STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-4297

) MICHAEL W. THOMAS d/b/a THOMAS ) & SONS FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 23, 1995, in Ft. Pierce, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Donnette Reid, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Victor John E. Vale, II, Esquire

205 South Second Street Ft. Pierce, Florida 34950

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what action should be taken against him, if any.

PRELIMINARY STATEMENT

On June 8, 1994, Petitioner filed an Administrative Complaint against Respondent alleging that he had violated a statute regulating his conduct as a funeral director and embalmer, and Respondent timely requested a formal hearing. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding. Thereafter, Petitioner was granted leave to file an Amended Administrative Complaint.

Petitioner presented the testimony of Libby Piersall; Theodore Rice; Claude

1. Hobbs, Jr.; Victor A. Hankins; Leslie J. Dyer; and, by way of depositions,

   Lena Cohens and Chuck Kramer. Petitioner's Exhibits numbered 1-3 were admitted in evidence. Respondent Michael W. Thomas testified on his own behalf.

   
   

   Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent Michael W. Thomas has been a licensed funeral director and embalmer in the state of Florida, having been issued license number FE0003256.

      
      

   2. In November of 1993, Richard Hector was extremely ill and dying at A Better Way in Christ Mission in Ft. Pierce, Florida, a homeless shelter for men where he had lived and worked. In his final days, he was attended by a hospice agency. The Mission employees summoned Lena Cohens, Hector's sister, to travel from New York where she lived to Ft. Pierce to be with her brother.

      
      

   3. The St. Lucie County Department of Human Services maintains a rotation list for the funeral homes in the area to be responsible to care for the remains of indigents. Respondent was the designated business for the month of November, 1993. Under local ordinances, if there is no next of kin or if the next of kin files for indigency, the County will determine if the death is a County case and eligible for payment of burial expenses by the County.

      
      

   4. On November 15, 1993, at 2:40 p.m., Hector died at the Mission. The hospice employees advised the Mission employees that hospice would make arrangements to have his remains transported to a funeral home, and a Mission employee went to the motel where Cohens was staying to bring her back to the Mission. Someone contacted Respondent who dispatched a removal service, Tri- County Mortuary Services, to pick up the body of Hector at the Mission and transport it to Thomas & Sons Funeral Home.

      
      

   5. On November 16, 1993, Lena Cohens, Hector's sister, and Libby Piersall, one of the directors of the Mission and a friend of Hector, went to Thomas & Sons Funeral Home to make funeral arrangements. They took with them clothes for Hector to be used for his viewing and his burial. Respondent's mother, Eliza Thomas, was present at the funeral home when they arrived, and Respondent was not.

      
      

   6. Cohens and Piersall identified themselves to Respondent's mother and told her why they had come. They said they wanted a viewing of Hector for family and friends. Eliza Thomas told them that Hector would not need any clothes because they would just dig a hole, put the body in a box, and put the box in the ground. Cohens and Piersall became very upset at Respondent's mother's explanation of how the body would be handled and left the funeral home without authorizing Thomas & Sons Funeral Home to perform any services. Specifically, there was no discussion regarding embalming the body.

      
      

   7. Cohens and Piersall returned to the Mission and told Chuck Kramer, a Mission employee, what had happened at Thomas & Sons Funeral Home. Cohens told Kramer she wanted a different funeral home to care for her brother's remains. Kramer contacted Buddy Hobbs at Haisley-Hobbs Funeral Home and requested that he take over the arrangements so they could be handled in a better manner and so the family could have a viewing. Based upon what he was told, Hobbs advised Kramer that he could not do anything because the County would take over the

      arrangements. Hobbs explained to Kramer about the County's rotation list and that Thomas & Sons Funeral Home was on the list for November.

      
      

   8. The following morning, Piersall and Cohens went to the County's Department of Human Services to apply for County benefits for an indigent funeral. While they were there, Kramer began going through Hector's belongings at the Mission. Kramer found a bank statement and bank book showing that Hector had over $1,300 in the bank. As soon as Piersall and Cohens returned to the Mission, Kramer told them about the bank account. They again telephoned Hobbs, told him how much money Hector had, and Hobbs told them that he would make the arrangements for Hector's funeral for that amount of money. He made an appointment with them for 1:00 that afternoon, November 17.

      
      

   9. Cohens, Piersall, Kramer, and Reverend Ted Rice from the Mission went to the 1:00 appointment with Hobbs. Hobbs contacted Petitioner for guidance on how to handle the situation and was advised that he should prepare a release to be taken to Thomas & Sons Funeral Home. Hobbs prepared a release directed to Thomas & Sons Funeral Home which read as follows:

      
      

      I, LENA COHENS, sister of RICHARD HECTOR,

      Deceased, hereby authorize the release of the remains of my brother, RICHARD HECTOR,

      to Haisley-Hobbs Funeral Home of Ft. Pierce, Florida.

      
      

      The release was signed by Lena Cohens, witnessed by Libby Piersall and Chuck Kramer, and notarized. Cohens, Piersall, Kramer, Rice, Hobbs, and Victor Hankins, an employee of Haisley-Hobbs, then went to Thomas & Sons Funeral Home with the release to pick up the body of Richard Hector.

      
      

   10. When they arrived there, only Eliza Thomas was present. Hobbs told her who he was and then introduced everyone else. He gave her the release and advised her that they were there to pick up Hector's body. She told him she would not release the body and telephoned Respondent who came to the funeral home.

       
       

   11. When Respondent arrived, Hobbs gave Respondent the release. Respondent advised Hobbs that he would not release the body until after someone paid him $420 to reimburse him for transporting and embalming the body. Hobbs

       asked Respondent if Respondent understood what he was saying and that Respondent could not hold the body as ransom. Respondent told Hobbs that Hobbs could call it whatever he wanted but that Respondent would not release the body until after he was paid. Respondent then told the group to leave his place of business.

       
       

   12. Respondent's refusal and stated reason were heard by Piersall, Rice, and Kramer. Respondent stated no other reason for his refusal to release the body. Specifically, Respondent did not say anything about his belief that Hector was a County case. The group left Thomas & Sons Funeral Home without Hector's remains.

       
       

   13. On November 18, Hobbs called Petitioner again to advise what had happened. One of Petitioner's attorneys called Hobbs back and advised that the attorney had spoken to Respondent and that Respondent would be calling Hobbs to come and pick up the remains.

       
       

   14. Instead, Respondent telephoned the Mission and told Kramer to have Haisley-Hobbs come and pick up the body. Kramer then called Hobbs, and Hobbs sent a driver and another employee of Haisley-Hobbs to Thomas & Sons Funeral

       Home to pick up the body. When they arrived, Respondent refused to give them the body and told them that he would deliver the body to Haisley-Hobbs instead. Hector's body arrived at Haisley-Hobbs later that same day.

       
       

   15. In a prior administrative proceeding, Petitioner filed an administrative complaint against Respondent on April 4, 1989, alleging, inter alia, that Respondent had refused to promptly surrender the custody of a dead body upon the express order of the legally authorized person, and Respondent requested a formal hearing regarding that administrative complaint. That prior matter was subsequently referred to the Division of Administrative Hearings where the matter was scheduled for formal hearing. After the parties engaged in discovery, that administrative complaint was referred back to the probable cause panel of the Board of Funeral Directors and Embalmers for re-consideration.

       
       

   16. In that prior action, the probable cause panel determined that although Respondent had violated the statutory requirement to surrender properly the custody of a dead human body upon the express order of the legally authorized person, the circumstances surrounding that refusal dictated that that administrative complaint be dismissed with only a letter of guidance issued to Respondent. That letter of guidance, dated November 22, 1989, and sent to Respondent at Thomas & Sons Funeral Home, became a permanent record in Respondent's licensure file. That letter of guidance does not, however, constitute prior disciplinary action.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

       
       

   18. The Amended Administrative Complaint alleges that Respondent has violated Section 470.036(1)(p), Florida Statutes, which prohibits a licensed funeral director or embalmer from refusing to surrender promptly the custody of a dead human body on the express order of the legally authorized person. Petitioner has presented clear and convincing evidence that Respondent violated that provision.

       
       

   19. Respondent testified that he refused to surrender the body of Richard Hector because he was waiting to hear from the County as to how the County wanted him to proceed since the matter was a County case. Respondent's testimony is not credible. Respondent made no effort to contact the County upon being presented with the signed release directing him to release the body to Haisley-Hobbs Funeral Home. Further, although Respondent testified that he stated to the group demanding surrender of the body that he needed to get County approval, none of the group present heard him state such a reason.

       
       

   20. Moreover, the County had never declared Richard Hector to be a County case. Respondent knew that in order to be a County case, the decedent had to have no next of kin and no assets, and the County would make that determination. At the time of his refusal, Respondent knew that Hector had next of kin, namely, Lena Cohens, his sister. Rather, the record reflects that Respondent did indeed attempt to hold the body in exchange for payment of money. Regardless of who is responsible for payment for services, Section 470.036(1)(p), Florida Statutes, requires that a licensed funeral director or embalmer presented with a signed release from the next of kin must release the body.

   21. Section 470.036(2)(c), Florida Statutes, authorizes the imposition of an administrative fine up to $5,000 for each count or separate offense. Rule 61G8-30.001(4)(p), Florida Administra-tive Code, provides that a violation of Section 470.036(1)(p), Florida Statutes, shall result in a penalty ranging from an administrative fine of $500 to a 6-month suspension of licensure. Petitioner recommends in its Proposed Recommended Order that Respondent be fined in the amount of $500. Since the 1989 administrative action against Respondent for an alleged violation of the same statutory provision resulted in dismissal of that proceeding and the issuance of a letter of guidance, that prior proceeding cannot be considered prior disciplinary action against Respondent. It does, however, reflect Respondent's prior knowledge of the conduct required of him and indicates that his refusal to surrender the body was willful and with the knowledge that his conduct was improper, a factor enumerated in (5)(k) of the Rule. Further, Respondent knew on the 16th that Hector had next of kin and, therefore, may not be a County case and yet refused to release the body on the 17th and on the 18th after advising the Mission to inform Haisley-Hobbs to come and pick up Hector's body. Therefore, Petitioner's recommendation that the minimal penalty be assessed against Respondent is not appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Amended Administrative Complaint and requiring

Respondent to pay an administrative fine in the amount of $1,000 by a date certain.

DONE and ENTERED this 13th day of June, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order.

2. Respondent's proposed finding of fact numbered 1 has been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed findings of fact numbered 2-4 have been rejected as not being supported by the weight of the credible evidence in this cause.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Donnette Reid, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Victor John E. Vale, II, Esquire

205 South Second Street Ft. Pierce, Florida 34950

Susan Foster, Executive Director Department of Business and

Professional Regulation

Board of Funeral Directors and Embalmers 1940 North Monroe Street

Tallahassee, FL 32399-0754

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004297

Orders for Case No: 94-004297