

   
   

3. Thomas E. White, who is employed full-time as an engineer by Stromberg Carlson was president of OCMS at all times relevant to this complaint. His wife, Helen, was secretary of this organization. At the time White assumed the presidency of OCMS, OCMS had existing arrangements with two local funeral homes. Upon joining, members were assigned to one or the other of these establishments, based upon the members' geographical residential location. Both the establishments provided the same services at essentially the same prices.

   Prices for various services from these homes had been made available to the members of OCMS.

   
   

4. Mr. White was concerned about the geographic assignment of OCMS members and desired to alter this arrangement and allow members to choose the funeral home which they desired.

   
   

5. In approximately August of 1976, James Collison contacted Mr. Harris, the attorney for OCMS, one of the original incorporators, and a former president of the organization. Collison advised Harris that he desired to participate with OCMS in providing services to its members. Mr. Harris wrote Mr. White, who eventually contacted Collison to discuss Collison Memorial Chapel's participation. In this regard, Collison provided Mr. White a list of funeral services which Collison Memorial Chapel could provide together with cost in a letter dated September 4, 1976. Mr. White and another member of the Board visited with Collison and inspected Collison Memorial Chapel. Thereafter Mr. White presented Collison's proposal to the Board of Directors of OCMS. Collison's offer was accepted, and this fact was subsequently communicated to Collison by White. At this time, Collison was advised that OCMS would advise its members of Collison Memorial Chapel's participation by letter when the notice of the organization's annual membership meeting was mailed. An earlier mailing could not be made by OCMS due to a lack of funds.

   
   

6. Collison desired to make Collison Memorial Chapel's participation immediately known to the membership of OCMS, and offered to White to pay for the additional mailing. Mr. White accepted this offer, feeling that this was in the best interest of the membership of OCMS and permitted earlier implementation of his plan to permit members to choose the funeral home with which they desired to make their arrangements. The mailing was handled solely by White and his wife, and at all times, OCMS, through its president, maintained total control of the content of the materials sent to its members. This mailing contained a letter from Mr. White to the members, a comparative list of services and prices offered by the three participating funeral homes, a stamped, self-addressed envelope to Collison Memorial Chapel, and a form indicating that members desired to change his or her selection of a funeral home to Collison Memorial Chapel. The letter to the members was composed by Mr. White. The comparison of services and prices was prepared by Collison at Mr. White's request. The change form was prepared by Collison; however, both Mr. and Mrs. White stated that they had made some minor changes in its format after they received Collison's draft copy. White,

   in response to the specific question regarding why the form had not been prepared to permit a member to change between the two other participating funeral homes, stated that he had not mailed the form in that format because he did not believe any of the members would elect to change their membership among the two original participating homes.

   
   

7. The fact that Collison obviously wanted communicated to the OCMS members was the fact that his funeral home was participating with OCMS because the prices which were quoted to OCMS members were the same being advertised to the public generally. White, as president of OCMS, desired to implement his project of permitting freedom of selection among members of OCMS, and to advise members that Collison's funeral home was now a participating home. Collison's offer was a means to both White's and Collison's objections.

   
   

8. The Whites had the material printed, prepared the mailing, and sent Collison a statement of cost of the mailing. Collison paid these costs in the amount of $191.87 directly to OCMS.

   
   

9. As a result of this mailing, approximately thirty (30) of the 750 members elected to change their arrangements in favor of Collison Memorial Chapel, Ltd. Several others elected to make other changes by contacting White and having new forms sent to them.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Board of Funeral Directors and Embalmers has authority to file the Administrative Complaint against the Respondents and to adjudicate the issues presented, pursuant to Chapter 470, Florida Statutes, and in the manner provided in Chapter 120, Florida Statutes.

    
    

11. There is no substantial and competent evidence to support the allegation that the Respondent, Collison, employed or retained or otherwise engaged OCMS to solicit business contrary to provisions of Section 470.12(2)(i), Florida Statutes. The evidence clearly shows that OCMS was never an employee or agent of Collison, and always acted independently pursuing its own ends consistent with its organizational purposes.

    
    

12. The evidence does show that Collison did pay $191.87 to OCMS to cover expenses by OCMS involved in mailing information to its members. The evidence clearly indicates that Collison offered to pay this cost to inform the members of OCMS that Collison Memorial Chapel, Ltd. was a participating funeral home of OCMS six months sooner than OCMS would have made the announcement due to its lack of funds to pay for more than one mailing annually. It is a reasonable presumption that Collison did this to obtain business from OCMS during that six- month period. Therefore, Collison sought business from and through OCMS. However, by doing so, did Collison violate Section 470.12 (1)(h) and (2)(d), Florida Statutes.

    
    

13. Section 470.12(1)(h) and (2)(d), which are identical, provide that the license of an embalmer and funeral director may be revoked for the following:

    
    

    "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 to such person."

14. The Board argues that this provision is applicable and creates an absolute prohibition against the payment of any sum of money to any person to secure business from or to such person. The Board cites State Board of Funeral Directors and Embalmers vs. National Chapels, Inc., 249 So.2d 677 (1971), for its authority. Respondents argue that this provision is not applicable because it was intended to prohibit solicitation or referrals by "steerers," "cappers," "canvasers," and other such agents. In addition, the Respondents argued that the payment by Collison was for advertising, an activity permitted by Chapter 470, Florida Statutes.

    
    

15. In National Chapels, supra, the Supreme Court interpreted the provisions of Chapter 470.12(2)(d) and (i), Florida Statutes. In that case, National employed numerous unlicensed persons to solicit business and perform functions reserved for licensed funeral directors. National attacked the referenced provisions as being violative of the Fifth and Fourteenth Amendments to the U.S. Constitution, and Section 1, Declaration of Rights, Florida Constitution, (1985); and violative of National's right to secure and solicit business which is a property right denied by these statutory provisions which has no substantial relationship to the public health, safety, moral or welfare. The lower court entered an order reversing the State Board's action revoking National's license. The lower court, having determined the legislative purpose to be protecting grief stricken and emotional survivors from active solicitation of dead bodies, found that the provisions of Section 470.12(2)(d), were too broad as applied by the State Board because it prohibited payment to any employee of a licensee; and, therefore, was an invalid exercise of a police power to regulate a vocation for the protection of the health, safety and welfare of the public.

16. The Supreme Court finding the lower court in error, stated as follows: " ...The legislature has a valid interest

    in safeguarding against the undue commer- cialization and exploitation of death and its trappings. We find no constitutional offense in legislation specifically requir-

    ing that this activity be handled exclusively by those who are licensed and regulated for for this purpose. Nor do we think that this interest is limited to the protection of 'grief stricken and emotional survivors... '" (Emphasis supplied) 249 So.2d 677, 678.

    
    

17. The Supreme Court went on to point out that advertising was specifically permitted by Chapter 470, and that employees of a licensee may be compensated without violating the provisions of subsection (d) as long as they do not perform activities reserved to licensees.

    
    

18. The Supreme Court's determination that the legislation was not constitutionally objectionable is based upon its determination that the activities of the numerous persons retained by National were activities to be handled exclusively by those who are licensed and regulated under Chapter 470. Further, there is justifiable public interest in regulating this activity to prevent undue commercialization and exploitation of death. Applying the decision in National, supra, to the instant facts, whether the Respondents violated the provisions of Section 470.12(1)(h)(2)(d) must be determined upon whether the activity in which the Respondents engaged was limited to licensees; whether the persons engaged in the activity were employees or agents of the

    Respondents; and whether it constituted an undue commercialization or exploitation of death.

    
    

19. Collison's activity was advertising Collison Memorial Chapel's participation with OCMS to members of OCMS. Advertising is specifically permitted by Chapter 470, if it is not misleading. There is no allegation in the complaint that the material provided members of OCMS was misleading. The activity engaged in by OCMS was not the sale of services and funeral supplies, as "sale" is used and this activity limited to licensed funeral directors by Section 470.01(4), Florida Statutes; but was rather informing its members of a new participating funeral home. As stated above, the facts of this case do not support any finding that OCMS was an employee or agent of Collison or Collison Memorial Chapel. Further, considering the nature of the information disseminated and its limitation to members of OCMS, this activity does not lend itself to the undue commercialization and exploitation of death and its trappings. This activity would be analogous to advertising in any organizational journal or newsletter paid for by the licensee. Collison did not make payment to OCMS to refer business to Collison Memorial Chapel, in which case there would have been a violation.

    
    

20. The extension of Chapter 470.12(2)(d) and (1)(h) to the facts in the incident case go beyond the limits of the statutory application defined by the Supreme Court in National, supra. Based upon the Court's interpretation of these provisions, the activity of Collison in reimbursing OCMS $191.87 for mailing of information to its membership does not constitute a violation of Section 470.12(1)(d) and (1)(h), as alleged in the Administrative Complaint. Neither of the allegations having been proved against Collison, the allegation that Collison Memorial Chapel, Ltd. is in violation of Section 470.12(4)(a) is also not proven.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against James E. Collison and Collison Memorial Chapel, Ltd. be dismissed.

DONE and ORDERED this 1st day of February, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

W. Thomas Lovett, Esquire Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801

Michael J. Dewberry, Esquire

Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202

Mr. R. C. Blanton, Coordinator Funeral Directors and Embalmers Suite 208, Building B

6501 Arlington Expressway

Jacksonville, Florida 32211

Docket for Case No: 77-001266

Orders for Case No: 77-001266