STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2823

) RANDELL ELLIS AULTMAN and THE ) AMERICAN FUNERAL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on February 18, 1982, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent/ Randell Ellis Aultman, pro se Aultman: Route 3, Box 525

Crestview, Florida 32536

For Respondent/ Patrick Grover The American 715 8th Avenue

Funeral Company: Pensacola, Florida 32501

BACKGROUND

In an Administrative Complaint dated October 13, 1981, Petitioner, Department of Professional Regulation, Board of Funeral Directors and Embalmers, has charged that Respondents, Randell Ellis Aultman and The American Funeral Company, have violated Subsections 470.036(1)(e) and (o), Florida Statutes, for which disciplinary action against their funeral director, embalmer and funeral establishment licenses should be taken. 1/ In summary form it is alleged that

1. between April and June, 1981, Respondents failed to file death certificates on ten individuals in a timely fashion as required by Section 382.081, Florida Statutes, thereby violating Subsections 470.036(1)(e) and (o), supra; and (2) between April and June, 1981, Respondents failed to timely apply for a burial- transit permit on six individuals and that no such permit accompanied the bodies when they were transported out-of-state as required by Subsection 382.061(2), Florida Statutes, thereby violating the provisions of Subsections 470.036(1)(e) and (o), supra.

   Respondents disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was transmitted by Petitioner to the Division of Administrative Hearings on November 10, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated January 6, 1982, the final hearing was scheduled for February 18, 1982, in Pensacola, Florida. Pursuant to the provisions of Rule 28-5.1055, Florida Administrative Code, the undersigned made a diligent inquiry of Respondent American Funeral Home's prospective representative, Patrick Grover, its president, to assure that he was qualified to appear in this proceeding and capable of representing the rights and interests of Respondent. Such a finding was made and read into the record.

   
   

   At the final hearing, Petitioner presented the testimony of Faye Sturdivant, Chief Deputy Registrar of the Escambia County Health Department, and Betty M. Howard, Chief Deputy Registrar of the Santa Rosa County Health Department, and offered Petitioner's Exhibits 1 - 5, each of which was received into evidence. Respondent Aultman testified on his own behalf while Respondent American Funeral Home presented the testimony of its president, Patrick Grover, and offered Respondent's Exhibit 1, which was received into evidence.

   
   

   The transcript of hearing was filed on March 19, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner on March 29, 1982, and have been considered by the undersigned in the preparation of this order.

   Findings of fact not included in this order were considered irrelevant, immaterial to the results reached, or not supported by competent and substantial evidence.

   
   

   The issue herein is whether Respondents' licenses as funeral director, embalmer and funeral establishment should be revoked or suspended, or whether other disciplinary action should be taken against them for alleged violations set forth in the Administrative Complaint dated October 13, 1981.

   
   

   Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

   1. At all times relevant hereto, Respondent, Randell Ellis Aultman, held funeral director license number FD 0000970 and embalmer license number EM 0001134 issued by Petitioner, Department of Professional Regulation, Board of Funeral Directors and Embalmers. Respondent, The American Funeral Company (American), was issued funeral establishment license number FH 0001189 by Petitioner. It is currently authorized to operate a funeral establishment at 715-Eighth Avenue, Pensacola, Florida.

      
      

   2. Aultman served as funeral director for American from May 1, 1981 through June 30, 1931, when he terminated employment to take another position in Tampa. During his tenure as director, Aultman had an informal agreement with his employer whereby Aultman was responsible for doing the funeral work and embalming while the president of the firm would take care of all paperwork, including the filing and securing of all necessary certificates and permits.

      
      

   3. When Aultman terminated employment with American on July 1, 1981, he visited the offices of the Escambia County Health Department to file the monthly embalmers' affidavit and was advised that a number of certificates and permits

      were either late or not on file. He was also shown a letter from the State sent to him in care of the funeral home on June 10, 1981, and which he had not previously seen, which outlined the filing deficiencies. This was the first occasion that Aultman realized something was wrong.

      
      

   4. Upon the death of an individual, the funeral establishment types certain information on a certificate, carries it to a medical doctor to sign and complete, and then files the completed certificate with the Health Department in the county where the individual died. The physician in charge of the patient's care is required to sign the certificate within 48 hours after death. The completed certificate must be filed by the funeral director within 72 hours after the death of the individual, unless an extension of time is requested by the doctor or establishment within that time. The extension is granted by the custodian of vital statistics, who is also known as the chief deputy registrar. Extensions normally authorize a director an additional five days in which to file the certificate.

      
      

   5. The foregoing procedure applied to all hospitals in Escambia County except West Florida Hospital. When deaths occurred in that hospital the hospital itself typed the information on the death certificate, assumed the responsibility of getting the physician to complete and sign the form, and then forwarded the form to the local Health Department. Once the Department received the form, it notified the funeral establishment to send its director to the registrar's office and sign off on the form. In these cases, the funeral establishment was unaware of the time that had elapsed since the person's death, and otherwise had no control over the actions of the hospital. This procedure was sanctioned by the Health Department and considered to be a "policy" within Escambia County.

      
      

   6. A review of the Escambia County Health Department records revealed that American handled the bodies of the following deceased, and that their dates of death and the dates when death certificates were filed with that Department are as follows:

      
      

      NAME	DATE OF DEATH	DATE CERTIFICATE FILED
      Evie Brooks	4/25/81	5/26/81
      Lusendia Johnson	5/5/81	5/27/81
      Edra Burnham	5/8/81	5/18/81
      Maude M. Morgan	5/14/81	5/25/81
      Michael E. Lord	6/9/81	7/10/81
      Dabney F. Powell	6/11/81	7/10/81
      John A. Davis	6/13/81	7/10/81
      Lane Jernigan	6/21/81	8/11/81

      
      

      All deaths occurred while Aultman was funeral director, except Brooks, who died before Aultman took the position. Five-day extensions were obtained for Lord, Powell, Davis and Jernigan; however, their certificates were still not timely filed. The certificate of Jernigan was signed and filed by a funeral director in Gulf Breeze, thereby relieving American of responsibility for filing the certificate. Of the eight individuals, only two, Johnson and Burnham, were transported out-of-state for burial. Three of the deceased, Burnham, Morgan and Davis, died in West Florida Hospital in Pensacola. The certificate of Burnham had incorrect dates, for it reflected the doctor and registrar had signed the certificate almost two months before the death.

   7. When a body is to be transported out-of-state for burial, it is necessary that the funeral director obtain a burial-transit permit to accompany the body prior to the removal of the body from the state but in no event later than 72 hours after death. The permits are normally issued by the Health Department in the county where the death occurred. They may also be signed by "subregistrars", who are employees of funeral establishments designated by the county registrar to act in that capacity. American had no subregistrar, and was accordingly required to procure a permit from other subregistrars or the local Health Department.

      
      

   8. A review of the records of the Escambia and Santa Rosa Health Departments disclosed the names and dates of death for the following individuals who were ultimately transported out-of-state by American for burial. In each case no permit accompanied the bodies nor was one even obtained.

      
      

      NAME		DATE OF DEATH	DATE PERMIT FILED
      Alice	E. Fuqua	4/24/81	None
      Dotti	L. Wright	4/26/81	None
      Thomas L. Myers		5/6/81	None
      Sarah Waters		6/26/81	None
      Arnold Waters		6/26/81	None

      
      

      Fuqua and Wright died before Aultman became director; the remaining three died during his tenure in that capacity. The president of American (Grover) attempted to timely obtain permits for Sarah and Arnold Waters from the chief deputy registrar in Escambia County; however, she refused since the deaths occurred in Santa Rosa County. Although the registrar in Santa Rosa attempted to contact Grover at least seven times concerning the permits, Grove did not return her calls. Instead, he transported the bodies sans permits to Alabama in order to meet a funeral deadline.

      
      

   9. American is not a full service funeral home. Its business is limited to handling bodies that are to be shipped out-of-town or state to other funeral homes. Because it is generally compensated from insurance proceeds, which are not paid until all paperwork is in order, it attempted to have all permits filed on a timely basis in order to insure prompt payment of claims. American attributed any delays in filing certificates to errors or lost papers in the Escambia County Health Department and a personality conflict with its chief deputy registrar, who has the responsibility for processing its filings. In fact, the chief deputy registrar contacted all funeral homes in Pensacola in May, 1981, and advised them not to sign any burial-transit permit applications for Respondent. These instructions were later rescinded but the subregistrars were then told they would be responsible for any untimely filings if they signed the permits. As a result, American was unable to use subregistrars for out-of- state burials and had to deal directly with the chief deputy registrar. More recently, Respondent was permitted to bypass the deputy registrar and deal directly with the head of the local Health Department.

      
      

   10. Respondent Aultman has returned to college and is no longer in the funeral business. He acknowledged that as director for American he was responsible by law for insuring that all permits and certificates were timely filed, but stated he was totally unaware of the delayed filings until he terminated employment on July 1, 1981.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   12. Subsection 470.036(1), Florida Statutes, enumerates the grounds for which disciplinary action may be taken against a licensee. As is pertinent here, they include:

       
       

       (1)(e) ... intentionally or negligently failing to file a report or record required by state...law... Such reports or records shall include only those which are signed in the capacity of a licensed funeral director or embalmer.

       
       

       (1)(o) Violation of any state law... affecting the handling, custody, care, or transportation of dead bodies.

       
       

       It is alleged in Count I that Respondents failed to timely file a death certificate on ten individuals as required by Section 382.081, Florida Statutes, thereby violating Subsections 470.036(1)(e) and (o). In Count II, it is alleged that the same statutes were violated by Respondents' failure to obtain within 72 hours after death a burial-transit permit on six bodies being transported out- of-state and that such permits did not accompany the bodies as required by Subsection 382.061(2), Florida Statutes. Each count will be dealt with separately.

       
       

   13. COUNT I - Here the charges stem from the alleged failure of American and Aultman to file death certificates on ten bodies within the time specified by law. The Department has established by competent and substantial evidence that a violation of the 72-hour requirement occurred eight times. However, in the case of Lane Jernigan, who died on June 21, 1981, her certificate was signed by a funeral director in Gulf Breeze, and any delay in filing the certificate cannot be attributed to Respondents. The responsibility for Evie Brooks, who died before Aultman became director, rested with Aultman's predecessor. Three deaths occurred in West Florida Hospital, where the evidence disclosed a different procedure for filing certificates was followed. There, the initial responsibility for filling out the form, obtaining the physician's signature, and carrying the certificate to the Health Department was assumed by the hospital. Only after these steps were completed did the funeral establishment receive notification from the local registrar that a death certificate needed to be signed by the establishment's director. Although the responsibility for signing and filing the form in a timely fashion ultimately rested upon the director, by local practice, and with the blessing of the local registrar, the funeral director was bypassed until the hospital itself saw fit to file the required certificate. Accordingly, it is concluded that Respondent Aultman is guilty of having failed to timely file death certificates on three individuals (Johnson, Lord and Powell), and Respondent American is guilty of having failed to timely file death certificates on four individuals (Brooks, Johnson, Lord and Powell) . The remainder of the charges should be dismissed.

   14. COUNT II - The Department contends that Respondents "..... failed to apply for a burial permit within 72 hours after death..." on six individuals, and that "... the burial permit did not accompany the bodies of the deceased when (they were) transported out-of-state.... " 2/ The evidence established that five bodies were transported out-of-state without the necessary permits having being applied for or having accompanied the bodies. Two such occasions occurred prior to Aultman's tenure as funeral director, and cannot be attributed to him. Accordingly, it is concluded that Respondent Aultman is guilty of violating Subsection 470.036(1)(e) and (o) on three occasions, and Respondent American is guilty of violating the same provisions five times.

       
       

   15. In determining an appropriate penalty, it is recognized that by law, the funeral director is responsible for insuring that certificates are timely filed, and that permits accompany all bodies being transported out-of-state. Therefore, Aultman must be held accountable for these omissions. At the same time, it is noted that he relied upon an agreement with his employer that all paperwork would be taken care of by the establishment, and that he would be responsible only for "funeral" work. Only when he terminated employment did he realize that a number of certificate and permits were in arrears. Further, Aultman was only employed as director at American for two months, and there is no evidence that he has been subjected to disciplinary action as a licensee at any time during the last twenty years. Given these circumstances, and his willingness to cooperate in this proceeding, a public reprimand is adequate punishment.

       
       

   16. American's difficulties were largely attributable to a personality conflict between its president and the chief deputy registrar of Escambia County. In fact, American now processes its filings with the head of the County Health Department rather than dealing with the deputy registrar. The dispute was exacerbated by the deputy registrar's instructions to other area funeral homes to not sign off on any permits for American, notwithstanding the fact that this was and still is apparently a common practice in the trade. With the exception of two cases (Sarah and Arnold Waters), there was no intent by American to violate the law. Even those cases involved a dispute between Grover and the chief deputy registrar. Because payment for its services is dependent upon timely filings of permits and certificates, there was no motivation for American to circumvent the law. Given these circumstances, a public reprimand is appropriate together with a requirement that it file with Petitioner by month for the next six months a detailed listing of all bodies handled by Respondent, the date of death, and date death certificates are filed, and if a body is transported out-of-state, the date when a burial-transit permit was obtained.

3/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that (1) Respondent Randell E. Aultman be found guilty of

violating Sections 470.036(1)(e) and (o) on three occasions by reason of his

failure to timely file death certificates and that Aultman be found guilty of violating the same statutes for failure on three occasions to timely obtain a burial-transit permit and to see that such permits accompanied the bodies when being transported out-of-state, and (2) Respondent The American Funeral Home be found guilty of violating Subsections 470.036(1)(e) and (o) on four occasions by

reason of its failure to timely file death certificates, and that American be found guilty of violating the same statutes for failure to timely obtain burial- transit permits on five occasions and to see that such permits accompanied the bodies when being transported out-of-state. It is further

RECOMMENDED that Respondent Aultman be given a public reprimand and that Respondent The American Funeral Home be given a public reprimand and required to make six monthly filings as set forth in the Conclusions of Law portion of this order.

DONE and ENTERED this 5th day of April, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 5th day of April, 1982.

ENDNOTES

1/ The Administrative Complaint also charges Gary Mayes, a licensed funeral director and embalmer, with having violated the same statutory provisions.

However, Mayes opted for an informal hearing under Subsection 120.57(2), Florida Statutes, and is not a part of this proceeding.

2/ In its proposed findings of fact and conclusions of law, Petitioner contends that no burial-transit permits were obtained for ten bodies transported out-of- state. However, Count II charges Respondents with only having failed to comply with this requirement on six occasions; hence, the other four violations relied upon by Petitioner have not been considered since Respondents had no opportunity to prepare and defend against those specific charges.

3/ Petitioner's recommendation that the licenses of Respondents be revoked is too harsh given the circumstances and nature of violations herein. The acts of Respondents did not involve tricking or deceiving customers, or the negligent and incompetent performance of normal funeral home duties. While it is true, as Petitioner states, that the untimely filing of certificates could prevent a family from obtaining Social Security and VA benefits, insurance proceeds and the like, there was no evidence that any of these deprivations occurred.

Indeed, it appears the complaint herein was initiated by a local health department rather than by an injured person.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Randell Ellis Aultman Route 3, Box 525

Crestview, Florida 32536

Patrick Grover 715 8th Avenue

Pensacola, Florida 32501

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

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF FUNERAL DIRECTORS AND EMBALMERS

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

Petitioner,

vs. CASE NO. 81-2823

RANDELL ELLIS AULTMAN, (EM 0001134 FD 0000970, FE 0001134) and

THE AMERICAN FUNERAL COMPANY, (FH 0001189),

Respondent.

/

RECOMMENDED ORDER

This case came before the Board of Funeral Directors and Embalmers at its meeting held May 18, 1982, in Jacksonville Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Having heard argument of counsel for the Department of Professional Regulation and the Respondent, and following a review of the complete record of this proceeding, IT IS ORDERED:

1. The Findings of Fact in the Recommended Order are approved and adopted and incorporated herein by reference. The Board rejects Petitioner's Exceptions to the Findings of Fact.

2. The Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein by reference, with the following modifications:

   
   

   1. The Board adopts Exceptions (4)(a) to the Conclusions of Law in the Recommended Order as filed by the Petitioner. The Board therefore finds as follows:

      At Paragraph 3 of the Conclusions, the case of Lane Jernigan is the responsibility of the Respondents, as established by the clear evidence presented and the clear statements of

      Chapter 382, F.S. The three deaths that occurred in West Florida Hospital, in which burial transit permits and death certificates were not filed in a timely manner are the clear responsibility of the Respondents as licensees of the Board of Funeral Directors and Embalmers and for this Board to find otherwise would set a clear precedent for the future that would irrevocably hinder the enforcement of Chapters

      470 (Funeral Practice Act) and 382, Florida Statutes.

   2. The Board rejects those statements found in para- graph 5 of the Conclusions of Law in the Recommended Order, as well as the statements made in footnote 3 on page 10, of said Order, to the extent that such statements concern the circumstances appropriate to imposition of a penalty. The Board finds that such statements should be deemed to be in the nature of recommendations and not conclusions of law.

      
      

3. The Board rejects the Recommended Penalty contained in the Recommended Order as inappropriate under the circumstances.

THEREFORE:

IT IS ORDERED and ADJUDGED:

1. The Funeral Director and Embalmer licenses of the Respondent Aultman be and are hereby SUSPENDED for a period of one (1) year, but that such suspension be stayed pending Respondent's satisfactory compliance with the terms and conditions of a three year period of probation as follows:

   
   

   1. The Respondent Aultman shall comply with all rules and statutes governing the practice of funeral directing and embalming.

   2. The Respondent Aultman shall submit quarterly reportsto the Board office demonstrating compliance with such laws and rules in his practice of funeral directing and embalming.

      
      

2. The funeral establishment license of Respondent American Funeral Company be and is hereby REVOKED.

   
   

3. Respondent American Funeral Company shall pay an administrative fine in the amount of $2,500.

DONE and ORDERED this 11th day of June, 1982.

BOARD OF FUNERAL DIRECTORS AND EMBALMERS

Robert E. Ramsdell, Chairman

Randall Ellis Aultman Rt. 3, Box 525

Crestview, Florida 32536

Patrick Grover

The American Funeral Company

P.O. Box 17091 Pensacola, Florida 32522

Donald R. Alexander Hearing Officer

Dept. of Administration

Div. of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Joseph W. Lawrence II, Deputy General Counsel Patricia Gleason, Board Legal Counsel

Docket for Case No: 81-002823

Orders for Case No: 81-002823