STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

)

Petitioner, )

)

vs. ) CASE NO. 82-2585

)

GARY J. FAIRCLOTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 15, 1982, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a four-count Administrative Complaint filed by the Board of Funeral Directors and Embalmers against Gary J. Faircloth and Community Funeral Home. As of the date of hearing, the record revealed that the Respondent funeral home had not requested a formal hearing, and Respondent Faircloth represented that he was not appearing in the funeral home's behalf.

Respondent Community Funeral Home was severed as a party and by separate order given ten days to file a request for hearing --- or have the factual allegations of the Administrative Complaint deemed admitted with the matter referred to the Board for a proceeding pursuant to Section 120.57(2), Florida Statutes.

At the hearing, testimony and evidence were limited to those counts of the Administrative Complaint directed against Respondent Faircloth. Those proposed findings of fact which were submitted were considered in the writing of this order. To the extent they have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based on the most credible evidence, or not being a finding of fact.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gary J. Faircloth, pro se

605 North Jefferson Street Perry, Florida 32347

ISSUE

The issue in this case is whether Respondent Gary J. Faircloth violated Chapter 470, Florida Statutes, as alleged in the Administrative Complaint.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Gary J. Faircloth has been licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, holding license numbers FE 1309, E 1309 and FD 1140. Respondent Faircloth was the funeral director in charge of Community Funeral Home from December 1, 1981 to the present, pursuant to Section 470.024, Florida Statutes.

   
   

2. At all times pertinent to this proceeding, Community Funeral Home has been licensed as a funeral establishment by the Board with George Evans, Jr., as the owner of the establishment. Evans is not and has never been licensed as a funeral director, funeral director intern, embalmer or embalmer intern by the Board. During the period that Respondent Faircloth was funeral director in charge of said establishment, Respondent has been the only funeral director and embalmer employed by the establishment. (TR 45-47, 63.)

   
   

3. Respondent Faircloth was the funeral director and embalmer responsible for the final disposition of Debra Jean Purter, to include preparation of the required forms.

   
   

4. Ms. Purter died in an auto accident in Perry, Florida, on January 21, 1982. Her case was referred to the medical examiner in Tallahassee, Florida. The medical examiner did not complete the medical certificate until February 2, 1982.

   
   

5. Respondent Faircloth applied for the burial-transit permit on January 24, 1982, from George Evans, Subregistrar. Evans issued the permit on that date and also granted a five-day extension to file the death certificate. The burial-transit permit was requested timely, and the latest date for filing the death certificate was January 29, 1982.

   
   

6. On January 26, 1982, Respondent Faircloth contacted the medical examiner and was advised that the medical examiner would complete the medical certificate. See Petitioner's Exhibit 1, Application for Burial-Transit Permit, Block 5c.

   
   

7. The death certificate was filed with the registrar on February 10, 1982.

   
   

8. Respondent Faircloth was the funeral director and embalmer responsible for the final disposition of O'Neatha Thomas, to include preparation of the required forms.

   
   

9. O'Neatha Thomas died on January 17, 1982, in Perry, Florida. Her case was referred to the medical examiner in Tallahassee, Florida.

   
   

10. A burial-transit permit was issued by George Evans, Subregistrar.

    From the copies, it cannot be determined when Respondent Faircloth requested the burial-transit permit from Evans. A five-day extension to file the death certificate was granted by Evans. The latest date for filing the death certificate would have been January 25, 1982.

11. On January 22, 1982, Respondent Faircloth contacted the medical examiner and was advised by Mrs. Silver of Ketchum, Wood or Burgert that the medical certificate would be completed and mailed. See Petitioner's Exhibit 2, Application for Burial-Transit Permit, Block 5c.

    
    

12. The temporary death certificate was filed with the county on February 15, 1982. The medical certificate was completed on March 10, 1982, and filed with the registrar on that date.

    
    

13. George Evans, Subregistrar, was also the owner of Community Funeral Home. As subregistrar, he could issue and received death certificates and burial-transit permits. A subregistrar has ten days to file such documents with the registrar. There is no place on the form to note filing with the subregistrar.

    
    

14. Respondent Faircloth was 14 days late filing the death certificate on Ms. Purter.

    
    

15. Respondent Faircloth was 29 days late in filing a temporary death certificate on O'Neatha Thomas.

    
    

16. Respondent Faircloth admitted that Evans spoke with the family of O'Neatha Thomas to determine what services they desired. Respondent was present and observed the actions of Evans from the adjoining room.

    
    

17. Respondent Faircloth further admitted that the memorial and burial services were directed by another funeral director in his behalf.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Funeral Directors and Embalmers has authority to discipline the Respondent, who is its licensee, pursuant to Chapter 470, Florida Statutes.

    
    

19. The Board has charged the Respondent with violations of Section 470.036(1)(e), (g) and (o), Florida Statutes, by filing certain required documents late. On two occasions in which the cases were referred to the medical examiner in Tallahassee, the Respondent failed to file the death certificate or temporary death certificate in a timely fashion. On one occasion, the Respondent was two weeks late filing a death certificate, and on the other occasion he was approximately four weeks late filing a temporary death certificate. This conduct constitutes a technical violation of Section 470.036(1)(g), Florida Statutes. However, the fact that both cases were referred to an out-of-town medical examiner is a mitigating factor.

    
    

20. Respondent is also charged with violation of Section 470.036(1)(a), (b), (g), (h), (n) and (o), Florida Statutes, by letting George Evans interview the family of O'Neatha Thomas. The statute most applicable to the facts alleged is Section 470.036(n), Florida Statutes. Respondent let Evans as owner of the funeral home discuss funeral arrangements with the Thomas family. Respondent stated that he saw nothing improper about Evans discussing these matters with the Thomases as long as he was present.

21. Section 470.002, Florida Statutes, defines the practice of funeral directing in broad terms and provides as follows:

    
    

    (4) "Practice of funeral directing" means making, at need or preneed, arrangements for, or directing the arrangements for, the preparation 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. However, nothing herein shall be construed to require a direct disposer or an agent registered under s. 470.028 to be a funeral director.

    
    

    The act of arranging for the preparation and transportation of the Thomas child was the practice of funeral directing. Therefore, Respondent is guilty of violating Section 470.036(n), Florida Statutes.

    
    

22. The fine of $1,000 suggested by Petitioner to cover costs is excessive and, in any event, should not be related to the cost of these proceedings but to the severity of the offense.

RECOMMENDATION

Having found the Respondent, Gary J. Faircloth, guilty of violating Section 470.036(1)(g), Florida Statutes, on two occasions, it is recommended that the Board of Funeral Directors and Embalmers fine the Respondent $50 for each violation, or a total of $100. Having found Respondent guilty of violating Section 470.036(1)(a), Florida Statutes, on one occasion, it is recommended that the Board suspend the license of Respondent for a period of one year.

DONE and RECOMMENDED this 16th day of December, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 16th day of December, 1982.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Gary J. Faircloth

605 North Jefferson Street Perry, Florida 32347

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

Embalmers

111 Coastline Drive, East Suite 507

Jacksonville, Florida 32202

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 82-2585

21809

GARY J. FAIRCLOTH, (EM 1309, FD 1140, FE 1309)

605 North Jefferson Street Perry, Florida 32347

Respondent.

/

FINAL ORDER

This cause came before the Florida Board of Funeral Directors and Embalmers at its duly noticed meeting of January 11, 1983, in Jacksonville, Florida, for final consideration. Upon a complete review of the record, including the transcript and pertinent pleadings and documents, the Board finds and concludes as follows:

FINDINGS OF FACT

1. An Administrative Complaint, copy of which is attached, dated August 2, 1982, and charging the Respondent with certain violations of Chapter 470, et. seq., F.S. was duly served upon the Respondent Gary J. Faircloth, and upon contest, the same was referred to the Division of Administrative Hearings for proceedings pursuant to Chapter 120, F.S.

   
   

2. On or about December 16, 1982, a Recommended Order, copy attached, was entered by the Division.

   
   

3. On or about December 20, 1982, the Petitioner submitted Exceptions to the Recommended Order wherein certain objections to the Hearing Officer's conclusion of law were made.

   
   

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

CONCLUSIONS OF LAW

1. The Board hereby adopts and incorporates by reference into the body of this Order the Conclusions of Law as contained in the Recommended Order.

   
   

2. The Board further concludes, based upon the facts of this case that Respondent is guilty of violating s. 470.031(1)(f), s. 470.036(1)(a), (g), (h) and (o), F.S.

It is therefore ORDERED that the license of the Respondent Gary J. Faircloth be revoked. The Board retains jurisdiction over this cause to reinstate the license of the Respondent upon a showing that he can abide and conform to the statutes and regulations of the State of Florida relating to funeral directing and embalming. Upon such a showing, the Respondent's license may be reinstated 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 an administrative fine shall be imposed against the Respondent in the amount of $1,000.00.

This Order shall become effective within 15 days of 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 Gary J. Faircloth, 605 North Jefferson Street, Perry, Florida 32347, 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 to: Jeffrey A. Miller

Community Funeral Home (FH 1130)

Docket for Case No: 82-002585

Orders for Case No: 82-002585