STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, Board of Funeral ) Directors and Embalmers, )
)
Petitioner, )
)
vs. ) CASE NO. 82-658
) STANLEY K. LARKINS, E. MARION ) EVANS, RAYMOND D. ANDERSON, )
F.B. STONE and STONE'S FUNERAL ) HOME, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, on August 16, 1982, in Tampa, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Joseph W. Lawrence II, Esquire
Chief Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondents/ Delano S. Stewart, Esquire Larkins, Evans & 3558 North 29th Street Stone Funeral Home: Tampa, Florida 33605
Anderson: Raymond D. Anderson, pro se c/o Pughsley Funeral Home
3401 26th Street
Tampa, Florida 33506 PRELIMINARY STATEMENT
By a six count Administrative Complaint dated February 2, 1982, the Respondents were charged with certain stated violations of Chapter 470, Florida Statutes. Specifically, count one alleged a violation of Section 470.024, F.S., by failing to have at least one full-time funeral director in charge and to have a licensed funeral director reasonably available to the public during normal business hours for that establishment, in violation of Sections 470.036(1)(g), [fraud or deceit, or negligence, incompetency, or misconduct, in the practice of funeral directing], Section 470.036(1)(h), [violation of Chapter 470, F.S.], and Section 470.036(1)(o), [violating state law affecting the handling, custody,
care and transportation of dead human bodies]. In count two, it was alleged that Respondents violated Section 470.036(1)(f), (g), (h), (k), (m) and (o), F.S., and Rule 21J-21.03(3), F.A.C., by advertising goods or services in a manner which was fraudulent, false, deceptive, or misleading in form or content; fraud, deceit, negligence, incompetency or misconduct in the practice of funeral directing or embalming; a violation of the provisions of Chapter 479, F.S., and Rule 21J-21, F.A.C.; and making a false or misleading statement regarding the sale of services or merchandise in connection with funeral directing or embalming. Count three alleged that the Respondents knowingly employed unlicensed persons to practice funeral directing, in violation of Section 470.031(1)(f), F.S., and, as such, violated Section 470.036(1)(a), F.S. By aiding and abetting an unlicensed person to practice funeral directing, Respondents were alleged in count four to have violated Section 470.036(1)(n),
By allegedly allowing unlicensed persons to practice funeral directing without proper licensure in the State of Florida, Respondents in count five, were accused of violating Section 470.031(1)(a) and (h), F.S. Finally in count six of the Administrative Complaint, it was alleged that Respondents violated Section 470.029,F.S., and Sections 470.036(1)(a), (e), (g), (h), (k) and (o), F.S.
In support of the allegations contained in the Administrative Complaint, the Petitioner presented four exhibits and eight witnesses. Exhibits 1-4 were received into evidence. The Respondents presented only the testimony of the Respondent Larkins.
Proposed Recommended Orders containing findings of fact have been submitted by the parties. To the extent that the proposed findings are not reflected in this Order, they are rejected as either being not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence produced at the hearing, the following relevant facts are found:
At all times pertinent to this proceeding Respondent Larkins was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued licensed numbers FE 2310, E 2310 and FD 2106.
At all times pertinent to this proceeding the Respondent Anderson was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 2204, E 2204 and FD 2003.
At all times pertinent to this proceeding Respondent Evans was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 790, E 790 and 672.
At all times pertinent to this proceeding Respondent Stone was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 459, E 459 and 205.
At all times pertinent to this proceeding Respondent Stone Funeral Home was licensed as a funeral establishment by the Board of Funeral Directors and Embalmers, having been issued license number FH 214. The corporate officers of said establishment are Fannie B. Stone, President; Rosalyn Gordon, Secretary- Treasurer; and Raymond S. Gordon, Vice-President. Raymond S. Gordon's address
is the same as the Respondent funeral establishment, 2401 East Columbus Drive, Tampa, Florida.
Neither Raymond S. Gordon nor Rosalyn Gordon have ever been licensed as a funeral director, embalmer, funeral director intern or embalmer intern by the Florida Board of Funeral Directors and Embalmers. James Williams was a licensed funeral director in charge of Williams Funeral Home, Plant City, Florida, between October 1979 and March 1980. Williams was never the licensed funeral director in charge of the Respondent funeral establishment.
On or about October 28, 1976, the Board of Funeral Directors and Embalmers was advised that Respondent F.B. Stone had replaced William Gordon as the funeral director in charge of the Respondent funeral establishment. The Respondent Anderson replaced Respondent F.B. Stone as the funeral director in charge of Respondent establishment on August 4, 1980, and prior to that time, Respondent Anderson was the funeral director in charge of a Lakes Wales funeral home. The Respondent Anderson notified the Board of Funeral Directors and Embalmers that he was no longer the funeral director in charge of Respondent funeral establishment as of August 27, 1980. It was not until on or about October 1, 1980, that the Board of Funeral Directors and Embalmers was advised that Respondent Evans was the funeral director in charge of Respondent funeral establishment. By letter dated May 14, 1981, Respondent Larkins notified the Board of Funeral Directors and Embalmers that he was the funeral director in charge of Respondent funeral establishment as of April 1, 1981.
As a normal course of conduct, affidavits of cases embalmed and bodies handled by the Respondent funeral establishment were filed with the local registrar of vital statistics, more than five working days after the end of each month The following chart sets forth the months in question and the actual date of filing of the affidavits with the local registrar of vital statistics:
MONTH ACTUAL DATE OF FILING AFFIDAVIT
January 1980 February 28, 1980
February 1980 April 7, 1980
March 1980 October 14, 1980
April 1980 October 14, 1980
May 1980 October 14, 1980
June 1980 October 14, 1980
July 1980 October 14, 1980
August 1980 October 14, 1980
September 1980 (Signed October 7, 1980)
October 1980 (Received by Board December 1, 1980)
November 1980 (Signed December 9, 1980)
December 1980 January 29, 1981
January 1981 February 5, 1981
February 1981 March 18, 1981
March 1981 June 26, 1981
April 1981 June 26, 1981
May 1981 June 26, 1981
June 1981 July 9, 1981
July 1981 (Signed August 5, 1981)
August 1981 November 4, 1981
September 1981 November 4, 1981
October 1981 January 3, 1982
November 1981 January 3, 1982
December 1981 January 3, 1982
January 1982 February 14, 1982
February 1982 April 9, 1982
March 1982 April 9, 1982
April 1982 May 6, 1982
May 1982 June 4, 1982
June 1982 July 12, 1982
(Petitioner's Exhibit 1)
The Respondents were placed on notice, both written and oral, of the lateness of filing the affidavits of cases embalmed and bodies handled.
A review of Petitioner's Exhibit 1, the affidavits of cases embalmed and bodies handled, reflects that between July 1979 and September 1979, the affidavits were signed by Elliot C. Bruton as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge. Between October 1979, and March 1980, James Williams signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge and Williams was the licensed funeral director in charge of another establishment. Between the dates of April 1980, and July 1980, Respondent Anderson signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the funeral director in charge and Respondent Anderson was employed as the funeral director in charge during this same time period at a Lake Wales funeral home. Respondent Anderson informed an investigator for the Department of Professional Regulation that affidavits for the months of April through July were signed by him and submitted based upon the request of a previous Executive Director of the Board of Funeral Directors and Embalmers. However, Respondent Anderson also informed the investigator that after submitting the affidavits he remembered that the affidavits were incorrect in certain material respects as to the embalmer, but Respondent Anderson has never attempted to amend the affidavits. While the affidavit for September 1980, lists E. Marion Evans as the embalmer and the funeral director in charge, by letter dated October 7, 1980, the Respondent Evans informed the Board that he was the funeral director in charge as of October 1, 1980.
On or about November 1981, the Respondent funeral establishment amended its exterior sign to delete the name of Respondent F.B. Stone as the funeral director in charge and display instead the name of the actual full-time funeral director in charge, at that time, Respondent Larkins.
In late March 1981, Dessie Alexander's son, Alfred Alexander, died and Mrs. Alexander made arrangements through Respondent funeral establishment to have her son buried. She called the Respondent funeral establishment and left word for Raymond Gordon to call her back. Raymond Gordon then called her and she told him she wanted to release her son's body to him. Raymond Gordon then came to Dessie Alexander's home and asked her to sign a release paper so that he could pick up the body at the morgue, which she signed. Raymond Gordon called her later and asked her to come to the Respondent funeral establishment to make funeral arrangements. She and her family arrived at the Respondent funeral establishment and, with the assistance of Raymond Gordon, chose a funeral casket. Raymond Gordon took the family to the cemetery to purchase a cemetery lot for the burial. At the Respondent funeral establishment, Raymond Gordon assisted the family in determining the exact funeral arrangements necessary. Marion Evans, although present at the funeral establishment building at certain
times, was not involved in the formulation of the funeral arrangements and did not act in a supervisory capacity over Raymond Gordon. Raymond Gordon wrote the funeral purchase contract, and after determining and itemizing the charges, had the family sign the contract. At the funeral service of Alfred Alexander at a local church, Raymond Gordon and Rosalyn Gordon were present, with Ms. Gordon making the payments to the pianist and minister while Raymond Gordon coordinated the funeral services. Respondent Evans was not involved in conducting the funeral service of Alfred Alexander. During this time period, Respondent Evans was the funeral director in charge of the Respondent funeral establishment.
Thelma Collins utilized the Respondent funeral establishment on April 29, 1981, when her son, Anthony Bethea, died. Ms. Collins spoke with Raymond Gordon and then he, Stanley Larkins and another unidentified person came to her home. Raymond Gordon spoke with Ms. Collins at her home. At this time, Ms. Collins and Raymond Gordon discussed picking up the body, the time of death and other information concerning the deceased. Ms. Collins' funeral purchase agreement, Petitioner's Exhibit 4, was executed at the Respondent funeral establishment and was drafted, discussed and explained by Raymond Gordon to Ms. Collins when no other employees or agent of the Respondent funeral establishment was present. The funeral service was conducted at a local church and Raymond Gordon, Rosalyn Gordon and an unlicensed workman for the Respondent funeral establishment attended. Ms. Collins does not remember the presence of Respondent Larkins at the funeral service.
Marie Butler's sister, Cora Evans, died in January 1980, and the Respondent funeral establishment handled the funeral arrangements and services. Raymond Gordon arranged the funeral service, determined prices and contractual terms and conditions, assisted in determining the arrangements to be made for the funeral service, and conducted and directed the funeral services at the church and grave site. In June 1980, when Respondent Larkins was the registered funeral director in charge of the Respondent funeral establishment, Marie Butler's brother died. Raymond Gordon again personally handled all the funeral arrangements and services by arranging the funeral service, determining prices and contractual terms and conditions, assisting in determining the arrangements to be made for the funeral service, and conducting and directing the funeral services. Respondent Larkins was physically present during most of these activities but did not directly supervise the arrangements of the funeral services.
Virgilio O'Farrell died on May 11, 1981, during the time that Respondent Larkins was the funeral director in charge of Respondent funeral establishment. Gail Blackman arranged the funeral services for Mr. O'Farrell through Respondent funeral establishment. Ms. Blackman did not recall dealing with Respondent Larkins in arranging the funeral services through Respondent funeral establishment, but dealt instead with two unknown men from the Respondent funeral establishment. Respondent Larkins testified that during his employ at Respondent funeral establishment, April 1980 through the present, he has been the only licensed funeral director representing the Respondent funeral establishment.
Respondent Larkins remembered the Thelma Collins' transaction. On this occasion as well as others, Raymond Gordon was present but Larkins did most of the talking regarding the funeral arrangements. He remembered this particular case because it was the first funeral arrangement he handled in Progress Village.
The affidavits of cases embalmed and bodies handled were late in being properly filed due to the fact that Raymond Gordon was acting as the courier of the affidavits and he failed to timely post the same.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has charged Respondents with violations of Sections 470.024, 470.029, 470.031(1)(a) and (f), and 470.036(1)(a), (e), (f), (g), (h), (k), (m), (n) and (o), Florida Statutes and Rule 21J-21.03(5), Florida Administrative Code. These statutory and rule prohibitions provide that disciplinary action can be taken against the licenses of a funeral director, embalmer and funeral establishment for the following activities:
Section 470.024 - Funeral Establishment; licensure.-
A funeral establishment shall be a place at a specific street address or loca- tion and must consist of and maintain either a suitable room for storage of dead human bodies or a preparation room equipped with necessary ventilation and drainage and con- taining necessary instruments for embalming dead human bodies.
No person shall conduct, maintain, manage, or operate a funeral establishment unless an establishment operating license has been issued by the department for that funeral establishment.
Application for a funeral establish- ment license shall be made on forms furnished by the department, shall be accompanied by
a fee not to exceed $100 as set by depart- ment rule, and shall include the name of the licensed funeral director who is in charge of that establishment.
A funeral establishment license shall be renewable biennially pursuant to procedures, and upon payment of a fee not to exceed $100, as set by department rule.
If the practice of embalming is done at a funeral establishment, it shall only be practiced by a licensed embalmer.
Each licensed funeral establishment shall have at lease one full-time funeral director in charge and shall have a licensed funeral director reasonably available to the public during normal business hours for that establishment.
The issuance of a license to operate a funeral establishment to a person or entity who is not individually licensed as a funeral director does not entitle the person to practice funeral directing as defined in this
chapter, it being the intent of this chapter that such practice may be performed only by persons licensed as funeral directors.
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.
Every funeral establishment licensed under this chapter shall at all times be sub ject to inspection by the department or any of its designated representatives or agents or local or Department of Health and Rehabilita- tive Services inspectors. The department shall by rule establish requirements for inspection of funeral establishments.
Section 470.029 - Affidavit of cases embalmed and bodies handled.-
Each funeral establishment or direct disposal establishment shall report monthly on a form prescribed and furnished by the department the name of the deceased and such other information as may be required
with respect to each dead human body embalmed or otherwise handled by the establishment.
Such forms shall be signed by the embalmer who performs the embalming and the funeral director in charge of the establishment or by the direct disposer who disposes of the body. These reports, in affidavit form, shall be submitted to the local registrar of vital statistics within 5 working days after the end of each month. The local registrar shall forward said reports to the department within 10 days after receipt.
Section 470.031 - Prohibitions; penalties.-
(1) No person shall:
(a) Practice funeral directing, embalming, or direct disposition unless the person holds an active license or registration under this chapter.
* * *
Knowingly employ unlicensed persons
in the practice of funeral directing, embalm- ing, or direct disposing.
Section 470.036 - Disciplinary proceedings.-
The following acts constitute grounds
for which the disciplinary actions in subsection
may be taken:
(a) Violation of any provision of section 470.031 or section 455.227(1).
* * *
Making or filing a report or record which the licensee knows to be false, inten-
tionally or negligently failing to file a report or record required by state, local, or federal law, willfully impeding or ob- structing such filing, or inducing another
person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed funeral director or embalmer.
Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
Fraud or deceit, or negligence, incom- petency, or misconduct, in the practice of funeral directing or embalming.
A violation or repeated violation
of this chapter or of chapter 455 and any rules promulgated pursuant thereto.
* * *
(k) Misrepresentation or fraud in the con- duct of the business of or profession of the licensee.
* * *
Making any false or misleading state- ment, oral or written, directly or indirectly, regarding the sale of services or merchandise in connection with funeral directing or em- balming, on a preneed or at-need basis.
Aiding or abetting an unlicensed per- son to practice any licensed activity.
Violation of any state law or rule or municipal or county ordinance or regulation affecting the handling, custody, care, or transportation of dead bodies.
Rule 21J-21 - Florida Administrative Code
21J-21.01 - Licensure. All funeral establish- ments as defined in Section 470.002(7) shall apply to the Department for a license at least
30 days before the establishment opens for business. In order to be licensed, the esta- blishment shall receive a satisfactory rating on an inspection pursuant to 21J-21.03,
F.A.C. The license will be effective until the scheduled biennial renewal date. Each applicant shall meet the qualifications speci- fied in Section 470.022(1), (5) and (6), F.S., and shall pay the fee specified in Rule
21J-21.04, F.A.C.
21J-21.015 - Branch Chapels. Any licensed establishment which operated a branch chapel on June 30, 1979, pursuant to and in ac- cordance with the terms of Section 470.30(8),
F.S. (1977), may operate that branch chapel pursuant to and in accordance with Section 470.024(10), F.S. (1981)
21J-2l.02 - Inspections.
All new funeral establishments shall
be inspected and receive a satisfactory rating prior to the issuance of an establishment license and shall comply with the criteria
set forth in Rule 21J-21.03.
All existing funeral establishments shall be inspected once every two (2) years or as soon thereafter as is convenient to in- spectors as provided in Section 470.024(9), F.S., and shall comply with the criteria set forth in Rule 21J-21.03, F.A.C.
A funeral establishment shall be in- spected by the Department under the following circumstances, and the Department shall be notified by the owner of the establishment at least 10 days before items (a), (b) or (c) occur:
When a funeral establishment moves to a new location;
When ownership of a funeral establishment is changed or other- wise transferred;
When major alterations or modi- fications in the physical structure of a funeral establishment are made;
When a consumer complaint is made regarding a specific funeral establishment, and an inspection is required.
21J-21.03 - Inspection Criteria.
The Department shall inspect funeral esta- blishment on the basis of the following:
There shall be either a refrigeration room for the storage of dead human bodies or a preparation room equipped as follows:
Adequate ventilation, including an exhause fan with proper screening adequate to exchange the air in the room with outside air at least twelve (12) times per hour;
Operating table with non-porous surface;
Sanitary floors with non-porous surface;
Sanitary waste receptacles;
A hand sink with hot and cold water, a service sink and a floor drain connected to central sewage system or septic tank, the floor drain may be replaced by an alternative method of removal of body fluids which meets the sanitation requirements of 21J-21.03(1)(c) and (h);
The following instruments properly maintained:
1 machine for embalming or gravity equipment
1 aspirator
1 master trocar
1 aneurism needle
1 bone separator
1 scalpel
1 drain tube
1 arterial tube
1 scissor
surgical needles
injector and needles
eye caps
surgeon's thread
l head rest
razor and blades
absorbant cotton
antiseptic soap
disposable sheet(s)
towel(s)
disinfectant
tubing
The following minimum supplies for embalming dead human bodies:
2 bottles arterial fluid per body
1 bottle cavity fluid per body
supply of hardening compound for autopsies
Room shall be maintained in clean and sanitary condition.
The requirements of Rule 21J-21.03(1) may be satisfied by the use of a centralized embalming facility provided that:
Each establishment has a room for the storage of dead human bodies;
The Department is notified of the name and location of the centralized facility;
The centralized facility meets the requirements of Rule 21J-21.03(1); and
The centralized facility is within a reasonable distance of the establish- ments served and available for use on a continuous full-time basis.
The funeral establishment shall have on site or immediately available sufficient sealed containers of a type required for the transportation of bodies with contagious
diseases as specified in Rule 10D-37.14, F.A.C.
Where caskets are displayed, the prices shall be conspicuously displayed.
Each funeral establishment shall dis- play at the public entrance the name of the full-time funeral director in charge.
Each funeral establishment shall dis- play in a conspicuous place the notice required by Section 455.231, F.S.
21J-21.04 - Fees.
The application fee for a funeral establishment shall be $100 and will include licensure for the remainder of the biennium during which license application is granted.
The biennial renewal fee for funeral establishments shall be $100.
In Count I it is alleged that Respondents violated Section 470.024, Florida Statutes, by failing to have at least one full-time funeral director in charge and to have a licensed funeral director reasonable available to the public during normal business hours for that establishment and, as such, violated Sections 470.036(1)(g), (h) and (o), F.S. The requirements for a licensed funeral director in charge, full-time and reasonably available were not followed by the Respondent funeral establishment from July 1979 until the appointment of Respondent Evans in October 1980. After that date the Respondent funeral establishment was hampered in its operation by the actions of one of its corporate owners, Raymond Gordon, who on occasion was able to act as the funeral director during the time period of January 1980 through May 1981. These actions by Raymond Gordon were not disputed by counsel for the Respondents. Therefore, the Respondent funeral establishment violated Section 470.024(6), F.S., and as such, also violated Section 470.036(1)(h), F.S. Following the period October 1980, a licensed funeral director was reasonably available to the public. No evidence was presented which would demonstrate that Respondent Evans or Larkins were responsible for the lack of a funeral director prior to October 1980, or the actions of Raymond Gordon. In fact, Evans had attempted to curtail Raymond Gordon's activities, but not surprisingly, met with limited success due to Gordon's personal economic interest in the funeral establishment.
In Count II of the Administrative Complaint, it is alleged that Respondents violated Section 470.036(1)(f), (g), (h), (k), (m) and (o), F.S., and Rule 21J-21, F.A.C., by advertising goods or services in a manner which was fraudulent, false, deceptive, or misleading in form or content; fraud, deceit, negligence, incompetency, misconduct in the practice of funeral directing; a violation of Chapter 470 and Rule 21J-21, F.A.C.; and making a false or misleading statement regarding the sale of services or merchandise in connection with funeral directing. By not setting forth the name of the actual funeral director in charge of the Respondent funeral establishment until November 1981, especially by setting forth the name of a funeral director no longer present with the funeral establishment, the Respondent funeral home violated Section 470.036(1)(f), Florida Statutes. However, no evidence was submitted that showed that the Respondents Larkins, Evans, Stone or Anderson were responsible for the sign in question or that any person was actually misled or otherwise injured by the failure of the funeral establishment to keep its sign current. To the extent that customers sought out the funeral establishment, they did so on the basis of the reputation of the founders of the home in the community and not based on who was the funeral director in charge ate any given point in time or whose name appeared on the funeral home's exterior sign.
In Counts III, IV and V of the Administrative Complaint, it is alleged that Respondents violated Section 470.036(1)(a) and (h), Florida Statutes, by violating Sections 470.031(1)(f), F.S., in that Rospondents knowingly employed unlicensed persons to practice funeral directing; by aiding and abetting unlicensed persons to practice funeral directing, Section 470.036(1)(n), F.S., and by violating the provisions of Section 470.036(1)(a), F.S., by the fact that unlicensed persons practiced funeral directing without proper licensure in the
State of Florida, in violation of Section 470.031(1)(a), F.S. Through the testimony of the clients of Respondent funeral establishment, the admissions of Respondent Anderson, the testimony of Respondent Larkins and statements by counsel for Respondents, the Petitioner demonstrated that the unlicensed practice of funeral directing was a recurring problem at the Respondent funeral establishment. Compare, Section 470.039(1), F.S., stating that nothing in Chapter 470 shall be construed to limit the sale of, inter alia, caskets, or funeral merchandise by any person. The owners of the Respondent funeral home were knowledgeable concerning this problem and failed to take the necessary steps to correct the situation prior to the initiation of this proceeding.
Respondent Anderson took action after he was fired by Raymond Gordon from employment with the Respondent funeral establishment. The Respondent Larkins has likewise taken steps to attempt to ensure that Raymond Gordon would not interfere in his family's funeral directing business. The Respondent funeral establishment is guilty of violating the above cited statutory provisions by permitting Raymond Gordon to practice funeral directing without a license. The Petitioner, however, failed to show that the remaining Respondents either employed or knowingly aided and abetted Raymond Gordon to practice without a license. Under such circumstances the state failed to carry its burden of proof as to the individual Respondents on these counts.
Finally, in Count VI of the Administrative Complaint it is alleged that Respondents violated Section 470.029, F.S., by failing to file the affidavits of cases embalmed and bodies handled in a proper and timely manner. As such, it is alleged that Respondents violated Sections 470.036(1)(a), (d), (g), (h), (k) and (o), F.S. The Petitioner showed that the affidavits were submitted with inaccurate information and were filed in an untimely fashion during the time periods in which the Respondents were responsible for the same.
While the untimeliness and inaccurate information contained in the affidavits could be attributed to problems in the family business resulting from the deaths of the original owners and founders, a turnover of employees and the actions of Raymond Gordon, the Respondents nonetheless had a statutory duty to comply with the reporting requirements relating to disposition of bodies.
In its Proposed Recommended Order the Department has urged that the licenses of the Respondents Larkins, Evans, Stone and the funeral establishment be revoked, and that the license of Respondent Anderson be placed on reporting probation for two years. Counsel for the Respondents has represented to the undersigned that he has negotiated a sale for the funeral home, a long established family business in the black community, and argued that a suspension of the licenses of the Respondent funeral establishment, Evans or Larkins would be too severe. The Hearing Officer concurs in this recommendation and notes that many of the problems which arose in this business were not the result of any intentional misdoings on the part of the Respondents, but rather were due to Mrs. Gordon's inability to adequately manage the business following the death of her husband and the incapacitation of her mother-in-law.
With the exception of the inaccurate and untimely filing of affidavits of cases embalmed and bodies handled, the undersigned considers the violations committed under the facts of this case to not justify the imposition of either revocation or suspension of the licenses of the individual Respondents.1/ The violation of the statute, however, requires the imposition of a two year reporting probationary period to ensure that the Respondents perform this statutory requirement in a thorough and timely manner regardless of where they are employed. Additionally, a fine of $750 per Respondent should be imposed to
cover the costs of this prosecution. See Section 470.036(2)(c) and (d), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered placing the Respondents Larkins, Evans, Anderson, Stone and Stone Funeral Home on reporting probation for a period of two years and imposing an administrative fine of $750 per Respondent. During the probationary period, the Respondents should be required to regularly certify to the Board that they are complying with all requirements of Chapter 470, Florida Statutes in a timely and accurate manner.
DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Department of Administration Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1981.
ENDNOTE
1/ The line between what a corporate owner who does not hold a funeral directing license may or may not do in regard to his own business and the sale of merchandise is one which need not be determined in this case since both sides agreed that Mr. Gordon's actions were not appropriate. If suspension or revocation were to be imposed, a higher degree of proof would be required to be demonstrated than was presented in this case, as to these particular allegations. See Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).
COPIES FURNISHED:
Joseph W. Lawrence II, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Samuel R. Shorstein, Secretary
Delano S. Stewart, Esquire Department of Professional 3558 North 29th Street Regulation
Tampa, Florida 33605 130 North Monroe Street Tallahassee, Florida 32301
Raymond D. Anderson
c/o Pughsley Funeral Home Edward P. O'Dowd 3401 26th Street Executive Director
Tampa, Florida 33506 Florida Board of Funeral Directors and Embalmers
Room 507, 111 E. Coastline Drive
Jacksonville, Florida 32202
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 7225
9543
STANLEY K. LARKINS, E. MARION DOAH CASE NO. 82-658 EVANS, RAYMOND D. ANDERSON,
B. STONE AND STONE'S FUNERAL HOME, (FH 0000214)
Respondent.
/
FINAL ORDER
This cause came before the Florida Board of Funeral Directors and Embalmers at its duly noticed meeting of January 11, 1983, at Jacksonville, Florida. Upon a complete review of the record, including the transcript and all relevant documents fled, and upon argument presented by counsel, the Board makes the following findings and conclusions:
FINDINGS OF FACT
An Administrative Complaint dated February 2, 1982, attached and incorporated herein, was duly served upon the Respondent. Upon contest, the matter was referred to the Division of Administrative Hearings.
A Recommended Order, copy attached, was entered on or about November 8, 1982. The Board hereby fully adopts and incorporates by reference the Findings of Fact as contained in the Recommended Order.
On or about November 29, 1982, the Petitioner filed Exceptions to the Recommended Order, a copy of which is attached. None of those exceptions address the findings as contained in the Recommended Order.
CONCLUSIONS OF LAW
The Board hereby adopts as its own and incorporatesby reference paragraphs 1, 2, 3, 6, and 7 of the Conclusions of Law as contained in the Hearing Officer's Recommended Order with the exception of the last two sentences of paragraph number three.
The remainder of the Hearing Officer's Conclusions of Law are rejected as being inconsistent with the stated findings of fact.
Based upon the foregoing, the Board concludes that Respondents Larkins, Evans, Stone and Anderson are guilty of violating Section 470.036(1)(f), (g), (h), (k), (m), and (o), F.S. and Rule 21J-21.03(3), F.A.C. as charged in Count II of Petitioner's Administrative Complaint and further that Respondents Larkins, Evans, Stone and Anderson are guilty of violating Sections 470.021(1)(f), (a), (e), (g), (h), (k), (n), and (o), F.S. and 470.029, F.S., as alleged in Counts III, IV, V and VI of the Administrative Complaint,
It is therefore ORDERED that Respondents Stanley K. Larkins, E. Marion Evans, Raymond D. Anderson, F.B. Stone and Stone Funeral Home be placed on reporting probation for a period of two years during which time they shall submit quarterly reports as to their compliance with all laws and rules governing the practice of funeral directing and embalming and documenting that they are complying with all applicable laws and rules governing funeral directing and embalming. It is further ORDERED that each of the above named Respondents be fined $750 which shall be paid within 30 days from the effective date of this Order.
This ORDER shall become effective 15 days after the date of filing with the Department of Professional Regulation. DONE AND ORDERED this 11th day of January, 1983, at Jacksonville, Florida.
BOARD OF FUNERAL DIRECTORS AND EMBALMERS
ROBERT RAMSDELL
Chairman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded to Delano S. Stewart, Esquire, 3558 North Twenty-Ninth Street, Tampa, Florida 33605 - in behalf of Stanley Larkins, Marion Evans, and Stone's Funeral Home, and a copy to Raymond D. Anderson, c/o Pughsley Funeral Home, 3401 Twenty- Sixth Street, Tampa, Florida 33506, and a copy to Joseph W. Lawrence, II, Chief.Attorney, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, this 9th day of February , 1983.
EDWARD O'DOWD
ADDITIONAL COPIES FURNISHED:
Jeffrey A. Miller, Assistant Attorney General Fannie B. Stone (EM 459, FD 205, FE 459)
2511 19th Avenue
Tampa, Florida 33605
E. Marion Evans (EM 790, FD 672, FE 790) c/o Tillman Riverview Funeral Home
9150 N. W. 17th Avenue Miami, Florida 33150
Stanley K. Larkins (EMN 2310, FD 2106, FE 2310) c/o Stone's Funeral Home
2401 E. Columbus Drive Tampa, Florida 33605
| Issue Date | Proceedings |
|---|---|
| Feb. 14, 1983 | Final Order filed. |
| Nov. 08, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 11, 1983 | Agency Final Order | |
| Nov. 08, 1982 | Recommended Order | Respondents allowed unlicensed practice and took too long to file necessary death certificates. Two-year reporting probation and $750 fine. |
