vs. ) CASE NO. 79-2028
Respondent. )
Pursuant to notice, an administrative hearing was held before P. Michael Ruff, Hearing Officer for the Division of Administrative Hearings, on July 17, 1980, in Jacksonville, Florida.
For Petitioner: Michael J. Dewberry, Esquire
For Respondent: Wilson W. Wright, Esquire
and Nicholas A. Caputo
By Administrative Complaint filed June 19, 1979, the State Board of Funeral Directors and Embalmers, seeks to revoke or suspend the funeral director's licenses and the embalmer's licenses of Dale Woodward and Dale Woodward Funeral Home (License Nos. 671 and 123) or seeks to otherwise discipline those licensees, the Respondents. It is alleged that the Respondents violated Section 470.10(6) , Florida Statutes, by permitting one Richard McCafferty to perform the duties of a funeral director without being so licensed on behalf of Dale Woodward and the Dale Woodward Funeral Home, Respondents. It is alleged that Respondent Woodward violated Section 470.12 (1)(j) , Florida Statutes, by willfully signing an affidavit stating that he embalmed the body of one Howard McMurray when, in fact, it is alleged that the body was embalmed by Ricky Charles Vyse, and it is alleged that similar misstatements and affidavits by Respondent Dale Woodward were made between August 7, 1975 and January 13, 1979.
It is further alleged that the Respondent Dale Woodward violated the provisions of Section 470.10(6) by permitting Ricky Charles Vyse to perform the duties of an embalmer when he was not so licensed; that Respondent Woodward
violated Section 470.12(2)(h), Florida Statutes, by causing the body of Howard McMurray to be cremated in a casket other that the one selected by Mrs. Violet Eggleston, the person responsible for making the selection. It is also alleged that the Respondent Dale Woodward violated Section 470.12(1)(k); Section 470.12(2)(p) by committing the above-described acts. It is alleged finally that the Respondent Dale Woodward Funeral Home is derivatively guilty of violations of Sections 470.10(6), 470.30(6), 470.12(4)(a) and (b) by virtue of the acts of its owner Respondent Dale Woodward and which were performed on behalf of and for the benefit of Respondent Dale Woodward Funeral Home.
The Petitioner presented two witnesses, one of whom was the Respondent Dale Woodward, as well as the deposition of the complaining witness Violet Eggleston (Exhibit 12). The Petitioner presented Exhibits 1, 2, 2A and 3 through 14,which were admitted into evidence. The Respondents presented 7 witnesses as well as exhibits A through F. Exhibits A through E were admitted into evidence.
The Respondents filed a Motion to Dismiss pursuant to Section 120.60(6), F.S., alleging that no notice of the charges nor an opportunity to respond to them prior to the issuance of the Administrative Complaint herein had been afforded the Respondents, nor had any informal conference been permitted at which the Respondents could respond to the allegations of violations:.
Respondents are relying on Sheppard v. Board of Dentistry, 314 Administrative Law Reports, Vol II, No. 13 (July 14, 1980), and Chavers v. Florida Real Estate Commission, Fla. App. 384 So.2d 963 (June 23, 1980), which provide that dismissal of the complaint is in order when this right of the Respondent is ignored by an agency. There is no question that no opportunity was afforded the Respondents for an informal conference or an opportunity to respond to the allegations of violations prior to the filing of the Administrative Complaint and, indeed, for a substantial period of time after the Administrative Complaint was filed and served. However, these cases also stand for the proposition that this right must be asserted in a timely fashion by a Respondent and that a Motion to Dismiss must be timely filed in order for the Respondent's right to a dIsmissal under these circumstances to lie. The Respondents herein, however, waited until approximately one year after the filing of the Administrative Complaint to file the Motion to Dismiss, waiting until immediately after the publication of the opinions in Sheppard and Chavers, in fact. The right to a dismissal when the agency has ignored the provisions of Section 120.60(6) however is a right arising out of that statutory provision and was not created by the two decisions cited. At the very latest, the Motion to Dismiss should have been filed immediately after the apparent attempt to schedule an informal conference between the Petitioner and Respondent failed in January, 1979.
Accordingly, the Respondent's Motion to Dismiss was denied.
Dale Woodward, the Respondent, holds Funeral Director's License No. 671 and Embalmer's License No. 536 at the present time, and during the times pertinent to 1978 and January through 1979. The Respondent Dale Woodward is the owner of the Dale Woodward Funeral Home of Holly Hill, Florida. The Dale Woodward Funeral Home holds an establishment operating License No. 123. During all times relevant to the allegations in the complaint, Ricky Charles Vyse and Richard G. McCafferty were employees of Dale Woodward and the Dale Woodward Funeral Home.
In early 1978, one Howard McMurray made arrangements with Dale Woodward for his own funeral seven to eight months prior to his death. Mr. McMurray
stated that he would prefer to have his funeral similar to that of his wife, which arrangements had earlier been handled by the Dale Woodward Funeral Home.
On December 19, 1978, Howard McMurray passed away and his body was delivered to the Dale Woodward Funeral Home. On the morning of December 20, Violet Eggleston, his executrix, and her husband Raymond, came to the funeral home. Mrs. Eggleston was met by Mr. Woodward and Mr. McCafferty and introduced to Mr. McCafferty by Mr. Woodward. Although Mrs. Eggleston stated in her deposition (Exhibit 12) that she did not meet Mr. Woodward upon coming into the funeral home, she did state that he might have been painting or hanging wallpaper and that she would not have recognized him with painting clothes on and in fact Mr. Woodward's testimony establishes that he was painting the funeral home that day and was dressed in old clothes and his presence at the funeral home on that morning is corroborated by Mrs. Eggleston's later statement that Mr. Woodward introduced her to Mr. McCafferty at the time they began to discuss funeral arrangements. Mr. McCafferty was introduced to Mrs. Eggleston and obtained some information for the preparation of death certificates as well as for Mrs. Eggleston's desires regarding arrangements for funeral services.
Mr. McCafferty also assisted Mrs. Eggleston on behalf of the family in making funeral selections from the Respondent's stock of caskets and urns. Mrs.
Eggleston was not the person considered in sole charge of arranging for Mr. McMurray's funeral in that she was not the next of kin, rather the deceased's daughter Diana Keeley apparently had some responsibility in arranging for the funeral, although Mrs. Eggleston was primarily responsible for making the subject arrangements and indeed paid for the Respondent's services herself. Mr. McCafferty did not complete a sale of a casket or urn to Mrs. Eggleston, although she did select a salix casket that day. These preliminary negotiations and discussions of the funeral arrangements and the obtaining of a casket engaged in by Mr. McCafferty with Mrs. Eggleston were at the direction of Respondent Dale Woodward, the subject licensed funeral director, and Mr.
McCafferty himself was not present at the funeral. On or about December 22, 1978, the same day, Mrs. Eggleston signed an authorization for the cremation of the body of Howard McMurray and he was subsequently cremated at the Cedar Hill Crematory in Daytona Beach, Florida. The body was removed from the casket in which it had been placed for viewing and was cremated in a cardboard cremation container, The value of that cremation container or the sales price, was substantially less than that of the $865 casket. Neither Mrs. Eggleston nor Diana Keeley, the decedent's daughter, ever gave any written instructions regarding the manner of cremation of the body of Howard McMurray as to the container which should be used, nor does the record reflect that any written instructions or understandings passed between these two ladies and Mr. Woodward or his employees. Mrs. Eggleston's instructions regarding the cremation were verbal and made no provision for the type container to be used in the cremation process.
Ricky Charles Vyse was employed by the Dale Woodward Funeral Home on or about June, 1978. At that time, and at times subsequent thereto, he represented that he was qualified to embalm human bodies as an apprentice or intern embalmer in that he had submitted papers registering him for such internship to the Florida Board of Funeral Directors. Dale Woodward and Dale Woodward Funeral Home believed and relied upon that representation, thus permitting Ricky Vyse to assist or participate in embalming procedures. The Respondent Dale Woodward supervised any embalming procedures in which Ricky Vyse participated. Particularly, Dale Woodward did virtually all cosmetic work, including that in the cases involving the decedent, Howard McMurray, as well as with regard to the funeral and embalming of Mary Salvonge. Further, evidence adduced at the hearing revealed that Ricky Vyse had never actually been registered as an intern
embalmer with the Board of Funeral Directors and the testimony of four of Respondent's witnesses revealed that Ricky Vyse had been detected on a number of occasions stealing office records and various items of property from the funeral home, including an embalming machine, a Beethoven bust, a desk globe, and other items. After repeated warnings, the Respondent Dale Woodward through his employees Franklin Muffley and Richard McCafferty terminated Ricky Vyse's employment. It was evident from the demeanor of Ricky Vyse on the witness stand that he was a disgruntled employee and hostile former employee of the Respondents, and that be approached the State Attorney in January, 1979 with accusations against Dale Woodward and the Dale Woodward Funeral Home involving violations such as those involved herein. The record reflects that no prosecution was initiated by the State Attorney's office.
Franklin Muffley is the internal auditor and bookkeeper for the Dale Woodward Funeral Home. As such he is responsible for the billing in cases such as the McMurray case. It is his practice and custom to gather all figures and data regarding funeral arrangements, verify them and routinely mail a statement within approximately two weeks following a funeral service. In the McMurray case however, the executrix, Mrs. Eggleston, made payment on the day the funeral arrangements were made before any written itemization for funeral services to be rendered was finalized or verified by Muffley. As a result, after having been shown the salix casket priced at $865, she proceeded to pay for the casket, as well as for the other arrangements for a total of $1,785. The record is not clear whether Franklin Muffley or Richard McCafferty who were privy to the discussions of arrangements and price with Mrs. Eggleston that morning knew that the decedent would be cremated in a cardboard container. Dale Woodward, the Respondent in this case, did not learn of the fact that Mrs. Eggleston had been billed for the casket which was not used in the ultimate disposition of the body of Mr. McMurray until approximately three months later, in about March of 1979, when, as it was his regular custom and practice, he instituted his quarterly review of his business's billing and receipts. Having been closely acquainted with the McMurray family and being aware of the arrangements Mrs. Eggleston had requested for Mr. McMurray's funeral (i.e., cremation), Mr. Woodward detected an error in billing due to the charge for the casket which was not ultimately used except for display purposes. Mr. Woodward thereupon immediately made a refund to Mrs. Eggleston of $805 representing the price charged her for the casket less the $60 charge legitimately due and owing for the cardboard cremation container.
Dale Woodward and Dale Woodward Funeral Home have been in operation and licensed approximately 25 years and have never been the subject of such complaints and charges heretofore. The Respondents Dale Woodward and Dale Woodward Funeral Home, as established by the four "character witnesses," enjoy a good reputation for truth and veracity in the community
CONCLUSIONS OF LAW
The parties and subject matter hereof are properly within the jurisdiction of the Division of Administrative Hearings.
Section 470.01(4), F.S., defines the term "funeral director" as follows:
(4) The term "funeral directing," 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 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 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.
Section 470.08, subsection (3) provides that no person shall be qualified to be examined for licensing as a funeral director unless he shall have a year of practical training and instruction as an intern funeral director in an approved training agency under supervision of a licensed funeral director. Similarly, Section 470.10(6) under which the Respondents are charged provides in pertinent part that no person not licensed as a funeral director or embalmer shall be permitted to perform the functions of funeral director or embalmer; the penalty for violation of which is revocation of the license pursuant to Section 470.12(1)(k) in the case of the embalmer or 470.12(2)(p) in the case of the permitting of unlicensed funeral directing.
The record establishes that Richard McCafferty, as found above, did meet with the family of the deceased Howard McMurray (Violet Eggleston acting on behalf of Howard McMurray) and did assist the family in making selection of the casket .and some other details surrounding the funeral arrangements such as obtaining the vital statistics of the deceased for purposes of preparation of the death certificate and discussing prices of various aspects of the funeral arrangements. Mr. McCafferty himself did not actually complete the sale of the casket or urn and performed these acts under the supervision of Dale Woodward, the Respondent, who is a licensed funeral director. This is evidenced by the fact that Mr. Woodward, was present when Mrs. Eggleston arrived and introduced her to McCafferty, giving Mrs. Eggleston reason to believe that Mr. McCafferty was handling preliminary negotiations and discussions with her at the direction and under the supervision of Respondent Dale Woodward. Further, although McCafferty handled some preliminary discussions and eliciting of information from Mrs. Eggleston regarding the desired arrangements, Dale Woodward was actually in charge of the direction of the funeral and attended the funeral
whereas McCafferty was not in attendance. The record herein reflects further that Mr. McCafferty is a licensed intern funeral director and pursuant to the above statutory criteria (Section 470.08) , the licensing requirements to be a funeral director are to be met by on-the-job training through an internship program which McCafferty was properly participating in and therefore it must be concluded that McCafferty was, in this case, working toward completion of his training requirements in assisting with certain parts of the McMurray funeral arrangements but at all times was under Dale Woodward's supervision.
Accordingly, Dale Woodward and derivatively the Dale Woodward Funeral Home cannot be held to be guilty of allowing an unlicensed funeral director to direct and be solely responsible for the subject McMurray funeral.
Section 470.12(1)(j) provides as a ground for revocation of an embalmer's license the willful signing of a certificate by an embalmer that he embalmed a body when, in fact, the body was embalmed or prepared by someone else; provided, however, that the embalming of a dead body by a licensed intern regularly employed and under direct supervision of the licensee shall be considered as the embalming of the body by the licensee.
Section 470.11(1) provides that within 30 days after any person shall have begun preliminary instruction and training as an intern embalmer at an approved intern training agency, he shall file a certificate of employment signed by his employer with the secretary of the Hoard of Funeral Directors and Embalmers.
In approximately June of 1978, Dale Woodward and the Dale Woodard Funeral Home employed Ricky Charles Vyse as an assistant. At that time or shortly thereafter, it has been established that Ricky Vyse represented to and assured Dale Woodward and the Dale Woodward Funeral Home that he was a registered or licensed intern embalmer. The Respondents acted under the sincere and genuine belief that Ricky Vyse was, indeed, a licensed intern embalmer. The charges predicated on the above statutory authority were supported almost solely by the testimony of Ricky Vyse. Ricky Vyse testified that he embalmed or participated in the embalming of, as pertinent hereto, Howard McMurray and Mary Salvonge. Parenthetically, it should be noted that Ricky Vyse maintains he embalmed numerous bodies while working at the Respondent funeral home which are not the subject of the charges in this cause. There is no evidence that Vyse ever informed the funeral home personnel, and particularly Dale Woodward, of any information which would lead them to believe that he was other than a licensed intern embalmer as envisioned by the above authority. The testimony of Ricky Vyse was substantially impeached by the testimony of four other witnesses who established that Vyse had repeatedly stolen various items of property from the funeral home, bad been repeatedly reprimanded therefor, and ultimately was discharged for theft. This testimony established that Vyse, without a doubt, is and was a disgruntled, dissatisfied and hostile former employee as further evidenced by the fact that he attempted to institute charges against the Respondents through the State Attorney's Office and that the State Attorney, after investigation, concluded that no charges were warranted. There is no question that Vyse never actually was licensed as an intern embalmer by the State of Florida as he had represented to the Respondents. Thus, considering Vyse's testimony as well as those of the impeaching witnesses, and in view of the Hearing Officer's observations of his general demeanor and candor upon the witness stand, it must be concluded that Vyse's testimony can be accorded scant credibility. The only cogent conclusion that can be drawn from Vyse's testimony, which is in part supported by the testimony of Dale Woodward himself, is that he did indeed participate in some fashion, in the embalming of the two bodies in question, although he was not solely responsible for that procedure.
There is no question that the Respondent Dale Woodward signed the certificate or affidavit that he embalmed the bodies in question, but the record does not reveal that the bodies were solely embalmed or prepared by someone else, to wit, Ricky Vyse, rather the record reveals that Woodward supervised the embalming in which Vyse participated and that, indeed, Woodward performed personally, at the very least, all the cosmetic work. Section 470.12(1)(j), cited above, requires that the licensee (Woodward) must willfully sign the certificate that he embalmed the body, which in fact was embalmed or prepared by someone else, in order for a violation to lie against him. Thus, the statutory provision requires the element of scienter or intent before such a violation will justify the revocation of the license or other disciplining of such a Respondent. There is no question that Woodward genuinely believed Vyse to be a licensed intern embalmer and that therefore he could legally sign the certificate that he embalmed the body since he believed himself to be supervising a licensed intern. Thus, the Respondent cannot be found guilty of violation of this statutory provision since there was no intent to willfully sign and submit a false certificate or affidavit.
The Respondents Dale Woodward and Dale Woodward Funeral Home are technically in violation of Section 470.12(4)(a) and 470.12(1)(k) by the mere fact that an unlicensed embalmer (Unbeknownst to the Respondent) was allowed to participate in the embalming of the bodies in question and those statutory provisions do not apparently require the element of intent or scienter. The fact remains that this technical violation was the result of a genuine, good faith misinterpretation of the legal status of Ricky Vyse as an embalmer and not through any overt intent to circumvent the law. This fact, coupled with the fact that Respondent and his funeral home business have never before, in twenty- five years of operation, been the subject of any such enforcement action and have conducted business with the utmost candor and integrity, leads to the only cogent and just conclusion to be drawn from the fact of this violation and the circumstances surrounding it, that is that any penalty should be minimal.
Section 470.12(2)(h) provides in pertinent part that it should be a ground for revocation of a license or the imposition of another penalty if a licensee has caused a body to be cremated or interred in a casket other than that which was selected for the services by the person responsible for making the selection, without the knowledge and written consent of that person. There is no question that it had been made clear to Dale Woodward and Dale Woodward Funeral Home by the decadent himself, some months prior to his death, that he wanted a cremation form of service as had his wife previously, which funeral had also been conducted by the Respondents. Further, there is no question that Mrs. Violet Eggleston, responsible at least in part for the arrangements for Mr. McMurray's funeral, informed Mr. Woodward and others present on the morning of December 22, 1978, that she and the family desired the cremation service. The record is unclear whether Mrs. Eggleston or Diana Keeley, as the next of kin (daughter), was solely responsible for making arrangements. However, neither of those two family members refuted at any time and indeed affirmatively requested the cremation. There is no substantial, competent evidence in the record to reveal that either Diana Keeley or Mrs. Eggleston believed that the cremation would be in a casket, but rather, both of these individuals requested that the funeral be like that performed for Alta McMurray, who was cremated in a cremation container. Further, it was established that McMurray himself made those arrangements with Dale Woodward some months previously. Thus, it may logically be inferred (as the Respondent did) that if these family members had knowledge of the type of funeral Mrs. McMurray had and requested the same for
Mr. McMurray, then they both envisioned that the cremation would be in the subject cremation container.
It is true that Mrs. Eggleston initially paid for a casket at the close of discussions with Mr. McCafferty and possibly Mr. Muffley regarding the various costs associated with the funeral, but not in the presence of the Respondent Dale Woodward. Mrs. Eggleston selected the subject $865 casket and shortly thereafter that morning, either McCafferty or Muffley added up that as well as all other charges to arrive at the total of $1,785 which Mrs. Eggleston promptly paid at that time. The record does not reveal that either of those employees of the Respondent had any intent of billing her for the casket without actually using it, and, at most, the record reveals that Mrs. Eggleston acted under a misunderstanding of the need for the casket beyond the purpose of merely displaying the body. In any event, the Respondent Dale Woodward was not present during the course of that negotiation and was not even aware that Mrs. Eggleston had paid the price for the service and arrangements in advance of actually receiving a billing statement therefor, which normally would have been submitted approximately two weeks after the funeral services when the office manager, Frank Muffley, could have assembled all the costs, checked their accuracy, prepared a statement and mailed it to the customer. The record thus reveals that the charging of Mrs. Eggleston for the wooden casket when the body was actually cremated in a cremation container was due to a combination of a failure to communicate between McCafferty, who demonstrated the subject wooden casket to Mrs. Eggleston, and Muffley, who was responsible for billing, and between those two employees and Mrs. Eggleston and Dale Woodward. Thus, because of Mrs. Eggleston's unusually prompt payment before she or possibly the other parties to that negotiation thoroughly understood and communicated among themselves the specific nature of the arrangements to be conducted, there was no two-week waiting period as is normally the case during which time the figures could have been verified and corrected. The record reveals that Dale Woodward customarily and habitually examined his billing statements quarterly and that unintentional overcharges in the past had always been the subject of prompt refunds upon such examinations and such occurred in this case. Considering this evidence in light of the unusual circumstances, that is, the tender of payment before normal billing, the prompt tender of the refund upon the quarterly examination of billing records by the Respondent, the close personal relationship between the Respondent and the deceased, as well as the fact that Respondents have never been charged with any offense under Chapter 470, Florida Statutes, one is led unerringly to the conclusion that the billing for the wooden casket was the result of an unfortunate, but unintentional bookkeeping oversight and that there was no intent on the part of the Respondents to overcharge Mrs. Eggleston or the estate of Howard McMurray or any person associated with making the subject funeral arrangements. Further, it is also true that the licensee Dale Woodward did not himself cause the body to be cremated in a casket other than that which had been selected by Mrs. Eggleston since he was not present during the selection and at the time payment for the casket was made. He had instead allowed his legally licensed intern director, McCafferty, to conduct these preliminary arrangements. Therefore, the Respondent Dale Woodward and therefore, Dale Woodward Funeral Home cannot be deemed to be guilty of the
above-described violation.
On consideration of the foregoing findings of fact and conclusions of law, it is concluded that, except as delineated in the first recommending paragraph below, that substantial, competent evidence has not been presented which will sustain the Petitioner's burden of presenting proof that there are substantial causes or reasons justifying the revocation or suspension of the Respondents' licenses or otherwise disciplining them. It is, therefore
RECOMMENDED that the Respondents Dale Woodward and The Dale Woodward Funeral Home he found guilty of allowing embalming work to be performed by an unlicensed embalmer and fined the sum of $250, but in view of the above findings and conclusions regarding mitigatory factors, that the entire fine be suspended and not imposed provided no such offense occurs again for a period of five years. It is, further
RECOMMENDED that the Administrative Complaint be, in all other respects, dismissed and the case closed.
DONE and ENTERED this 25th day of October, 1980, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Michael J. Dewberry, Esquire Division 1300 Florida Title Bldg.
Wilson W. Wright, Esq.
Nicholas A. Caputo
