STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-0706

)

MARVIN W. MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 24, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Cynthia Gelmine

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Marvin W. Martin, Pro Se

302-1 Flowerwood Drive

Chattahoochee, Florida 32324 STATEMENT OF THE ISSUES

The issue is whether the license as a funeral director and embalmer held by the Respondent, Marvin W. Martin, should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

The Department of Professional Regulation, Board of Funeral Directors and Embalmers, (DPR) presented the testimony of Michael Ganey, Tina Denise King, John Livings, William P. Gunter, John Charles Thomas, Blaine D. Yose, Jr., Elise Rice, and Tom K. Hanna. DPR Exhibits 1-8 were admitted in evidence. Martin presented no testimony and no exhibits.

The transcript of the proceedings was filed on May 10, 1990. DPR filed its proposed findings of fact and conclusions of law on May 11, 1990. Martin filed his proposals on May 21, 1990. Martin's proposals consist of six pages of allegations of fact and argument which are not contained in the evidence offered at the formal hearing. In the document, Martin states that his proposals are

his chance to present his side of the controversy. However, Martin offered no testimony at the hearing and has thereby lost his chance to tell his side.

Further, Martin attaches numerous documents to his proposals, but Martin offered no documents to be placed in the record at the hearing. Because Martin's proposals consist of statements which are not supported by the record in this case, all the proposals are rejected and Martin's proposals are not considered. The proposed findings of fact and conclusions of law filed by DPR have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Marvin W. Martin is a licensed funeral director and embalmer in the State of Florida, having been issued license no. FE0000982. He was so licensed at all times material to the Amended Administrative Complaint.

   
   

2. Abbey-Tallahassee Memory Gardens is a licensed funeral home in the State of Florida having been issued license No. FH0001579 on December 24, 1987.

   
   

3. Martin was the funeral director and embalmer at Abbey-Tallahassee from December 24, 1987, until November 23, 1988.

   
   

4. Tina King and Michael Ganey have never been licensed as funeral directors and embalmers in the State of Florida. Each was employed at Abbey- Tallahassee during the time that Martin was funeral director and embalmer at the funeral home.

   
   

5. Michael Ganey embalmed bodies three or four times at Abbey-Tallahassee. He did so at the direction of and with the knowledge of Martin. On one of these occasions, Martin was present. During the other instances Martin was not present, but knew of the activity.

   
   

6. Because Ganey was not licensed, Martin signed all of the embalming affidavits and attested that he had performed the embalmings that Ganey had in fact performed.

   
   

7. Tina King participated in one embalming of an autopsied body by sewing up parts of the body and assisted Martin by spraying bodies, handing him things and turning on the embalming machine. Everything she did was with Martin's knowledge and at his direction.

   
   

8. DPR presented substantial amounts of evidence regarding the unsanitary conditions and regarding the burial of the remains of a stillborn infant in a black garbage bag at Abbey-Tallahassee while Martin was the funeral director. This evidence is not considered and no Findings of Fact are made based on it because no allegations were made in the Amended Administrative Complaint which relate to this evidence.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

10. The Amended Administrative Complaint alleges that Martin permitted unlicensed employees of Abbey-Tallahassee to engage in the practice of embalming. Specifically, Martin is charges with violations of Section 470.036(1)(a), (n), and (g), Florida Statutes. These statutes state:

    
    

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

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

          * * *

          (g) Fraud, deceit, negligence,

          incompetency, or misconduct, in the practice of funeral directing, embalming, or cinerator facility operation.

          * * *

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

          Section 470.002 contains the following definitions:

          (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 . .

          * * *

          (6) "Practice of embalming" means disinfecting or preserving or attempting to disinfect or preserve dead human bodies by replacing certain body fluids with preserving and disinfecting chemicals.

          
          

11. Only licensed funeral directors and embalmers can practice funeral directing and embalming. Section 470.031. Additionally, Section 470.029 requires the preparation and filing of affidavits regarding each embalming. The affidavits must be "signed by the embalmer who performs the embalming and the funeral director in charge of the establishment."

    
    

12. The evidence is quite clear that Martin violated Sections 470.036(1)(a) and (n) by aiding or assisting unlicensed persons to practice embalming and by violating the provisions of Section 470.031. Martin's actions in allowing and aiding the unlicensed practice of embalming is also misconduct in violation of Section 470.036(1)(g).

    
    

13. DPR presented evidence regarding the disposal of the body of a stillborn infant by burial in a black plastic trash bag. In fact several witnesses were involved in the exhumation of that body and several photographs of the exhumation were offered in evidence and were admitted without objection. During the course of the hearing, DPR argued that the evidence regarding the burial of the infant should be admitted and considered because the Amended Administrative Complaint contained an allegation of violation of Section 470.036(1)(g) for "engaging in negligence, incompetence or misconduct in the

    practice of embalming." However no factual allegations can be found in the Amended Administrative Complaint regarding the embalming or burial of the infant remains. "Although a complaint filed by an administrative agency is not required to fulfill the technical niceties of a legal pleading, it must be specific enough to inform the accused with reasonable certainty of the nature of the charges. . . . Furthermore, a complaint seeking a license revocation must state with specificity the acts complained of to allow the licensee a fair chance to prepare a defense." Hunter v. Department of Professional Regulation,

    458 So.2d 842, 844 (Fla. 2d DCA 1984). See also Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984), and Department of Professional Regulation v. Dong Hack Koo, M.D., 9 FALR 6642 (Final Order Oct. 30, 1987) adopting Recommended Order at 9 FALR 6645, 6653.

    
    

14. For these reasons, the testimony and exhibits related to the infant burial are not relevant to any charge properly raised in the Amended Administrative Complaint and are rejected as findings of fact in this case. They cannot be considered in determining the guilt or innocence of Martin and they cannot be considered in assessing any penalty.

    
    

15. DPR failed to cite the Board's disciplinary guidelines in its complaint, argument at hearing, or proposed recommended order. It appears that there are such guidelines in Chapter 21J-30, Florida Administrative Code. Specifically, Rule 21J- 30.001(1)(f), (4)(a), (g), (h), and (n) relate to the violations proved in this case. These guidelines are considered and followed in calculation of the recommended penalty set forth below.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Funeral Directors and Embalmers enter a Final Order and therein:

1. Find Marvin W. Martin guilty of violating Section 470.036(1)(a), (g), and (n), Florida Statutes.

   
   

2. Impose an administrative fine in the amount of $750.

   
   

3. Place Martin on probation for a period of one year, with supervision of a Board approved sponsor.

DONE and ENTERED this 7th day of June, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

7th day of June, 1990.

APPENDIX TO THE RECOMMENDED ORDER CASE NO. 90-0706

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(4); 5(4); 6(4&5) ; 7(5); 8(5); 9(6); 11(4); 12(7); and 13(7).

   
   

2. Proposed findings of fact 3, 10, and 14-17 are rejected as being irrelevant for the reasons stated in this Recommended Order.

COPIES FURNISHED:

Cynthia Gelmine Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Marvin W. Martin

302-1 Flowerwood Drive

Chattahoochee, FL 32324

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Anna Polk

Acting Executive Director

Board of Funeral Directors and Embalmers Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 90-000706

Orders for Case No: 90-000706