STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-989

)

THOMAS F. NELSON, JR., and ) THOMAS NELSON FUNERAL HOME, P.A.,)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 14 July 1981 at Tampa, Florida.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Kay J. McGucken, Esquire

504 Pierce Street Tampa, Florida 33602

By Administrative Complaint dated 4 March 1981, the State of Florida, Department of Professional Regulation, Board of Funeral Directors and Embalmers, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Thomas F. Nelson, Jr. and Thomas Nelson Funeral Home, P.A., Respondents. As grounds therefor it is alleged that Respondent brought the decomposing remains of one Joan Kelly to a crematorium, that he failed to embalm or refrigerate the body within 24 hours of death, that he advertised under the heading "Funeral Directors" the address of a funeral home licensed to someone else, that he advertised as a funeral home at an address of another licensed funeral home, and that such advertisements were false, misleading, and intended to deceive, all in violation of various provisions of Chapter 470, Florida Statutes.

At the hearing, Petitioner called five witnesses, two witnesses, including Respondent, were called by Respondent and four exhibits were admitted into evidence. Proposed findings submitted by the parties and not included herein were not supported by competent evidence or were deemed immaterial to the conclusions reached.

FINDINGS OF FACT

1. Thomas F. Nelson, Jr. is licensed by the Florida Board of Funeral Directors and Embalmers as a Funeral Director and Embalmer and holds license number FE 0002843. He was so licensed at all times here relevant.

   
   

2. Joan Kelly died 7 July 1980 and the body was given to Respondent for preparation. At the time, Respondent had an agreement to use the facilities at Stowers Funeral Home at 11301 North Florida Avenue, Tampa, Florida, to prepare the body and hold funeral services. The body of Kelly remained at the funeral home for approximately five days before it was taken to the crematorium at Brandon, Florida. An incision had been made in the body to embalm, but the blood vessels had not been raised and the body was not embalmed. Respondent's testimony to the contrary, that he did embalm the body of Kelly, and the confirming testimony of Respondent's other witness is not believed.

   
   

3. When Kelly's body was delivered to the crematorium some five days after death, the body was in an advanced state of decomposition, was turning green in color and emitted a strong odor of putrefaction. Respondent's witness could not account for his inability to detect an odor when he delivered Kelly's body to the crematorium while others could detect the odor. There was no evidence of maggots in the body as alleged in the Administrative Complaint.

   
   

4. In 1979, Respondent and Richard Stowers, owner of Stowers Funeral Home, discussed an arrangement whereby Respondent could operate out of Stowers Funeral Home as an independent funeral director and pay, as rent, a percentage of the fees he received for services. Before these arrangements were finalized, Stowers went to the mountains on a vacation. When he returned, he found Respondent had moved in and was operating out of the address at 11301 North Florida Avenue, Tampa. Upon concluding the arrangements with Stowers, Respondent allowed his registration as a funeral home on Busch Boulevard to lapse.

   
   

5. While using the facility at 11301 North Florida Avenue, Respondent was holding himself out as Thomas Nelson Funeral Home, P.A., and advertised in the yellow pages of the 1980 Tampa telephone directory that his address was 11301 North Florida Avenue. In the initial application for the 1980 yellow page ads, Respondent directed the address be omitted from the column in which "Thomas Nelson Funeral Home, P.A." was listed with other funeral homes. However, before the yellow pages are published, the proposed ad is presented to the advertiser, who has a final opportunity to make corrections before the yellow pages are printed. There was no record that Respondent objected to any of these ads.

   
   

6. Respondent testified that he told the phone company to leave out the 11301 North Florida Avenue address from the yellow pages. He also testified that he researched the laws and determined that his method of operation as a Professional Association was legal. Respondent contended that Thomas Nelson Funeral Home, P.A., was a fictitious name even though he had formed the service corporation while he was operating a funeral establishment from an address on Busch Boulevard.

   
   

7. Although the initial entry by Respondent to the funeral establishment at 11301 North Florida Avenue, Tampa, was with Stowers' implied, if not expressed, consent, Stowers received information that the Board of Funeral Directors and Embalmers frowned on two funeral homes being operated at the same address and attempted to terminate his agreement with Nelson. Since Nelson did

   not move voluntarily, in August, 1980, Stowers brought eviction proceedings against Nelson and obtained an eviction in September, 1980.

   
   

8. Nelson contends that the ad he intended for the yellow pages was the photograph presented as Exhibit 3. It is noted that "Funeral Home" has been x- ed out on Exhibit 3 and that "Funeral Directors" has been substituted. The ad appearing on Exhibit 2 (p. 382, Tampa Yellow Pages 1980) has a different photograph of Nelson than the one presented in Exhibit 3. Otherwise, the printed information in this ad in Exhibit 2 is the same as the printed information on Exhibit 3, except for the telephone numbers, which are different. No explanation was presented for this disparity in telephone numbers, but the number in the yellow page ad with the photograph is the same number shown with the other five yellow page entries in which Nelson's name appears. Nelson introduced Exhibit 3 for the apparent purpose of showing the phone company makes mistakes.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

10. Respondent is charged with violating various provisions of Chapter 470, Florida Statutes (1979), which provide in pertinent part:

    
    

    470.024(8) Each funeral establishment located at a specific address shall be deemed to be a separate entity and shall require separate licensing and compliance with the requirements of this chapter.

    
    

    470.036(1) The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

    * * *

    1. Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.

    2. Fraud or deceit, or negligence, incompetency, or misconduct, in the practice of funeral directing or embalming.

       * * *

       (k) Misrepresentation or fraud in the conduct of the business of or profession of the licensee.

       * * *

       (o) Violation of any state law or rule or municipal or county ordinance or regulation affecting the handling, custody, care, or transportation of dead bodies.

       
       

11. Rule 10D-37.15, Florida Administrative Code, provides:

    
    

    A dead human body may be held in any place or in transit over twenty-four (24) hours after death or pending final

    disposition only if the body is maintained under refrigeration at a temperature of

    40 degrees Fahrenheit or below, embalmed in a manner approved by the

    Board of Funeral Directors and Embalmers in accordance with provisions of Chapter

    470 F.S., or otherwise preserved.

    
    

12. Despite Respondent's sworn testimony that he embalmed the body of Joan Kelly on 8 July 1980, the evidence that the body was rapidly decomposing when it was delivered to the crematorium on 12 July 1980 and that the body was observed at the funeral home several days earlier to be not embalmed is more compelling. If, in fact, Respondent did attempt to embalm Joan Kelly, it would appear that he did not do so in a manner approved by the Board. If he had so embalmed the body, it would not have decomposed so rapidly.

    
    

13. Respondent's contention that he was operating under the fictitious name of "Thomas Nelson Funeral Home, P.A." is without merit. Even if Respondent had complied with Section 865.09, Florida Statutes, respecting the filing of the fictitious name, the Respondent was doing business in his own name, not in a fictitious name. The only fictitious part was that he was a funeral establishment. The purpose of the Fictitious Name Statute is to provide to anyone dealing with a person operating under a fictitious name, the name and address of the real party in interest. Cor-Gal Builders, Inc. v. Southard, 136 So.2d 244 (Fla. 3rd DCA 1962). Here Nelson was the real party in interest and his name was provided as the name under which he was doing business. Accordingly, there was no fictitious name used.

    
    

14. Furthermore, Section 621.12, Florida Statutes, which relates to professional service corporations provides in pertinent part:

    
    

    The use of the word "company, "corporation," or "incorporated" or any other word, abbreviation, affix, or prefix indicating that it is a corporation in the corporate name of a corporation organized under this act, other than the word "chartered" or "professional association," or the abbreviation "P.A.," is specifically prohibited. It shall be permissible, however, for the corporation to render professional services and to exercise its authorized powers under a name which is identical to its corporate name except that the words "chartered" or "professional association" or the abbreviation "P.A." is omitted, provided that the corporation has first registered the name to be so used in the manner required for the registration of fictitious names.

    
    

15. It is thus clear that "Thomas Nelson Funeral Home, P.A." cannot be a fictitious name and the use of this name in the yellow-page advertising is false, fraudulent and intended to deceive. By advertising that he was operating a funeral home at the address registered and licensed as the funeral establishment of Stowers Funeral Home, Respondent violated the provisions of Section 470.024(8), Florida Statutes, above quoted.

16. Exhibit 2, the yellow pages for the Tampa telephone directory for 1980, does not contain a listing headed "Funeral Homes." Accordingly, Respondent must be found not guilty of Count V, which alleges he was listed under the heading of Funeral Homes in these advertisements.

From the foregoing it is concluded that, except as noted above, Respondent, Thomas F. Nelson, Jr., and Thomas Nelson Funeral Home, P.A., violated the various provisions of Chapter 470, Florida Statutes, as alleged. It is, therefore,

RECOMMENDED that the license of Thomas F. Nelson, Jr. as a Funeral Director and Embalmer be suspended for a period of one year.

Entered this 31st day of July, 1981.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Kay J. McGucken, Esquire

504 Pierce Street Tampa, Florida 33602

Docket for Case No: 81-000989

Orders for Case No: 81-000989