STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF FUNERAL DIRECTORS ) AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1698

)

CARL F. SLADE, F.D., ) VISTA'S CUBAN-AMERICAN FUNERAL ) HOME, LTD., and RICHARD H. )

CLARK, F.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the Collins Building on Gaines and Adams Streets in Tallahassee, Florida, at 10:00 a.m. on February 6, 1979, before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Dewberry, Esquire

1300 Florida Title Building Jacksonville, Florida 32202

For Respondent: R. G. Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

ISSUE

Whether the licenses of the Respondents, or any of them, should be revoked, annulled or suspended, or whether the Respondents, or any of them, should be otherwise disciplined for "funeral directing" at an unlicensed "funeral establishment."

FINDINGS OF FACT

1. Respondent Carl F. Slade holds funeral director's license number 588 and embalmer's license number 733; Respondent Richard H. Clark holds funeral director's license number 1057 and embalmer's license number 1225; Respondent Vista's Cuban-American Funeral Home, Ltd. holds establishment operating license number 1068. Respondent Slade is the licensed funeral director and embalmer in charge of Respondent Vista's Cuban-American Funeral Home, Ltd. Vista's Memorial Gardens Cemetery has a building on its premises but is not licensed.

   
   

2. Respondent Richard Clark is employed, and has been so employed at all times pertinent to this hearing, by both Respondent Vista's Cuban-American

   Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery. He performs services for both entities but does not work at the funeral home location. Respondent Clark is regularly employed on a forty (40) hours per week basis at the Vista's Memorial Gardens Cemetery and has his office in that location. The locations of Respondent Vista's Cuban-American Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery are several miles apart on Red Road in the Miami, Dade County, area.

   
   

3. An administrative complaint was filed against Respondents by Petitioner, State Board of Funeral Directors and Embalmers, on September 8, 1978, alleging that the Respondents were in violation of the statute prohibiting solicitation and, through Respondent Clark, were "directing funerals" at an unlicensed "funeral establishment." The Respondents requested an administrative hearing. A motion to dismiss by the Respondents was denied.

   
   

4. At the time of the hearing the charges involving solicitation were abandoned by the Petitioner Board.

   
   

5. Vista's Memorial Gardens Cemetery is a division of Pershing Industries, Inc., an interstate public stock company. Pershing Industries, Inc. is an 85 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. The funeral home is located at 1825 NW Red Road, and the cemetery is located at 14200 NW Red Road. The general manager of the cemetery is also a general manager of the funeral home. The other general partner is funeral director, Respondent Carl F. Slade, who is also a 15 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. Respondent Slade owns no stock in Pershing Industries, Inc.

   
   

6. The Respondent funeral home is licensed to operate a funeral establishment at 1825 NW Red Road and 57th Avenue in Hialeah, Florida. The building at Vista's Memorial Gardens Cemetery at 14200 Red Road, where Respondent Clark works, has a display room containing four caskets for selection by the customers but has no funeral parlor or embalming room.

   
   

7. The duties of Respondent Clark other than the sale of plots at the cemetery include:

   
   

   1. Meets the public;

   2. Discusses funeral arrangements with families and financing, whether for present or future need;

   3. Collects details of families' desires for funerals and information required for the removal of remains and release to a funeral home, and information required for the completion of death certificates required by state law;

   4. Displays and offers for sale caskets from a display area within the building on the cemetery premises;

   5. Forwards information collected and details regarding preliminary arrangements made at the cemetery on forms provided by Respondent Vista's Cuban-American Funeral Home, Ltd. to the funeral home for handling; and

   6. Presides at and assists other members or

      employees of Respondent Vista's Cuban-American Funeral Home, Ltd. in services at the cemetery.

      
      

8. On a day prior to September 8, 1978, Ms. Louise Pakenhem went to Vista's Memorial Gardens Cemetery where Respondent Clark was employed. She told Clark her husband, John Pakenham, was critically ill and negotiated a contract with Clark. Ms. Pakenham paid $25.00 down and agreed to pay the balance at the time of her husband's death. She discussed the funeral arrangements with the Respondent, which resulted in a prearrangement. Respondent Clark secured Ms. Pakenham's signature on a prearrangement contract and on a form to release her husband's body to the funeral home. Clark obtained the necessary information for a death certificate. He then sent the form and said information to Respondent Vista's Cuban-American Funeral Home, Ltd. All necessary items had been done with the exception of payment for the services in the amount Respondent Clark had estimated would be needed when Mr. Pakenham died.

   
   

9. On the day after the contract and arrangements had been made, Ms. Pakenham, who was in fact a widow, cancelled both the burial rights contract and the arrangements by certified letter. The cemetery and Respondent funeral home cancelled both contracts and returned the $25.00.

   
   

10. It is immaterial that Ms. Pakenham deceived Respondent Clark as to her need for a professional funeral director.

    
    

11. Respondent Slade receives at his place of business at Respondent Vista's Cuban-American Funeral Home, Ltd. information on funerals from Respondent Clark. Respondent Slade arranges for transportation of bodies and the preparation thereof, and at times supervises and directs funerals in the chapel of Respondent Vista's Cuban-American Funeral Home, Ltd. and at Vista's Memorial Gardens Cemetery.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

    
    

13. Section 470.01 Definitions.-- provides as as follows:

    
    

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

       
       

    2. The term "funeral director," as used in this chapter, shall be construed to mean a person re- quired to be licensed to practice the profession of funeral directing under the laws of this state, who meets the public, displays 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 details 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 pro- fession of funeral directing the words or terms "funeral director," "undertaker," "funeral coun- selor," "mortician," or any other word, term, or picture or combination thereof when considered in the context in which used, from which can be im- plied 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...

    
    

    1. The term "funeral home," "mortuary," "funeral establishment," or "funeral chapel" shall be con- strued to be a place at a specific street address or location where the profession of funeral direc- ting and embalming, as defined in this chapter, is practiced in the care, planning and preparation for burial or cremation or transportation of dead human bodies. All of such places shall consist of and shall maintain the following facilities:

       1. A chapel or parlor in which funeral services may be conducted.

       2. A preparation room equipped with a sanitary floor and necessary drainage and ventilation

          and containing necessary instruments and supplies for the preparation and embalming of dead human bodies for burial or transportation.

       3. A display room containing a stock of caskets and funeral supplies.

          
          

    2. As used herein, the word "board" shall be con- strued to mean and refer to the State Board of Funeral Directors and Embalmers.

    
    

14. The Vista's Memorial Gardens Cemetery and the building on the premises is a place at a specific street address and location where the profession of funeral directing is practiced in the care of add planning for burial of dead human bodies. The business is a "separate entity" and a "funeral establishment."

    
    

15. Respondent Clark practices funeral directing at the separate entity, Vista's Memorial Gardens Cemetery, where he has his offices, plans for funerals, and displays and sells caskets. He forwards the remainder of each funeral transaction to Respondent Slade and to Respondent Vista's Cuban-American Funeral Home, Ltd., which has the facilities for transportation, services, and preparation of bodies that the building at the cemetery does not have.

16. The offices and display room at Vista's Memorial Gardens Cemetery comprise a "funeral establishment" at which funeral directing is practiced, but said "funeral establishment" does not have the remaining facilities required by the foregoing statutes and is not eligible for licensure. The "funeral establishment" is located in a cemetery contrary to Section 470.10(8), Florida Statutes.

    
    

17. Section 470.34 Penalties and fines.-- provides as follows:

    
    

    As an alternative, supplemental, or additional method for enforcement of the provisions of this chapter, the board may, after notice and hearing, impose a penalty against any licensee for viola- tion of this chapter or any rule or regulation promulgated by the board. No penalty so imposed shall exceed $1,000 for each count or separate offense, and all penalties imposed and collected shall be deposited pursuant to the provisions of s. 215.37.

    
    

18. Section 470.12, Florida Statutes, prohibits embalmers and funeral directors from committing acts in violation of Chapter 470, Florida Statutes, and Section 470.32 authorizes the Petitioner Board to enforce the provisions of law by suspension or revocation of licensure. The Petitioner Board has the authority to fine the Respondents and to require compliance with the statutes pursuant to Section 470.34, supra.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that:

1. Respondent Carl F. Slade and Respondent Richard H. Clark cease and desist from practicing funeral directing at Vista's Memorial Gardens Cemetery;

   
   

2. A fine be imposed on Respondent Slade and Respondent Clark of $250.00 each; and

   
   

3. The license of Respondent Vista's Cuban-American Funeral Home, Ltd. be suspended until the funeral business in the unlicensed funeral establishment at Vista's Memorial Gardens Cemetery is discontinued, or until such time as no funeral business is referred to Respondent Vista's Cuban-American Funeral Home, Ltd. from that establishment.

DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

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

R. G. Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF FUNERAL DIRECTORS AND EMBALMERS

STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS,

Petitioner,

vs. CASE NO. 78-1698

CARL F. SLADE, F.D.,

VISTA'S CUBAN-AMERICAN FUNERAL HOME, LTD., and RICHARD H. CLARK, F.D.,

Respondent.

/

FINAL ORDER

Pursuant to notice, the Recommended Order issued in this matter by Delphene

1. Strickland, Hearing Officer, dated July 7, 1979, attached hereto as Exhibit A, came before the Board of Funeral Directors and Embalmers on December 3, 1979, in Jacksonville, Florida, and in consideration thereof the Board finds and concludes as follows:

   
   

   1. The findings of fact contained in the Recommended Order are adopted by the Board and incorporated herein as findings of fact of the Board.

      
      

   2. The conclusions of law contained in the Recommended Order are adopted as the conclusions of law of the Board.

      
      

   3. Respondent, at the hearing before the Board, withdrew his Exceptions to the Findings of Fact contained in the Recommended Order. Respondent's Exceptions to the Conclusions of Law contained in the Recommended Order are denied based upon the fact that there is competent substantial evidence cited in

the Recommended Order to support the conclusions and the Recommended Order complied with essential requirements of law.

Based upon the findings of fact and conclusions of law, the Board adopts Paragraph Number Two of the Recommendation of the Hearing Officer. The Board specifically rejects Paragraph Numbers One and Three of the Hearing Officer's Recommendation as being injunctive in nature and outside the scope of statutory authority of the Board.

It is therefore, ORDERED AND ADJUDGED:

That Respondent Carl F. Slade pay a fine of $250.00, payable within twenty

(20) days from the date hereof, and that Respondent Richard H. Clark pay a fine of $250.00, payable within twenty (20) days from the date hereof.

DONE AND ORDERED this 11th day of December, 1979.

RONALD T. GIDDENS, CHAIRMAN

Board of Funeral Directors and Embalmers

Copies furnished to:

R.G. Maxwell, Esquire Michael Dewberry, Esquire

Joseph W. Lawrence, II, Assistant Attorney General

Docket for Case No: 78-001698

Orders for Case No: 78-001698