STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF FUNERAL DIRECTORS ) AND EMBALMERS, )

)

Petitioner, ) CASE NO. 77-1395

) Funeral Directors

vs. ) License No. 1478

) Embalmers License No. 1633 DONALD B. JOHNS d/b/a ) Establishment Operating DONALD B. JOHNS FUNERAL HOME, ) License No. 827

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in Room 248, Conference Room No. 1, County Courthouse, 201 Southeast Sixth Street, Ft. Lauderdale, Florida, at 1:00 p.m. on January 10, 1978, before Delphine C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Michael J. Dewberry, Esquire

Rogers, Towers, Bailey, Jones & Gay Florida Title Building Jacksonville, Florida 32202

For Respondent: Unrepresented

ISSUE

Whether the Funeral Director's license and/or the Embalmer's License of Donald B. Johns should be suspended or revoked. Whether the license of the Donald B. Johns Funeral Home should be suspended or revoked.

FINDINGS OF FACT

1. The Respondent, Donald B. Johns, holds a Funeral Director's license, No. 1473, and an Embalmer's license, No. 1633. The Donald B. Johns Funeral Home is licensed as No. 827.

   
   

2. A complaint was filed against Respondent by Petitioner for the violation of Section 470.10(6), 470.12(1)(k), and 470.12(2)(p), Florida Statutes, and the Respondent Donald B. Johns Funeral Home was charged with violations of Section 470.12(4)(a), 470.12(4)(c), and 470.30(6), Florida Statutes.

   
   

3. A request for a formal hearing for an appointment of a hearing officer was made by the Respondent, Donald B. Johns, and the Petitioner, State Board of

   Funeral Directors and Embalmers, petitioned for this hearing. Notice to appear were duly sent to the parties.

   
   

4. Mr. and Mrs. James Jesse and the decedent's grandmother, Mrs. Jesse, contacted the Donald B. Johns Funeral Home in arranging for the funeral of the decedent, Jason Jesse, an infant.

   
   

5. The Respondent, Donald B. Johns, as the funeral director and embalmer, appointed one Thomas Davis to make the arrangements for said funeral. The negotiations and arrangements included meeting the family at the funeral home; inquiry as to the desired services; quotation of the costs thereof; showing the family a casket catalog and ordering a casket for the family; requiring the family to complete the paperwork for the cremation; offering a cremation urn for sale; arranging a viewing for the family at the funeral home; advising the family on the availability of services at the cemetery selected by the family; discussing the availability of a sign-in book and name cards at the funeral home; attending services at the church; and attempting to correct defects in the casket and presentation of the body at the viewing.

   
   

6. The Respondent Donald B. Johns was aware of and permitted Thomas Davis to handle the funeral arrangements on behalf of the funeral home which the Respondent owned and operated as the licensed funeral director in charge, when he knew that said Thomas Davis was only an attendant and not licensed as a funeral director.

   
   

7. The funeral arrangements were not satisfactory to the family of the decedent and there were misunderstandings and unnecessary and trying experiences for the family.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 470.10(6) provides in part:

   
   

   No person not licensed as a funeral director or embalmer shall be permitted to perform the functions of a funeral director or embalmer as herein defined,...

   
   

9. Section 470.01, Definitions, provides in part:

   
   

   1. The term "embalmer," as used in this chapter, shall be construed to mean a person licensed to practice the profession of embalm- ing under the laws of the state.

   2. The term "funeral directing," as used in this chapter, shall be construed to mean the profession of directing or supervising funerals for profit, or the profession of preparing dead human bodies for burial or cremation by means other than embalming,

      or the disposition or shipping of dead human bodies, or the provision or maintenance of a place for the preparation of dead human bodies.

   3. The term "funeral director," as used in this chapter, shall be construed to mean a person required to be licensed to practice

      the profession of funeral directing under the laws of this state, who meets the public, dis- plays and sells or offers to sell funeral supplies, whether such sale or offer to sell involves a pre-need burial contract as defined and regulated by the laws of this state or

      for present use and delivery, who plans de- tails of funeral services with members of the family and minister or any other person responsible for such planning, or who directs, is in charge, or apparent charge of, and supervises such services in a funeral home, chapel, church, cemetery, or other place; who enters into the making, negotiation, or completion of financial arrangements for funerals whether for present or future need, including, but not limited to, the sale and selection of funeral supplies, or who uses

      in connection with the profession of funeral directing the words or terms "funeral director, "undertaker,""funeral counselor,""mortician," or any other word, term, or picture or combina- tion thereof when considered in the context in which used, from which can be implied the

      practicing of the profession of funeral directing or that the person using such word, term, or picture can be implied to be holding himself out to the public as being engaged in the profession of funeral directing.

      
      

10. Section 470.10(1)(k) and Section 470.12(2)(p) provide that it shall be grounds for revocation of a license of an embalmer and funeral director for the licensee to violate a provision of Chapter 470, Florida Statutes.

    
    

11. The Respondent, Donald B. Johns, violated Section 470.10(6) by permitting Thomas Davis, to perform the duties of a funeral director. As a result of the violation of Section 470.10(6), the Respondent, Donald B. Johns, violated Sections 470.12(1)(k) and Section 470.12(2)(p).

    
    

12. The Respondent, Donald B. Johns, is subject to the penalties provided in the Florida Statutes, Section 470.12 and 470.34 and Rule 21J-9.03, Florida Administrative Code. The penalties provided in the foregoing statutes and rule provide for the suspension of the license of an embalmer and funeral director and for the suspension of the license of a funeral home. The foregoing statutes also provide for revocation and for a fine.

RECOMMENDATION

Revoke the licenses of Donald B. Johns and the Donald B. Johns Funeral Home, impose a fine under Section 470.34 in an amount not to exceed $1,000.00.

DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville Florida 32202

Donald B. Johns 3890 Andrews Avenue

Ft. Lauderdale, Florida 33309

Docket for Case No: 77-001395

Orders for Case No: 77-001395