STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-669

) 82-1494

FRANKLIN FUNERAL HOME, ) 82-1495

NETTIE FRANKLIN, and )

FRANKLIN FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on 27 October 1982 at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II,, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Theodore N. Taylor, Esquire

Post Office Box 2133 Plant City, Florida

and

Jerry Franklin, pro se 1420 North Nebraska Avenue Tampa, Florida 33602

By Administrative Complaint dated 2 February 1982, Department of Professional Regulation, Petitioner, in Case No. 82-669 seeks to revoke, suspend or otherwise discipline the license of Thomas Nelson as a funeral director and Franklin Funeral Home at Tampa, Florida, as a licensed funeral establishment.

As grounds there for it is alleged that at the Respondent funeral home in Tampa Nelson allowed unlicensed personnel to perform functions that could only be provided by licensed personnel, and that he practiced funeral directing while his license was suspended. Prior to the commencement of these proceedings, Nelson surrendered his license as a funeral director and he was dismissed from this case.

By Administrative Complaint dated 2 February 1982, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the licenses of Nettie Franklin and Willie B. Williams as funeral directors and of the Franklin Funeral Home at Avon Park, Florida. As grounds

therefor it is alleged that Respondent allowed unlicensed personnel to perform functions of a funeral director, failed to have its licensed funeral director available on the premises, displayed the name of a funeral director who was not available to act as funeral director, and submitted inaccurate monthly affidavits of cases embalmed and bodies handled by Respondent funeral establishment. Prior to the commencement of this hearing Willie B. Williams died and the charges against him were dropped.

By Administrative Complaint dated 9 February 1982, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the licenses of Nettie Franklin and Willie B. Williams as funeral directors and of Franklin Funeral Home at Avon Park, Florida, as a licensed funeral establishment. As grounds therefor it is alleged that Respondent funeral directors allowed unlicensed personnel to perform the functions of a funeral director at the Respondent funeral home in Avon Park, Florida; that between October 1980 and December 1981 Respondent funeral establishment failed to have a licensed funeral director available on the premises during normal working hours and submitted monthly affidavits of cases embalmed and bodies handled by Respondent funeral establishment with incorrect and/or incomplete information. Prior to the commencement of these proceedings Williams died and the charges against him were dropped.

At the commencement of this hearing, Theodore Taylor, Esquire, entered a special appearance for the purpose of submitting a motion for continuance. As grounds therefor Taylor stated he had been approached one day before the hearing to represent Respondents and had not had time to prepare for a hearing. It is noted that these cases had been scheduled for hearing by Notice of Hearing dated August 27, 1982, and that Respondents had been given adequate notice in which to prepare for this hearing. The Motion for Continuance was denied and, at his request, Taylor was excused from further participating in these proceedings.

Thereafter, Petitioner called nine witnesses; Jerry Franklin testified on behalf of Respondent; and five exhibits, including the deposition of Jerry Franklin, Sr., were admitted into evidence

Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed unnecessary to the results reached.

Jerry Franklin, Sr., the owner of Respondent funeral homes, but not a party to these proceedings, submitted a document entitled RECOMMENDATIONS in which he requests another hearing be granted in this matter because he was not represented by an attorney. Not only was timely notice of these proceedings given to the Respondent, but also Jerry Franklin, Sr., as a result of prior participation in similar proceedings in 1977 at which the license of his Tampa funeral home was suspended for six months, was fully aware of the nature of these proceedings.

FINDINGS OF FACT

1. Jerry Franklin, Sr., owns funeral establishments bearing the name of Franklin Funeral Home in Tampa, Lakeland and Avon Park, Florida. He is not licensed by Petitioner as a funeral director or embalmer. Each of these locations is licensed as a funeral establishment.

   
   

2. Nettie Fay Franklin is the daughter of Jerry Franklin, Sr., and is a licensed funeral director and embalmer. She was so licensed at all times here relevant.

3. Jerry Franklin, Jr., was a licensed funeral director and embalmer until his license was revoked in 1977. He was unlicensed at all times here relevant.

   
   

4. Thomas F. Nelson, Jr., was licensed as a funeral director and embalmer until he surrendered his license to Petitioner in April of 1982, at which time he was dropped as a party-respondent in Case 82-669.

   
   

5. Willie B. Williams was licensed as a funeral director and embalmer until he died in December, 1981. He was dismissed as a party-respondent in Cases 82-1494 and 82-1495.

   
   

6. Ed Farmer operated the Franklin Funeral Home in Avon Park, Florida, during the latter part of 1980 and the first part of 1981. He was never licensed as a funeral director or embalmer. During the time he operated this funeral home he performed the services of a funeral director such as arranging for and conducting funerals, although, without a license, performance of such services is unauthorized.

   
   

7. Diane Gossett, an investigator for the Department of Professional Regulation, visited the Franklin Funeral Home in Avon Park, Florida, on November 16, 1981. The sign on the door said Franklin Funeral Home, Willie W. Benton, Licensed F.D.. & Emb. in Charge." No one. responded to the door bell and there was no evidence of persons present. No evidence was presented that Benton was not registered as a funeral director and embalmer. The Benton funeral director sign was erected by Jerry Franklin, Sr., in September, 1981, while in the company with Leo Huddleston.

   
   

8. Clara Mae Foster died on 31 March 1981. Her adult grandchildren contacted Jerry Franklin, Sr., who transported the body from the hospital to the Avon Park funeral home on that date. These grandchildren went to the Franklin Funeral Home the following day to make arrangements for the funeral. There they talked to Jerry Franklin, Sr., who showed them caskets and discussed the price of the funeral services, transportation, flowers, time for viewing the body, etc. When told they wanted the funeral on Saturday, April 4, Franklin replied that he had to go to Jacksonville for his son's funeral on that date and it was agreed Jerry Franklin, Jr., would conduct the funeral services.

   
   

9. Funeral services for Foster were scheduled for 11 a.m. on April 4, 1981, and around 11:30 a.m. Jerry Franklin, Jr., came to the home of the Foster family to collect the balance of the amount owed for the funeral. Some arguments arose and a grandson wrote out a check for Franklin which he reportedly refused to accept and demanded cash. Nevertheless, the funeral proceeded with Franklin, Jr., apparently in charge of all functions. No witness reported seeing Nettie Fay Franklin at this funeral although Jerry Franklin, Sr., testified she was in charge of this funeral. Nettie Fay Franklin prepared the Foster body for burial after it was transported to the Franklin Funeral Home in Avon Park.

   
   

10. Leo Huddleston, an investigator for Petitioner, visited all of the Franklin funeral establishments several times while conducting his investigation. He last visited the Tampa funeral home around June 1, 1982, and the name on the funeral director sign at this funeral home still read "Thomas Nelson," although Thomas Nelson had surrendered his license in April, 1982. In July, 1981, when Huddleston visited the Franklin Funeral Home in Avon Park, the sign read "Jerry and Nettie Franklin, Jr., Funeral Directors in Charge." In September, 1981, Huddleston visited the Avon Park facility in company with Jerry Franklin, Sr., who installed a sign reading "William B. Benton, Licensed F.D. &

    Emb. in Charge." In April, 1981, the sign at Lakeland Franklin Funeral Home had the name J. T. Bronson and the telephone number but did not indicate Bronson was the funeral director or embalmer. Huddleston also visited the Lakeland establishment with Jerry Franklin, Sr., September, 1981, at which time Franklin installed a hand-lettered sign reading "Nettie Franklin Lic. F.D. & Emb. in Charge."

    
    

11. Jerry Franklin's testimony, that he believed he could legally perform funeral director functions if a licensed funeral director was at the funeral home, is not credible. According to his own testimony, Franklin has been in the funeral business since he was 12 years old, some 53 years. Charges similar to those here involved were brought against the Franklin Funeral Home in Tampa in 1977 and Jerry Franklin, Sr., participated in those proceedings. His son, Jerry Franklin, Jr., lost his license as a funeral director after disciplinary proceedings had been brought against him. Jerry Franklin, Sr., was well aware that in preparing the funeral arrangements with the relatives of Foster he was performing acts the law requires be performed by a licensed funeral director.

    By his own admissions (Exhibit 5) he acknowledged that he frequently discussed and prepared funeral arrangements with the survivors of the deceased. It is only his claim, that he believed such actions proper so long as a licensed funeral director is on the premises, that is not believed. His conduct in selling caskets and making funeral arrangements is not surprising when performed by the owner of the funeral home living on the premises. Jerry Franklin, Sr., Lives at the Franklin Funeral Home in Tampa.

    
    

12. The Lakeland and Avon Park Funeral Homes failed to report the number of cases embalmed and bodies handled at those funeral homes during 1981 and 1982. All of the cases embalmed and bodies handled at the three funeral homes were reported by the Tampa funeral home.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 470.024, Florida Statutes, provides in part:

    
    

    (6) Each licensed funeral establishment shall have at least 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.

    
    

15. Respondent submitted no evidence to rebut Petitioner's witness that she could obtain, no response at the Avon Park funeral home when this establishment was visited during normal working hours,. Failure to have a funeral director reasonably available is a violation of the above-quoted statutory provisions.

    
    

16. Section 470.036, Florida Statutes, provides in pertinent part:

    
    

    1. The following acts constitute

       grounds for which the disciplinary actions in subsection (2) may be taken:

       (g) Fraud or deceit, or negligence, incompetency, or misconduct, in the prac-

       tice of funeral directing or embalming..

       (n) Aiding or abetting an unlicensed person to practice any licensed activity.

       
       

    2. When the board finds any licensee guilty of any of the grounds set forth in subsection (1) , it may enter an order

       imposing one or more of the following penalties:

       1. Denial of an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or to work under the supervision of another licensee.

       6. Restriction of the authorized scope of practice.

          
          

17. The evidence is uncontradicted that Jerry Franklin, Jr., acted as a funeral director at the funeral of Clara Mae Foster; that he performed these services with the full knowledge and participation of Jerry Franklin, Sr.; and, at the timed these services were performed, Jerry Franklin, Jr., was unlicensed. The evidence is less directs that Nettie Fay Franklin, who was registered as funeral director of the establishment at which the Foster funeral was held, authorized Jerry Franklin, Jr., to act as a funeral director at this funeral. However, Ms. Franklin embalmed the Foster body and was certainly aware that Jerry Franklin, Jr., was conducting these services. As the registered funeral director of the Avon Park establishment, Ms. Franklin had a duty to perform such functions of funeral director as were performed at that establishment. When she failed to do so she aided and abetted Jerry Franklin, Jr., to perform funeral services for which he was not licensed.

    
    

18. Furthermore, as the registered funeral director at the Avon Park funeral establishment Ms. Franklin had a duty to know if other persons were performing services at this establishment for which a license was required. The evidence was uncontradicted that Ed Farmer performed the functions of a funeral director at the Avon Park funeral home during the time Ms. Franklin was the registered funeral director at this establishment. Failure to take action to prevent this violation of the law leaves Ms. Franklin in the position of aiding and abetting Farmer to practice funeral directing without a license, or negligence in the practice of funeral directing by failing to take action to stop this violation.

    
    

19. Section 470.029, Florida Statutes, provides in pertinent part:

    
    

    Each funeral 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. . . . 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.

    
    

20. According to the testimony of Jerry Franklin, Sr., and Exhibits 2, 3 and 4, the funeral establishments at Avon Park and Lake land reported no bodies handled and the Tampa funeral establishment submitted erroneous reports which included names of bodies from the Avon Park and Lake land establishments.

    
    

21. No evidence was presented that unlicensed persons acted as funeral director or embalmer at the Tampa or Lakeland establishments.

    
    

22. From the foregoing it is concluded that Nettie Fay Franklin aided and abetted unlicensed funeral directors to perform the functions of a licensed funeral director, that she filed to properly report of deceased persons, handled at each establishment, and that the Avon Park establishment was leased to an unlicensed funeral director who performed functions authorized only by a licensed funeral director. It is

RECOMMENDED that the license of Nettie Fay Franklin as a funeral director and embalmer be suspended for a period of one (1) year and that the license of the Franklin Funeral Home in Avon Park be suspended for a period of one (1) year. It is FURTHER RECOMMENDED that the licenses of the Franklin Funeral Homes in Tampa and Lakeland be suspended for a period of six (6) months.

ENTERED this 30th day of November, 1982, at Tallahassee, Florida.

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 30th day of November, 1982.

COPIES FURNISHED:

Edward P. O'Dowd, Executive Director Board of Funeral Directors &

Embalmers

Department of Professional

Regulation

Room 507, 111 East Coast Line Drive Jacksonville, Florida 32202

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Theodore N. Taylor, Esquire Post Office Box 2133

Plant City, Florida

Jerry Franklin

1420 North Nebraska Avenue Tampa, Florida 32602

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NOS. 82-669

vs. 82-1494

82-1495

FRANKLIN FUNERAL HOME, (FH 393) (FH1020)

NETTIE FRANKLIN, AND (EM1363, FD1220, FE 1363)

FRANKLIN FUNERAL HOME, (FH 1136)

Respondent.

/

FINAL ORDER

This cause came before Board of Funeral Directors and Embalmers at its duly noticed meeting of January 11, 1983 at Jacksonville, Florida for final disposition, Upon a complete review of the record, including the transcript and all pleadings filed, and upon deliberation and advice, the Board finds and concludes as follows:

1. On or about February 2, 1982, an Administrative Complaint, copy attached, was filed and duly served upon the Respondents. Upon Respondents' filing of an Election of Rights, the matter was referred to the Division of Administrative Hearings for formal proceedings pursuant to Section 2057(1), F.S.

   
   

2. On or about November 30, 1982, a Recommended Order was entered, copy attached, by the Division.

   
   

3. On or about December 8, 1982, the Petitioner filed Exceptions to the Recommended Order wherein certain objections were made to the Hearing Officer's Conclusion of Law.

   
   

4. The Board hereby fully adopts the Finding of Fact as contained in the Recommended Order and incorporates the same by reference into the body of this Order.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Conclusions of Law as contained in the Hearing Officer's Recommended Order are hereby adopted and incorporated by reference into the body of this Order.

   
   

6. The Board additionally concludes that based upon the accepted factual findings, the Respondents are guilty of violating Section 470.036 (1)(f), (g), (h), (k), (m), and (o) F.S. as well as Rule 21J-21.03(5), F.A.C., in that Respondents engaged in misleading advertising, negligence, and or misconduct in violation of the rules concerning proper listing of the funeral director in charge at each of the three establishments.

   
   

7. It is therefore ORDERED that the funeral director's and embalmer's licensure of Respondent Nettie Franklin be revoked. The Board maintains jurisdiction over this cause to reinstate the license of Respondent Franklin upon a showing by the Respondent that she can abide and conform to the statutes and regulations of the State of Florida relating to funeral directing and embalming. The reinstatement shall be subject to a period of probation under such terms and conditions as the Board shall set forth in their Order authorizing the same. It is further ORDERED that a fine in the amount of $1,000 be assessed against Respondent Nettie Franklin.

   
   

8. With regard to Respondents Franklin Funeral Home, it is ORDERED that the establishment licenses of the Tampa, Lakeland and Avon Park establishments be revoked and that each establishment be assessed a fine of $1,000 each.

   
   

9. This order shall become effective 15 days after filing with the Clerk of 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

Docket for Case No: 82-000669

Orders for Case No: 82-000669