vs. ) CASE NO. 83-2971
Respondents. )
Pursuant to notice, a hearing was held in this cause on February 17, 1984, before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Sarasota, Florida. The appearances were as follows:
For Petitioner: Douglas L. Stowell, Esquire
For Respondent: Lee E. Hayworth, Esquire
For Respondent: Clyde A. Willard, Esquire Department of The Capitol, Suite 1302 Banking and Finance Tallahassee, Florida 32301
This cause arose upon a request by Manasota Memorial Park for approval of proposed amendments to its by-laws which are required to be submitted to the Department of Banking and Finance for approval. Upon the filing of a petition for formal proceeding by the above-styled Petitioner, Toale Brothers, Inc., the case was transferred to the Division of Administrative Hearings for hearing pursuant to Section 120.57(1), Florida Statutes (1983). Manasota Memorial Park (Manasota), in its first by-law amendment proposal seeks to require persons with "paramount authority" to make funeral and interment arrangements, sign certain authorization forms and pay for grave opening and closing, in full, at least 24 hours in advance of funeral services, and to bake such arrangements directly with Manasota, as opposed to funeral directors making the arrangements.
Additionally, Manasota seeks to impose a requirement, through an amended by-law, that would require all caskets delivered to it for burial to have an indestructible tag attached stating the name of the deceased and the funeral home. The third proposed amendment or addition to Manasota's by-laws merely seeks to provide notice to the owners of the limited responsibility that will be
accepted by Manasota regarding merchandise purchased off their site, or from entities or persons other than Manasota. In that connection, Manasota asserts that Section 497.033(3), Florida Statutes, specifically allows the cemetery to adopt by-laws setting minimum standards for burial merchandise and installation. The Petitioner, Toale Brothers, asserts that the proposed amendments concerning authorization, payment of opening and closing burial charges and the tagging of caskets, unreasonably restrict the use of interment or burial rights in Manasota's cemetery, unreasonably restrict the availability of services, and do not protect the public from any significant harm or damage.
At the hearing, Manasota, as proponent of the by-law amendments, presented one witness and two exhibits, both of which were admitted into evidence. The Petitioner, Toale Brothers, Inc., presented two witnesses and two exhibits, both of which were admitted into evidence. The applicant Respondent, Manasota, presented two rebuttal witnesses. The Department of Banking and Finance presented no testimony or evidence.
At the conclusion of the proceedings, the parties ordered a transcript and requested the right to file proposed findings of fact and conclusions of law.
By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended and the parties waived the 30-day requirement for rendition of a Recommended Order embodied in Rule 28-5.402, Florida Administrative Code.
The parties timely submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See Sonny's Italian Restaurant v. Department of Business Regulation, 414 So. 2d, 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So. 2d 303 (Fla. 5th DCA 1983).
The is sue to be resolved in this proceeding concerns whether the proposed by-laws unreasonably restrict the use of interment or burial rights, unreasonably restrict competition or unreasonably increase the costs to the owner of the interment or burial rights in utilizing those rights.
Manasota Memorial Park is a large cemetery licensed under Chapter 497, Florida Statutes, by the Department of Banking and Finance, as a "cemetery." It is also licensed under Chapter 470, Florida Statutes, by the Department of Professional Regulation, as a "direct deposer". It is licensed by the Department of Insurance, pursuant to Chapter 639, Florida Statutes, to sell
"pre-need" funeral merchandise or service contracts. Manasota has specifically reserved the right to adopt, alter, amend or repeal any of its by-laws, with or without notice to the owners of burial spaces in its cemetery. This reservation is found in paragraph 63, page 14 of Manasota's current by-laws, in evidence.
Manasota has, however, agreed to prepare and distribute an updated compilation of its by-laws to its burial space owners at the conclusion of the present proceedings.
Manasota is in the business of selling burial space, and conveys that in fee simple to a purchaser, rather than offering mere burial rights to property it retains title to. There are currently between 17 and 18 thousand owners of burial spaces in Manasota Cemetery. Many of Manasota's owners or "clients" have purchased their land "pre-need." Frequently, however, burial spaces are required to be purchased in the "at-need" situation.
Because Manasota has already sold in excess of 17 thousand cemetery lots, many of its potential "clients" already own their lots and so Manasota only needs to provide services at the time of the funeral itself. Funeral services at Manasota, by its by-laws, can only be held in a rotunda area away from the actual gravesite. Graveside services are prohibited by a provision of Manasota's bylaws. In the conduct of its business, Manasota often obtains from the funeral directors, the name, address, telephone number and relationships to the deceased of persons making funeral arrangements. Manasota is free to and often does contact that person directly in order to make arrangements for authorization to open and close the grave, conduct the rotunda service, and for payment of the grave opening and closing charge. This charge, for opening and closing the gravesite, is a set fee which is not negotiable. Manasota often quotes this charge and otherwise secures funeral arrangements by telephone. It has produced no evidence to show that this procedure has caused any adverse effect on its business. Manasota seeks, however, in this proceeding, to enact a by-law that requires persons with "paramount authority," that is, persons who are making funeral arrangements for the deceased, to actually sign an authorization form for the service and the grave opening and closing, and to pay for the opening and closing of the grave at least 24 hours in advance of the service.
Manasota does not independently determine whether the persons who execute authorization forms and pay grave opening and closing charges, actually have "paramount authority" to do so, but rather, relies upon the assurances of such persons that they have such authority, or upon assurances of the funeral director who is otherwise in charge of arrangements. The proposed by-law requiring 24 hour advance payment and signed authorization from persons with "paramount authority" provides no standard for determining which persons, in the family, or otherwise connected with the deceased, have "paramount authority" and that term is nowhere defined in the proposed by-law or other places in Manasota's by-laws.
Manasota, at present, frequently prepares gravesites without requiring a signed authorization form for such work in advance. Typically, Manasota does not presently require that an authorization form be executed when the person with alleged "paramount authority" is not available. Its present procedure, with this built-in flexibility, is especially beneficial for persons who must journey from distant parts of the country, upon hearing of the demise of a relative in the Sarasota area, and who would be unable to arrive 24 hours in advance of the scheduled service, even though such a person might indeed be the person in the deceased's family with "paramount authority" to make the arrangements. The present by-law does not allow any exception to its proposed requirement in this regard for persons who are unable, due to distance or otherwise, to go to Manasota's place of business to sign the appropriate forms and to pay the grave opening and closing charge 24 hours in advance of the scheduled service. The proposed by-law, for instance, does not have the flexibility of allowing the funeral director to act on behalf of such persons in arranging and paying for Manasota's services. By providing no standards for defining which persons have "paramount authority," the proposed by-law does nothing to alleviate any potential confusion between the funeral director and
family members as to who has paramount authority to make such arrangements as purchase of a gravesite, payment of opening and closing charges, and other services and charges performed and required by Manasota.
The identity of a deceased person is placed on a death certificate for that person by one who first assumes custody of the body. The information as to identity placed on the death certificate is obtained from the next of kin or the best qualified person or source available to identify the deceased. Prior to final disposition, the person who first assumes custody of the body, after the death certificate is prepared (typically, the funeral director) prepares a "burial transit permit" upon which the decedent is identified, which identification is based on the information appearing on the death certificate. Funeral directors who first assume custody of the body are not required to have personal knowledge of the identity of the decedent, but may rely upon the data provided by the next of kin or other qualified persons.
Cemetery companies are entitled to rely on, and must rely upon, the information contained in a burial transit permit as to identity of the body that accompanies that burial transit permit to the cemetery premises. By sending a particular burial transit permit with a casket containing a body, a funeral director warrants that the body being conveyed is the body that was identified to them as the person whose name is reflected on that permit. However, funeral directors can make no warranty or representation that the initial identification of the body to them by other persons, upon which information both the death certificate and burial transit permits are based, is correct, unless of course, the funeral director knew the deceased personally.
Once the funeral director delivers a casket containing a body to Manasota's rotunda before services, and once those funeral services in the rotunda facility are completed, the funeral director no longer has control over the casket and body, it having been delivered with its accompanying burial transit permit to the custody of Manasota. The funeral directors thus do not participate in the actual burial of the casket in the grave. Manasota, under the present practice, can easily identify caskets delivered to it with the information contained in the accompanying burial transit permit delivered with the casket, so as to ensure that the casket is properly identified. The funeral directors themselves who perform services at Manasota's premises, have no actual, personal knowledge whether the casket containing the body identified in the accompanying burial transit permit, will actually be buried in the correct grave, since they do not participate in the actual burial and leave the premises at the conclusion of the funeral services themselves.
Manasota proposes that plastic identification tags be attached to the surface of the casket, but the permanency of this attempted identification method is not reliable because the tags have, in some instances, become unattached. Although the cost is minor, there is an additional cost to funeral directors if they are required to utilize such tags and insure that they remain permanently attached to the caskets, and this additional cost, however small, will be reflected in additional charges made to the public for such services. Further, information concerning identity of the deceased is contained in the burial transit permit which accompanies the casket. The repetition of the same identity information on a plastic tag to be attached to the casket would accomplish nothing, in the way of enabling Manasota to identify caskets in its possession, that the burial transit permit does not already accomplish. The point is that if the funeral director has information concerning who the decedent placed in the casket is, and records that on the burial transit permit, and then "publishes" that same information again by placing the identity
information on a plastic tag attached to the casket, it will not serve to better identify the remains inside the casket and will not do anything to forewarn Manasota, the cemetery company, if a mis-identification has occurred by either the funeral director or by the person executing the death certificate, or otherwise informing the funeral director of the identity of the decedent's body placed in his custody.
Finally, with regard to the proposed by-law concerning payment for Manasota's services at least 24 hours prior to the scheduled funeral service and its requirement that a person with "paramount authority" sign the necessary agreements with Manasota to initiate their services, at least 24 hours prior to the funeral service, it must be remembered that prior to burial, family members who are typically the group from which the person with "paramount authority" is chosen, are usually in a state of severe bereavement and are not in a proper state of mind to be conducting business transactions, especially during the particularly harrowing time for a family between the point of the decedent's death and the point of that funeral service and burial. It seems especially callous to require full payment for Manasota's services in advance, at least 24 hours before the service, right in the middle of this particularly acute period of bereavement between the death and the burial of a family member, with the implication being that if payment were not made and the appropriate agreements not signed timely, that Manasota might elect to delay or otherwise hinder the performance of the funeral services and burial. Certainly Manasota can provide its services when needed by bereaved parties with "paramount authority" over the remains of the deceased person but require payment at a later date, albeit a date certain, as is done in most other business transactions. The family member or other person with "paramount authority" could be billed at a later time just as easily. Manasota, like any other business, which IS not timely paid for outstanding goods or services rendered, has civil remedies available to it, and it would be beneficial to bereaved persons for Manasota to provide its services when needed, but not to mandatorily seek payment before it performs the funeral service or the burial.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Subsection 120.57(1), Florida Statutes (1983).
Section 497.033(1)(d) provides, as pertinent hereto, that cemeteries may perform the following functions:
(d) The adoption of by-laws regulating the activities conducted within its boundaries, provided that no funeral director licensed pursuant to Chapter 470 shall be denied access to any cemetery to conduct a funeral for, or supervise a disinterment of human remains.
All by-laws provided for herein shall be subject to the approval of the department under the provisions of Chapter 120 prior to becoming effective. The department shall not approve any by-law which unreasonably restricts the use of interment or burial rights, which unreasonably restricts competi- tion, or which unreasonably increases the cost
to the owner of interment or burial rights in utilizing these rights.
Rule 3D-30.23, Florida Administrative Code, provides that cemetery by- laws may be approved by the Florida Department of Banking and Finance "if they are reasonable."
Section 497.012, Florida Statutes (1983) provides:
The department shall not adopt any rule or approve any cemetery by-law which unreasonably restricts competition or the availability of services in the state or in a significant part of the state, or which unnecessarily increases the cost of services without a corresponding or equivalent public benefit. . . .
The proposed by-law amendment submitted by Manasota Memorial Park, Inc., relating to the requirement of casket identification tags and the requirement concerning 24 hour prior arrangements for the execution of funeral services, burial authorization forms and payment in full of all grave opening and closing charges by persons with "paramount authority," are not reasonable.
It is noted initially however, that the Petitioner does not dispute that the requirement in a portion of the proposed by-law amendments that 24 hour advance notice of the need for funeral services be provided Manasota, is reasonable, and that portion of the proposed by-law amendment is not opposed by Petitioner, nor is that proposal concerning Manasota's limited liability for burial merchandise purchased off its site in dispute. The remainder of the proposed by-law however, requires that persons with "paramount authority" for the deceased, make arrangements for funeral service and burial directly with Manasota, sign appropriate authorization forms and pay in full for opening and closing of the grave, mandatorily, 24 hours in advance of the service.
The person with "paramount authority" could be a family member or anyone who simply alleges to either a funeral director, or Manasota, that he or she has such authority and gives Manasota reasonable assurance that such is the case. Section 497.033(2), Florida Statutes, requires Manasota to make disclosure of grave opening and closing charges, etc., and in the past, Manasota made that disclosure by telephone which the parties agree is permitted under the provisions of Section 497.046, Florida Statutes, which requires disclosure of all available services prior to selection of merchandise, etc. Manasota already obtains the information from funeral directors and funeral homes which enable its staff to learn who is a person with "paramount authority" and to contact that person claiming authority, about making the required arrangements and to advise that person as it sees fit. The Petitioner fears a situation can result if the proposed by-law is adopted whereby it may not advise its clients to contact Manasota (which Manasota agrees is not required of the funeral director by the proposed by-law change) and Manasota might neglect to contact the required persons despite having the necessary information. Then, if at the time of the funeral service, Manasota decides that the appropriate arrangements have not been made, the funeral director might be targeted as the responsible, liable party, and embarrassment and unnecessary additional anguish might result for the bereaved family.
Moreover, the by-law amendment as proposed in this regard, provides no objective standards by which funeral directors may be able to determine whether or not Manasota will always require such arrangements to be made with full payment 24 hours in advance. Although elsewhere in Manasota's by-laws, there is a provision permitting exceptions to the by-laws, when approved by Manasota, there is no assurance that the exception will be granted in a non-arbitrary, predictable manner. If 24 hour advance arrangements are not made, possibly merely because a person with "paramount authority" for a bereaved family was unable to journey to the funeral site 24 hours in advance of the service, and an "exception" is not granted by Manasota, consequent disruption of the funeral service should Manasota insist on enforcing its "24 hour rule" could result.
The aggravated distress to the bereaved persons involved could be substantial, and at the same time avoidable, if the 24 hour advance payment and arrangement requirement were not in effect and rigidly adhered to.
Even if the rule were placed into effect and yet not rigidly enforced, the funeral director representing the family would have no way of knowing sufficiently in advance when an exception would be granted, since standards for the granting of exceptions do not appear in the by-laws as proposed. Such uncertainty placed upon families and upon the funeral directors representing them at such an emotionally trying time is not reasonable, and was not shown to be necessary to the orderly and efficient conduct of Manasota's business.
Further, the burden to notify persons of "paramount authority" to proceed out to Manasota's site to be "pitched" or demonstrated the goods and services offered by Manasota, should not be placed on funeral directors. This puts the funeral director in the position of acting as a "de facto" agent for Manasota because, knowing of the 24 hour mandatory arrangement and payment requirement the funeral director, in an abundance of caution, if he felt his client might ultimately indeed want to use Manasota's site, (in an "at need" situation) feel compelled to direct the client there first. Moreover, funeral services should not be delayed or affected by Manasota's failure to contact persons to see that they make the payment and sign the forms Manasota contends must be handled 24 hours in advance. When Manasota already knows the identity of the interested persons because of an already scheduled funeral service, it should not merely wait for persons to come to its premises to make the required arrangements, rather it should permit its potential clients the flexibility of making arrangements and obtaining the required price disclosures by telephone, which is permitted and indeed, required by Section 497.046, Florida Statutes.
It is simply unreasonable to require persons to visit Manasota's site
24 hours in advance of an already scheduled funeral service to make full payment and other arrangements in advance for opening and closing of the burial site, especially since no credit or other investigation of such persons is required or made by Manasota, such that the 24 hour time period serves any necessary function for Manasota in the conduct of its business. The purposes sought to be served may be served equally well if signing of forms and payment of the charges is made prior to or even after the scheduled service.
It is also unreasonable to require persons from distant areas, who will be the persons executing the authorization form and making payment of the required charges, to be inconvenienced and to expend additional funds often necessary in order to ensure arrival 24 hours in advance of a scheduled funeral service. The requirement of full payment of the charges involved 24 hours in advance of the scheduled service comes at a time after the death of a decedent when emotional stress on bereaved family members is often most severe and when it is most inconvenient for family members, or other responsible persons, to
leave their more important duties to journey out to Manasota's premises to conduct business which could just as easily wait until after the funeral service. Manasota would be adequately protected if payment was made less than
24 hours prior to the scheduled funeral service in its rotunda, and indeed could not show in this case that any harm would result if payment was made after the funeral service, the next day, or the next week. Manasota retains all remedies at law that any business has in redressing nonpayment of its bills for goods and services to customers.
Manasota has also proposed a by-law requiring the tagging of all caskets prior to entry into the cemetery premises showing the name of the deceased and the funeral home delivering the casket. The Petitioner argues that a burial transit permit should be deemed adequate for such identification purposes and that the attempted requirement of Manasota is unreasonable. Petitioner's argument is meritorious and it is concluded that this proposed by- law is indeed unreasonable.
The identity of remains is determined upon information obtained from persons having that knowledge, such as the attending physician or next of kin. Manasota itself routinely accepts the word of a family member for identification of the deceased when a body is removed from a residence. That initial identification is relied upon thereafter for purposes of preparing a burial transit permit. Unless a funeral director actually knew the deceased personally or by sight during life, as a practical matter, he will not be able to affirmatively identify the particular deceased human remains in his own right. Section 382.081, Florida Statutes, permits funeral directors to obtain such identification from the next of kin or other qualified person, such as the attending physician at death who places such information on the death certificate.
Manasota, in this instance, is attempting to require that funeral directors attest to the identity of human remains through the tagging procedure. Unless a funeral director has personal knowledge of the identity of the deceased, he must in turn simply rely upon the information contained in the burial transit permit, which is prepared and based upon a representation of those third parties, such as physicians and next of kin. Likewise, Manasota and all other cemeteries must, and indeed are legally entitled to rely upon the information on the face of the burial transit permit as to the identity of the remains inside a casket. Manasota contends that it is threatened by liability for mis-identified caskets, however, a burial transit permit accompanying the casket provides the cemetery with all necessary justification for its actions in relation to final disposition of the casket and remains therein, and protection from liability for acting in reliance upon the identification information provided on the face of the burial transit permit.
Section 382.061, Florida Statutes, provides that a burial transit permit must accompany a dead body and must be provided to the person in charge of burial before interment or other disposition. Clearly, the permit is the source of authority for action concerning the body it accompanies. The statute further provides that such permits issued by other states that accompany bodies brought into Florida "shall be authority for final disposition" in this state. If such reliability is accorded to burial transit permits and identification of the deceased appearing on the face of burial transit permits promulgated in other states, then permits issued in Florida certainly warrant similar confidence. Under this section, no affirmative action concerning verification of identity of remains by Manasota or other similarly situated cemeteries is
necessary, nor is it actually possible, unless Manasota or its personnel knew the deceased while alive.
The proposed tagging procedure will simply result in duplicating the information on the burial transit permit and since the funeral director is thus placed in the position of essentially "verifying" the identity of the deceased, would potentially subject the funeral director to liability for such representation which is clearly beyond the intent of the above statute.
This exposure of funeral directors, although any liability might be remote, is unreasonable in view of the fact that funeral directors have no control over the ultimate placement or disposition of the casket and remains which they deliver to the cemetery, concerning which grave it was actually placed in or how it was disposed of, after the funeral service is completed. Funeral directors only represent and are legally responsible to represent, that a particular body was identified to them as the particular person whose identity is reflected on the permit accompanying that body when it is ultimately delivered to the cemetery. No further action by the funeral director is statutorily required.
In fact, the delivery of the particular transit permit with the body as required by Section 382.061, Florida Statutes, constitutes a legally sufficient representation to Manasota as to the body's identity. Errors by funeral homes such as a mix-up of caskets or placing a person into the wrong casket will not be corrected by the proposed procedure. Even assuming such an error was made and the burial transit permit was executed at the funeral home representing that a certain deceased was in a casket which, in fact was not the case, the placing of a tag on the casket before delivery to the cemetery would not rectify the error, it would merely perpetuate the error already extant on the face of the transit permit, as Manasota would have no means of recognizing that an error had occurred, merely by the fact that a tag was placed upon the casket by the funeral director. The attachment of the tag to the casket would afford Manasota no additional means of correctly identifying and ensuring that the proper remains were in the proper casket and, in that connection, Manasota concedes it has no right to open a casket to verify identity. In any event, since the statute places the duty -to identify the remains in a casket on a burial transit permit executed by the funeral director, Manasota, in reliance on the funeral director's representation, as exemplified by the giving of that transit permit, is fully protected. Additionally, there is some small potential for disruption of funeral services and consequent detrimental impact upon bereaved persons should the cemetery, if the by-law were in effect, insist upon its compliance when a casket arrives for the service with no accompanying tag attached.
In summary, the proposed amendments concerning the signing of burial and service authorization forms and full payment of opening and closing charges
24 hours in advance by persons of "paramount authority" and the proposed requirement for tagging caskets, unreasonably restrict the use of interment or burial rights, unreasonably restrict the availability of services, and do not protect the public from any significant and discernible harm or damage and thus do not comport with the above statutory authority.
Since there are no standards by which funeral directors are able to determine in advance when advance arrangements will mandatorily be required or when they can rely upon the granting of an exception, the funeral directors' assistance in facilitating funeral arrangements can be affected to the detriment of their clients. In many instances, such common situations as illness of
persons with paramount authority, extreme grief or distant residence with accompanying travel complications for persons with paramount authority, would necessitate funeral directors contacting Manasota to see if an exception would be available to the making of such advance arrangements and payment. This is an unreasonable and unnecessary restriction upon the use of burial rights and availability of services, in violation of Section 497.012 and Section 497.033(1)(d), Florida Statutes. The portion of the by-law amendment requiring
24 hour advance notice to Manasota of the need to schedule a funeral service is uncontested by the Petitioner, and is indeed reasonable. Such advance notice could be carried out by telephone and is certainly not burdensome to funeral directors nor to the clients they represent. To this extent only, the proposed by-law regarding 24 hour advance notice of scheduling funeral services should be approved.
The proposed tagging procedure, which is clearly duplicative of the burial transit permit does not protect the public from any harm or damage. The harm of mis-identification of the deceased which could result in distress to the family and liability to the cemetery will not be corrected by the proposed procedure, nor will the tagging result in the ability of Manasota to discover any such errors. Further, the tagging requirement will result in some very small increased costs and there was no showing of any public benefit to concomitantly result from the proposed requirement. Thus, the proposed requirement does not comport with Section 497.012, Florida Statutes.
Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the proposed amendments to the by-laws of Manasota Memorial Park, Inc. be disapproved, except that the proposed requirement that 24 hour advance notice by the person in paramount authority, of the need to schedule a funeral service and the proposed limit on Manasota's liability concerning quality of burial merchandise purchased "off-site", be approved.
DONE and ENTERED this 27th day of August, 1984, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1984.
Douglas L. Stowell, Esquire MANG and STOWELL
Lee E. Hayworth, Esquire ISPHORDING, PAYNE, KORP,
Clyde A. Willard, Esquire The Capitol
