STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1951

)

LEWIS J. HOWELL and HOWELL )

MORNING GLORY CHAPEL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on November 2, 1982, in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Lewis J. Howell

669 Florida Avenue

Jacksonville, Florida 32202

This matter arose on Petitioner's Amended Administrative Complaint which alleged that Respondents committed numerous statutory and rule violations pertaining to the practice of embalming, funeral directing and funeral establishment operation, and that business was conducted without active licenses. Petitioner submitted proposed findings of fact and conclusions of law which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At times pertinent to this proceeding, Lewis J. Howell has been licensed as a funeral director and embalmer under the laws of the State of Florida, license numbers FE 1442, FD 1270, and E 1442. Further, Howell Morning Glory Chapel has been licensed as a funeral establishment under the laws of the State of Florida, license number FH 1092. Respondent Howell has acted as the only funeral director in charge, and owner of Respondent Funeral Establishment.

   
   

2. The testimony of Assistant to the Executive Director of the Board of Funeral Directors and Embalmers, Department of Professional Regulation, established that for the 1979/1981 renewal period for licensure of funeral directors and embalmers, Respondent Lewis J. Howell issued a check on November 1, 1979, to cover renewal fees and late penalties. This check was dishonored by

   the bank, and funds covering the returned check were received by the Department of Professional Regulation on or about January 18, 1980. The 1981/1983 renewal of the funeral director and embalmer licenses of Respondent Howell, were due as of September 1, 1981. After that date the licenses would become inactive. By a check dated March 3, 1982, Respondent Howell remitted to the Department/Board a check in the amount of $230 for renewal of embalmer and funeral director licenses and licenses for these capacities were issued by the Department/Board based upon this check. The check was later dishonored by the bank. Funds covering the dishonored check were received by the Department on or about August 4, 1982.

   
   

3. On March 31, 1982, Crawford C. Richardson, Jr., investigator for the Department of Professional Regulation, went to the Respondent Funeral Establishment for the purpose of conducting an inspection of the premises. Due to Respondent Howell's absence, the investigator informed the attendent that he would return the next day at 9:00 a.m.

   
   

4. On April 1, 1982, Investigator Richardson returned to the Respondent Funeral Establishment at 9:00 a.m., and met Respondent Howell. When he entered the Respondent Funeral Home he smelled a very strong, putrid odor emitting from the side of the building where the preparation room was located. Based upon his previous experience, Richardson identified this as the smell of decaying bodies.

   
   

5. Richardson noted the following deficiencies on the April 1, 1982, inspection:

   
   

   1. No hand basin in the preparation room.

   2. No operating table in the preparation room.

   3. Embalming tools were rusted and dirty.

   4. Ceiling of the chapel was partially collapsed.

   5. Ceiling in the preparation room was water damaged.

   6. No sanitary waste receptacle was present.

   7. Ventilation equipment in the preparation room was inoperable.

   8. Entire funeral establishment was dirty and had empty liquor bottles strewn about.

   9. No printed or typewritten list of retail prices or written agreement form was available as required by Sections 470.035, Florida Statutes.

      
      

6. On April 26, 1982, Investigator Richardson returned for an announced follow-up inspection but Respondent Howell was not present. None of the corrective work noted from the April 1, 1982, inspection had been accomplished. After waiting for over an hour for Howell to return, Richardson informed the attendent that he would return the next day at 9:00 a.m.

   
   

7. On April 27, 1982, at 9:00 a.m., Investigator Richardson returned to the Respondent Funeral Establishment and Howell informed Richardson that he had insufficient time to complete the repairs, but that he would have them completed by the following day. Richardson noted that there was an electrician repairing the ventilator fan and that a stainless steel operating table was in the preparation room. On that visit, Respondent Howell produced his funeral director and embalmer licenses issued by the State. Investigator Richardson informed Respondent Howell that he would return in one week.

   
   

8. On May 4, 1982, Investigator Richardson arrived at the Respondent Funeral Establishment at 9:00 a.m. and noted that the exhaust fan had been

   repaired, but noted that a deceased body was lying on a makeshift plyboard table in the preparation room. The table was of a porous material which cannot be properly maintained. Respondent had several bodies in the Chapel of the Funeral Establishment on this visit and they, too, were lying on makeshift plyboard shelves. Respondent Howell informed Investigator Richardson that the stainless steel operating table Richardson had seen on the April 27 visit was being repaired but refused to state which repair shop it was located at. The hand sink had not yet been installed. The general condition of the funeral facility was still filthy, and no written price lists or agreements were available. The preparation room floors were dirty and there were no sanitary waste receptacles present. As to the written price lists and agreements, Howell told Richardson that he had not had time to accomplish this requirement, so Investigator Richardson showed him several examples of these written documents from other funeral establishments to aid him in this task.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner has charged Respondents with violations of the following statutes and rules governing the practice of funeral directing and embalming in the State of Florida: Sections 470.024, 470.035, 470.031(1)(a), 470.036(1)(a), (g), (h), (j), (k), 455.227(1)(e), Florida Statutes (F.S.), and Rule 21J-21.03, Florida Administrative Code (F.A.C.). As pertinent to these proceedings, those statutory and rule sections provide as follows:

   
   

   Subsection 470.024(6), F.S.

   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.

   
   

   Section 470.035, F.S.

   A licensee shall be subject to disciplinary action as provided in this chapter if he:

   1. Fails to furnish for retention to anyone who inquires in person about the arrangement of funeral merchandise and services, before any discussion of selection, a printed or typewritten list concerning the retail

   prices for at least each of the following items, if regularly offered for sale: ...

   1. Fails to furnish for retention to each customer making arrangements a written agreement listing at least the following categories of services and merchandise,

      if selected by the customer, together with the price of each item: ...

   2. Fails to include on the written agreement required by subsection (3) the name, address, and telephone number of the funeral home and the statement that charges are only for those items that are used and that, if the type of funeral selected requires extra items, an explanation will be given.

   3. Fails to include immediately below the items required by subsection (3) the signature

   of the customer and the funeral director and the date signed.

   
   

   Subsection 470.031(1)(a), F.S.

   (1) No person shall:

   (a) Practice funeral directing, embalming or direct disposition unless the person holds

   an active license or registration under this chapter.

   
   

   Subsection 470.036(1), F.S.

   The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

   (a) Violation of any provision of s.470.031 or s. 455.227(1).

   1. Fraud or deceit, or negligence, incompetency, or misconduct, in the practice of funeral

      directing or embalming. . .

   2. A violation or repeated violation of this chapter or of chapter 455 and any rules promulgated pursuant thereto.

   1. Misrepresentation or fraud in the conduct of business of or profession of the licensee.

      
      

      Subsection 455.227(1)(e), F.S.

      The license has been obtained by fraud or material misrepresentation of a material fact.

      
      

      Rule 21J-21.03, F.A.C. INSPECTION CRITERIA

      The Department shall inspect funeral establish- ments on the basis of the following:

      1. There shall be either a refrigeration room for the storage of dead human bodies or a preparation room equipped as follows:

         1. Adequate ventilation, including an exhaust fan with proper screening adequate to exchange the air in the room with outside air at least twelve (12) times per hour;

         2. Operating table with non-porous surface;

         3. Sanitary floors with non-porous surface;

         4. Sanitary waste receptacles;

         5. A hand sink with hot and cold water, a service sink and a floor drain connected to central sewage system or septic tank;

         6. The following instruments properly maintained:

            1. 1 machine for embalming or gravity equipment

            2. 1 aspirator

            3. 1 master trocar

            4. 1 aneurism needle

            5. 1 bone separator

            6. 1 scalpel

            7. 1 drain tube

            8. 1 arterial tube

            9. 1 scissor

            10. surgical needles

            11. injector and needles

            12. eye caps

            13. surgeons thread

            14. 1 head rest

            15. razor and blades

            16. absorbent cotton

            17. antiseptic soap

            18. disposable sheet(s)

            19. towel(s)

            20. disinfectant

            21. tubing

         7. The following minimum supplies for embalming dead human bodies:

            1. 2 bottles arterial fluid per body

            2. 1 bottle cavity fluid per body

            3. supply of hardening compound for autopsies

         8. Room shall be maintained in clean and sanitary condition.

   
   

10. The evidence established that Respondent Howell obtained his 1981/1982 renewal of his funeral director and embalmer licenses by issuing a check which was dishonored by the bank, a fact which Respondent was aware of through his knowledge of the sufficiency of his funds, and a fact which was not attempted to be corrected until several months after the fact. He received his license with knowledge that the Board and the Department relied upon his bank check and he continued to practice utilizing those licenses. He even showed such licenses to Petitioner's investigator as proof of his legal practice of funeral directing and embalming. As such, Respondent Howell is guilty of a material misrepresentation in violation of Sections 470.036(1)(a) and 455.227(1)(e), F.S. Additionally, this is a violation of Sections 470.036(1)(g) and (h) and (k), F.S.

    
    

11. It was further demonstrated that Respondent Howell practiced funeral directing and embalming and held himself out as such, while holding an inactive license (from September 1981 through August 1982). As such, Respondent Howell has Violated Sections 470.031(1)(a), F.S., and Sections 470.036(1)(a), (g), (h), and (k), F.S. As to the Respondent Morning Glory Chapel, by operating as a funeral establishment under these same circumstances, it has violated Sections 470.024, F.S., as well as the same sections cited to Respondent Howell above.

    
    

12. Inspections of the Respondent Morning Glory Chapel revealed numerous violations of Rule 21J-21.03, F.A.C., quoted above, and as such, violations of Sections 470.036(1)(a), (h), (g), Florida Statutes. Respondent Howell, as the owner and funeral director in charge, is directly responsible for those same violations and is therefore in violation of Sections 470.036(1)(a), (h), (g), F.S., and Rule 21J-21.03, F.A.C.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That the licenses of Respondent Howell as a funeral director and embalmer, and the license of the Funeral Establishment, be suspended until the Respondents present to the Board of Funeral Directors and Embalmers a plan for reentry into the practice of funeral directing and embalming that will insure that the

statutes and rules governing such practice will be followed and that, thereafter, their licenses be placed on probation for one year subject to continued adherence to such statutes and rules.

DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida.

R. T. CARPENTER, 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 December, 1982.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Dept. of Professional Reg.

130 North Monroe Street Tallahassee, Florida 32301

Mr. Lewis H. Howell 669 Florida Avenue

Jacksonville, Florida 32202

Bruce Barcelo, Acting Executive Director Board of Funeral Director and Embalmers Room 507, 111 East Coastline Drive

Jacksonville, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001951

Orders for Case No: 82-001951