STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1952

)

SAMMIE LEE DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. Hearing was conducted on November 2, and 3, 1982, in Jacksonville, Florida The parties were represented by:

APPEARANCES

For Petitioner: Joseph W. Lawrence Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William F. Kachergus, Esquire

502 Florida Theatre Building Jacksonville, Florida 32202

This matter arose on Petitioner's Administrative Complaint charging Respondent with practicing funeral directing while his license was suspended and with wrongfully retaining funds received by him for funeral services which were due his employer. The parties submitted proposed finding of fact which are incorporated herein to the extent they are consistent with the evidence and are relevant.

FINDINGS OF FACT

1. Respondent was issued Embalmer's license No. EM645 in 1945, and Funeral Director's License No. FD504 in 1947. He was also issued a dual license No. FE64 in 1947.

   
   

2. By Amended Final Order, dated March 27, 1980, Petitioner suspended Respondent's funeral director's and embalmer's licenses for a period of one year. Following the one year suspension, which concluded on March 26, 1981, Respondent was placed on three years license probation.

   
   

3. The complaining witness, Samuel C. Rogers, employed Respondent between June 1980, and March, 1982, essentially to operate one of two funeral homes he

   owned 1/. His employment arrangements with Respondent were not clear (discussed below), but Rogers generally intended to capitalize on Respondent's ability to attract funeral business.

   
   

4. Rogers was aware that Respondent could not embalm under the terms of his probation. He believed initially that Respondent could perform funeral directing duties and assigned him such responsibilities. However, Rogers continued to permit Respondent to perform funeral directing tasks even after he learned that this was improper under the terms of his probation.

   
   

5. The funerals of Queenie M. Edwards, in December, 1980, and Jacob L. Maxwell, in late February or early March, 1981, were arranged and conducted by Respondent. Thus, during the period of his license suspension, Respondent held himself out to the public as a funeral director and did perform in this capacity.

   
   

6. Respondent typically made all funeral arrangements with the family of the deceased, including caskets, flowers, limousines, drivers, and cemetery lots. He prepared itemized statements for services provided and collected direct payments as well as insurance assignments. He sometimes cashed client checks and retained the proceeds to pay funeral service expenses, purchase advertising materials and make funeral home improvements He also kept some of these funds for his own use and admits he owes Rogers up to $500.

   
   

7. In other instances, Respondent brought cash to Rogers' office where he turned it over to the secretary-bookkeeper or Rogers himself. Respondent kept no records and Rogers' records were incomplete and therefore inconclusive. No specific funds or payments were identified which Respondent was proven to have diverted wrongfully.

   
   

8. Rogers claims that Respondent misappropriated at least $30,000. Petitioner's evidence indicates that some $8,000 came into Respondent's hands for which there are no records to establish receipt by Rogers. However, the testimony of Respondent and two other former employees of Rogers established that Respondent did turn over cash funds to Rogers or his secretary-bookkeeper on various occasions and that an immediate record of such receipts was not always made. Further, Rogers has also accused his former secretary-bookkeeper of misappropriation and is apparently pursuing this claim in another forum.

   
   

9. The employment arrangements between Rogers and Respondent were not supported by written agreement. Rogers claims he employed Respondent on a $300 per week salary and did not authorize him to collect funeral service payments. However, he did not discipline Respondent when be became aware of his collection practices. Rather, it was not until he personally attempted to collect on various accounts which customers had already settled with Respondent that he discharged him.

   
   

10. Respondent contends he was in partnership with Rogers and was given latitude to make all funeral arrangements, including collections and expenditures for services, building maintenance and advertising. He further viewed his retention of certain funds as due him for his services to the business.

    
    

11. Rogers' former secretary-bookkeeper understood that Rogers had employed Respondent on a commission basis. Therefore, no income tax or social security contributions were made on his behalf. In view of such conflicting testimony, there can be no finding that Respondent's employment arrangements

    precluded his collection of customer payments or required that all such funds be turned over to Rogers.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 4 70.036, Florida Statutes (F.S.), provides in part:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in sub- section (2) may be taken:

       1. Violation of a lawful order of the board, or department previously entered in a disciplin- ary hearing or failure to comply with a lawfully issued subpoena of the board or department.

          
          

13. Petitioner's amended final order dated March 27, 1980, suspended Respondent's funeral director's license and prohibited his practice of funeral directing for one year. Subsection 470.002(4), F.S., provides in part:

    
    

    (4) "Practice of funeral directing" means making, at need or preneed, arrangements for, or directing the arrangements for, the prepar- ation and transportation of dead human bodies; for final disposition; or using, in connection with one's name the words "funeral director," "licensed funeral director," "undertaker," or "mortician"; or offering or holding oneself out as offering such services.

    
    

14. Respondent held himself out as a funeral director during the period of his license suspension and engaged in the acts which constitute funeral directing during this period. He therefore violated Petitioner's order and is subject to discipline under the provisions of Subsection 470.036(2), F.S., which provides various penalties including license revocation.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

1. That Respondent be found guilty of violating Subsection 470.036(1)(i), F.S., as charged in Count III of the Administrative Complaint.

   
   

2. That all other charges contained in the Administrative Complaint be dismissed.

   
   

3. That Respondent's funeral director's license and dual license be revoked.

DONE and ENTERED this 12th day of April, 1983, 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 12th day of April, 1983.

ENDNOTE

1/ The two funeral homes involved are the Dallas, Graham and Rogers Funeral Home and the Whittington-Rogers Funeral Home, both located in Jacksonville. Respondent was primarily associated with the latter facility.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

William F. Kachergus, Esquire

502 Florida Theatre Building Jacksonville, Florida 32202

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

Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

DIVISION OF FUNERAL DIRECTORS AND EMBALMERS

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

Petitioner,

vs. CASE NO. 22342

DOAH CASE NO. 82-1952

SAMMIE LEE DAVIS,

(FE 645, EM 645, FD 504)

1615 West 7th Street Jacksonville, Florida 32209

Respondent.

/

FINAL ORDER

This cause came before the State of Florida Board of Funeral Directors and Embalmers at its duly noticed meeting of July 18, 1983, in Jacksonville, Florida. Upon a complete review of the record and being fully advised, the following findings and conclusions are made:

FINDINGS OF FACT

1. On or about June 11, 1982, an Administrative Complaint, copy attached was filed against the Respondent. Upon contest by the Respondent, the matter was referred to the Division of Administrative Hearings for formal proceedings which occurred on November 2 and 3, 1982.

   
   

2. On or about April 12, 1983, a Recommended Order, copy attached, was entered.

   
   

3. On or about April 22, 1983, Exceptions to this Recommended Order were filed by the Respondent. To the extent that those exceptions are contrary to the findings and conclusions herein, they are rejected.

   
   

4. The Findings of Fact as contained in the attached Recommended Order are incorporated and fully adopted as the Board's own findings with the exception of the finding that the funeral of Queenie M. Edwards, in December of 1980, was arranged and conducted by the Respondent. The Board finds there to be no competent, substantial evidence in the record to support such a finding. That finding is therefore modified to state that: The funeral(s) arranged at the instance of Queenie M. Edwards in December, 1980, (and on behalf of Jacob L. Maxwell, in late February or early March, 1981, were) arranged and conducted by Respondent.

CONCLUSIONS OF LAW

The Board hereby adopts and incorporates as its own the Conclusions of Law as contained in the attached Recommended Order.

Based upon the foregoing, Respondent has violated Section 470.036(1)(i), Florida Statutes, as charged in Count III of the Administrative Complaint. All other charges contained in the Administrative Complaint are hereby dismissed.

It is therefore ORDERED that the funeral director and embalmer licenses of the Respondent be REVOKED. It is further ORDERED that an administrative fine in the amount of five hundred dollars ($500) be assessed against the Respondent.

This Order shall become effective 15 days after filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 10th day of August, 1983.

ROBERT RAMSDELL

Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to William F. Kachergus, 502 Florida Theatre Building, Jacksonville, Florida 32202, Attorneys for Respondent, this 23rd day of August, 1983.

BRUCE E. BARCELO

Interim Executive Director

cc: Counsel of record Sammie L. Davis

A. B. Coleman Mortuary

Docket for Case No: 82-001952

Orders for Case No: 82-001952