STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE BOARD OF FUNERAL DIRECTORS ) AND EMBALMERS, )
)
Petitioner, )
)
vs. ) CASE NO. 79-016
) EDDIE L. SOWELL, JR., d/b/a ) SOWELL'S FUNERAL HOME, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 1:00 p.m., on February 12, 1979, in Suite 205, Building B, 6501 Arlington Expressway, Jacksonville, Florida.
Petitioner was represented by Michael J. Dewberry, Esquire 1300 Florida Title Building, Jacksonville, Florida. Respondent appeared in his own behalf.
Petitioner, State Board of Funeral Directors and Embalmers (hereafter Board), seeks to revoke the Funeral Director and Embalmer licenses of Respondents Eddie L. Sowell, Jr., and Sowell's Funeral Home (hereafter collectively Sowell), and impose a fine of $1,000.00 against each license for alleged violations of Chapter 470, Florida Statutes, regulating funeral directors and embalmers.
FINDINGS OF FACT
Respondent, Sowell, is currently a licensed funeral director and embalmer in the State of Florida. Respondent, Sowell's Funeral Home, is a licensed funeral establishment in the State of Florida. Sowell is the licensed funeral director and embalmer in charge of Sowell's Funeral Home.
On April 19, 1978, Mr. Eston Singletary died in Jacksonville, Florida. His divorced wife, Gussie Wright Singletary, called the Reverend Charles James Crosby to come to her former husband's death bed. Reverend Crosby is minister of the New Trinity Baptist Church in Jacksonville, and, while never a licensed funeral director and embalmer, he worked for the Sowell Funeral Home from 1949 to 1952 and from 1960 to 1968. Reverend Crosby has no financial interest in Sowell Funeral Home.
Mrs. Singletary claims that Reverend Crosby represented to her that he owned Sowell's Funeral Home. It was for this reason, says Mrs. Singletary, that she contacted Reverend Crosby and agreed to turn her former husband's body over to Sowell's. However, there is no evidence to establish that Sowell either authorized or knew about such a representation on the part of Reverend Crosby, if it in fact occurred.
Upon the advice of Reverend Crosby, Mrs. Singletary released her former husband's body to Sowell at the hospital. Mrs. Singletary did not have adequate funds to cover the expense of the funeral preparations so Reverend Crosby paid for the funeral and Mrs. Singletary agreed to reimburse him. Mrs. Singletary asked Reverend Crosby to handle the details of the funeral for her.
Thereafter, Sowell handled the body of Eston Singletary, embalmed it and signed the required death certificate as funeral director. The evidence shows that in connection with Singletary's death, the Reverend Charles Crosby met with the family of the deceased, including Mrs. Singletary; assisted the deceased's family in planning the details of the funeral; advised the family regarding the release of the body to Sowell; arranged for flowers for the funeral; accompanied the family to a local casket company for its selection of a casket in which to inter the deceased; met with members of the family to collect information for completion of the required death certificate; and received case and checks from family members and other sources in an amount exceeding Sowell's charges by $142.76.
When Sowell was contacted by Reverend Crosby, Crosby represented that he was acting on behalf of the deceased's family. It was to Reverend Crosby and not to the family that Sowell delivered the receipt for the services he rendered.
On April 27, 1978, Reverend Crosby, on behalf of the family and Sowell, on behalf of the funeral home, entered into a contract for services to be provided in connection with the funeral of Eston Singletary.
Reverend Crosby obtained personal information regarding the deceased from the family for Sowell. Sowell then arranged for the obituary notice.
The night before the funeral there was a viewing of the deceased at the funeral home. Reverend Crosby was there escorting the widow. The following day, Reverend Crosby served as master of ceremonies at deceased's funeral which was conducted at a church other than the one with which the Reverend Crosby was associated.
Sowell was in attendance at the deceased's funeral. While the widow testified that she had not seen Sowell at the funeral, such testimony is insufficient to overcome Sowell's testimony that he did attend the funeral since the widow, having never met Sowell, would not have recognized him if she had seen him.
Sometime subsequent to the funeral, the widow went to the funeral home to get a receipt. Since the funeral home was closed at the time, she called Sowell at his home. Sowell informed her that the receipt had been given to Reverend Crosby.
With regard to the remaining charge, the evidence was incontrovertible that the funeral directors and embalmers licenses of Sowell were suspended pursuant to section 470.10(1), Florida Statutes, when he performed the duties of a funeral director in connection with the death and funeral of Willy D. Whitehead on or about September 15, 1978. The suspension was occasioned by the timely payment of the annual license fee. Payment was made of renewal on October 19, 1978, at which time the licenses were reinstated.
CONCLUSIONS OF LAW
Eddie L. Sowell, Jr., and the Sowell Funeral Home are subject to the jurisdiction of the State Board of Funeral Directors and Embalmers.
The charges against Sowell fall into two categories. First, that Sowell performed the duties of a funeral director at a time when his licenses to practice funeral directing and embalming were suspended for nonpayment of the annual renewal fee. Second, that Sowell permitted Reverend Crosby to perform the duties of a funeral director and that Sowell employed, commissioned or retained Reverend Crosby for the personal solicitation of funeral business. Sowell Funeral Home is charge with violations of Chapter 470, Florida Statutes, by virtue of Sowell's alleged conduct as its licensed funeral director.
Based upon the uncontroverted evidence it is concluded that Sowell is guilty of violating Section 470.10(6), Florida Statutes, by performing the duties of a funeral director at a time when his licenses to practice funeral directing and embalming were suspended pursuant to Section 470.10(1), Florida Statutes.
The remaining charges require more detailed analysis. It is alleged that Sowell permitted Crosby to perform the duties of a funeral director and that Sowell employed, commissioned or retained Crosby for the personal solicitation of funeral business. There is a complete absence of evidence to establish that Sowell employed, commissioned or retained Reverend Crosby to solicit business for his funeral home. While it is clear from the evidence that Reverend Crosby recommended Sowell to the widow, the Board has failed to prove that Sowell in any way had prior knowledge of such referral or that Sowell engaged Crosby for that purpose.
Finally, we must ascertain whether Sowell permitted Crosby to perform the duties of a funeral director. The duties of a funeral director, as set forth in Section 470.01(3) and (4), Florida Statutes, are:
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 deposition or shipping of dead human bodies, or the provision or maintenance of a
place for the preparation of dead human body.
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, 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 profession of funeral directing the words or terms "funeral director," "undertaker," "funeral director," "undertaker," "funeral counselor," "mortician," or any other word, term, or picture or combination thereof when considered in the context in which used, from which can be implied the practicing of
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.
Specifically, Sowell is charge with permitting Reverend Crosby to (1) meet with the family of the deceased (2) make arrangements for the purchase of the casket (3) plan the details of the funeral with the family (4) make financial arrangements with the family and (5) be in apparent charge of the funeral services.
Of these allegations, the first, meeting with the family of the deceased, is not solely a funeral director's duty nor prohibited by statute. The fifth is unsupported by the evidence as it was determined as a matter of fact that Sowell was actually present and in charge of the funeral services.
As to the remaining allegations, it was determined as a matter of fact that Reverend Crosby was acting on behalf of the family and was therefore personally responsible for planning the details of the funeral services with the funeral director. It is determinative of this cause that the above quoted statute explicitly provides for persons other than family member to plan funeral details:
. . . who plans details of funeral services with members of the family and minister or
any other person responsible for such planning
Furthermore, there is a complete absence of evidence to establish that Sowell "permitted" Crosby to act as a funeral director. That is to say, the Board has failed to prove that Sowell allowed Crosby to stand in his shoes. The evidence is entirely consistent with the finding that Sowell regarded Crosby as the "person responsible for planning" or the "minister" referred to in the statute. It is, therefore, concluded that Sowell is not guilty of this charge.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Eddie L. Sowell, Jr., and Sowell Funeral Home be fined the
combined amount of $250.00.
DONE and ENTERED this 27th day of July, 1979, at Tallahassee, Florida.
MICHAEL R.N. McDONNELL
Hearing Officer
Division of Administrative Hearings The DeSoto Building
2230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1979.
COPIES FURNISHED:
Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida
Eddie L. Sowell, Jr., d/b/a Sowell Funeral Home
1439 Davis Street
Jacksonville, Florida 32209
Thomas Beason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF FUNERAL DIRECTORS AND EMBALMERS
BOARD OF FUNERAL DIRECTORS AND EMBALMERS,
Petitioner,
vs. CASE NO. 79-016
EDDIE L. SOWELL, JR., d/b/a SOWELL'S FUNERAL HOME,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Recommended Order issued in this matter by Michael
McDonnell, Hearing Officer, dated July 27, 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 and after a complete review of the complete record of this cause, the Board finds and concludes as follows:
The findings of fact contained in the Recommended Order are adopted by the Board and incorporated herein as findings of fact of the Board, except as follows:
Strike the last sentence in the second paragraph of page two (2) of the Recommended Order which reads:
". . . However, there is no evidence to establish that Sowell either authorized or knew about such representation on the part of Reverend Crosby, if it in fact occurred."
There is, contrary to this recommended finding of fact, sufficient competent substantial evidence in the record to support a factual finding that the Respondent Sowell "otherwise retained" the Reverend Crosby to solicit business for the funeral home operated by Respondent.
Strike the first sentence in the first complete paragraph of page three (3) of the Recommended Order which reads:
"When Sowell was contacted by Reverend Crosby, Crosby represented that he was
acting on behalf of the deceased's family. "
There is, contrary to the recommended finding of fact, sufficient competent substantial evidence in the record as a whole to support the factual conclusion that the Reverend Crosby was acting primarily on behalf of himself and the Respondent, as opposed to acting on behalf of the family of Eston Singletary.
The conclusions of law contained in the Recommended Order are adopted by the Board and incorporated herein as the conclusions of law of the Board, except as follows:
Strike the second and third sentences of the first paragraph of page five (5) of the Recommended Order which read:
". . . There is a complete absence of evidence to establish that Sowell employed, commissioned or retained Reverend Crosby
to solicit business for his funeral home.
While it is clear from the evidence that Reverend Crosby recommended Sowell to the widow, the Board has failed to prove that Sowell in any way had prior
knowledge of such referral or that Sowell engaged Crosby for that purpose."
Contrary to this conclusion of law, there is sufficient competent substantial evidence to support a legal conclusion that Respondent Sowell employed, commissioned or retained Reverend Crosby to solicit business for the Respondent's funeral home. As such, the Board hereby enters and inserts the following language in the Conclusions of Law in substitution for the stricken language:
". . . There is sufficient competent substantial evidence to establish that Sowell employed, commissioned or retained Reverend Crosby to solicit business for his funeral home. It is clear from the evidence that Reverend Crosby recommended Sowell to the widow, and that Sowell had prior knowledge of such referral and that Sowell engaged Crosby for that purpose.
As such, Respondent Sowell violated Section 470.12(2)(i), Florida Statutes, by employing, commissioning, or otherwise retaining Reverend Charles Crosby for
the personal solicitation of business in connection with the death of Eston Singletary.
Strike the second, third and fourth paragraphs of page six (6) of the Recommended Order which read:
". . . Of these allegations, the first, meeting with the family of the deceased,
is not solely a funeral director's duty nor prohibited by statute. The fifth is unsupported by the evidence as it was actually present and in charge of the funeral services.
As to the remaining allegations, it was determined as a matter of fact that Reverend Crosby was acting on behalf
of the family and was therefore personally responsible for planning the details of the funeral services with
the funeral director. It is determinative of this cause that the above quoted statute explicitly provides for persons other than family members to plan funeral details:
. . . who plans details of funeral services with members of the family and minister or any other person responsible for such planning . . . .
Furthermore, there is a complete absence of evidence to establish that Sowell "permitted" Crosby to act as a funeral director. That is to say, the Board
has failed to prove that Sowell allowed Crosby to stand in his shoes. The evidence is entirely consistent with the finding that Sowell regarded Crosby
as the "person responsible for planning" or the "minister" referred to in the statute. It is, therefore, concluded
that Sowell is not guilty of this charge."
There is no competent substantial evidence in the record that the Respondent was "in charge" of the funeral services. The Recommended Order's conclusion that the Respondent was not guilty of permitting Reverend Crosby to perform the duties of a funeral director is based in part on a misconstruction and misapplication of Section 470.01(4), Florida Statutes. The substantial record evidence overwhelmingly demonstrates that the Respondent had no role whatsoever in planning the funeral services with the Reverend Crosby or the family, since Reverend Crosby planned the funeral services. In addition, the Recommended Order failed to consider the totality of the factual circumstances regarding the Reverend Crosby's activities in reaching these conclusions of law. Furthermore, there is competent substantial evidence in the record to prove that Sowell permitted Reverend Crosby to act as a funeral director and the Recommended Order failed to consider all the record evidence to this issue.
Otherwise, the Recommended Order applied an erroneous construction of the word "permitted," to the extent the Recommended Order would require proof that Crosby was allowed to "stand in the shoes" of Respondent Funeral Director.
As such, the Board hereby enters and inserts the following language in the Conclusions of Law in substitution for the stricken language:
"Eddie L. Sowell, Jr., violated Section 470.10(6), Florida Statutes, by permitting Reverend Charles Crosby to perform the duties of a funeral director in connection with the death and funeral arrangements and funeral of Eston Singletary.
Sowell Funeral Home, based on the Conclusions of Law, violated Section 470.12(4)(a), Florida Statutes, in that Eddie L. Sowell,
Jr., licensed funeral director in charge of Sowell Funeral Home, committed acts in
violation of Chapter 470, Florida Statutes.
Furthermore, Sowell Funeral Home violated Section 470.12(4)(c), Florida Statutes, by permitting Reverend Charles Crosby, an unlicensed individual, to perform the duties of a funeral director in connection with the death and funeral of Eston Singletary, for the benefit of the
Sowell Funeral Home."
Based upon the findings of fact and conclusions of law, the Board rejects the Recommendation of the Hearing Officer for the reason of the above-cited amendments to the Recommended Order and the nature and severity of the violations of Chapter 470, Florida Statutes. It is therefore
ORDERED AND ADJUDGED:
That the licenses of Respondent Eddie L. Sowell, Jr., to practice funeral directing and embalming be suspended for a two-year period beginning from the date of this Order, with said two-year suspension stayed and the licenses of Respondent to practice funeral directing and embalming placed on probation for a period of two (2) years beginning with the date of this Order. Furthermore, Respondent Eddie L. Sowell, Jr., is fined one thousand dollars ($1,000), payable within six (6) months from the date of this Order. The probation of Respondent is subject to the following terms and conditions:
That Respondent, Eddie L. Sowell, Jr., shall pay the fine of one thousand dollars ($1,000) to the Department of Professional Regulation within said six (6) month period; and
That Respondent, Eddie L. Sowell, Jr., shall not violate the provisions of Chapters 455 and 470, Florida Statutes (1979), and the rules promulgated pursuant thereto.
Failure of the Respondent Eddie L. Sowell, Jr., to comply with the above- cited probationary terms and conditions will subject the Respondent to suspension of his licenses to practice funeral directing and embalming for the remainder of the two (2) year period of time, as well as further prosecution.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of December, 1979.
RONALD GIDDENS, CHAIRMAN
Board of Funeral Directors and Embalmer
cc: All Counsel of Record
| Issue Date | Proceedings |
|---|---|
| Dec. 19, 1979 | Final Order filed. |
| Jul. 27, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 17, 1979 | Agency Final Order | |
| Jul. 27, 1979 | Recommended Order | No proof Respondent allowed unlicensed person to act as funeral director under his authority. Respondent did practice while license suspended. Fine. |
