STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-0257

)

ROLLE-TILLMAN FUNERAL HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on April 30, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Donnette Reid, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Harry L. Rolle (owner)

Bobby Tillman (owner)

811 Northwest 54th Street Miami, Florida 33127

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On October 20, 1996, the Petitioner filed an Administrative Complaint against Respondent, a licensed funeral home. The eight-count Administrative Complaint alleged certain facts and, based on those facts, alleged that the Respondent committed multiple violations of the laws regulating funeral establishments. By its proposed recommended order, Petitioner concedes that it did not prove the violations alleged in Counts II, VI, and VII of the Administrative Complaint and that those counts should be dismissed. The violations alleged in the remaining counts may be summarized as follows:

Count I alleged that Respondent violated Section 470.024(6), Florida Statutes (1993)

by failing to have a full time funeral director in charge.

Count III alleged that Respondent violated Section 470.036(1)(g), Florida Statutes (1993), which prohibits fraud, deceit, negligence, incompetency, or misconduct in the practice of a funeral establishment by displaying a sign which indicated that Cleon D. Mosley was a funeral director employed by the Respondent.

Count IV alleged that Respondent violated Section 470.024(6), Florida Statutes (1993) by failing to have a licensed funeral director reasonably available to the public during normal business hours.

Count V alleged that Respondent violated Section 470.036(1)(h), Florida Statutes (1993) by failing to have on site or immediately available sufficient sealed containers of a type required for the transportation of contagious diseased human bodies as required by Rule 61G-21.003(4), Florida Administrative Code (1993).

Count VIII alleged that Respondent violated Section 470.036(1)(h), Florida Statutes (1993) by failing to submit to the Petitioner reports of "Cases Embalmed or Bodies Handled" as required by Section 470.029(1), Florida Statutes (1993).

Respondent requested a formal hearing to dispute the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. Petitioner presented the testimony of Julian Londono, Guillermo Tejeda, Cleon Mosley, Calvin Sweeting, and William Manker, Jr. Mr. Londono and Mr. Tejeda are employed by the Petitioner as an inspector and an investigator, respectively. Mr. Mosley and Mr. Sweeting are funeral directors who were, at times pertinent to this proceeding, employed by Respondent. Mr. Manker is a funeral director and an embalmer who performed certain services pursuant to an agreement with the Respondent. Petitioner presented 17 exhibits, each of which was admitted into evidence. Harry Rolle and Bobby Tillman, the owners of Respondent, testified on behalf of the Respondent, but they presented no exhibit.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The proposed findings of fact submitted by Petitioner are adopted in material part by this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Rolle-Tillman Funeral Home, has been a licensed funeral establishment in the State of Florida. Respondent's license number is FH 0002111. The owners of Rolle-Tillman Funeral Home, Harry Rolle and Bobby Tillman, have not been licensed by Petitioner.

2. At times pertinent to this proceeding prior to January 1, 1995, Cleon

   D. Mosley, a licensed funeral director, was the funeral director in charge of Respondent. Mr. Mosley notified Respondent and the Petitioner that effective January 1, 1995, he was terminating his relationship with Respondent to become the funeral director in charge of another funeral home.

   
   

3. Upon Mr. Mosley's departure, the Respondent continued to operate as a funeral establishment without a licensed funeral director in charge.

   
   

4. On February 14, 1995, Reuben Rolle, Jr., died and his body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge.

   
   

5. On February 15, 1995, James Cooper, died and his body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge.

   
   

6. On March 7, 1995, Maggie Bullard died and her body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge.

   
   

7. On March 8, 1995, Essie Thomas Bullard died and her body was released to the Respondent for final disposition. Bobby Tillman, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge.

   
   

8. On March 16, 1995, Guillermo Tejeda, an investigator employed by Petitioner, began an investigation of Respondent. On that date, Mr. Tejeda observed posted near the front door of Respondent's facilities a sign with the following inscription:

   
   

   Cleon D. Mosley

   Licensed Funeral Director

   
   

   This sign would lead the public to believe that Mr. Mosley was still acting as the funeral director in charge for Respondent. 1/

   
   

9. On March 31, 1995, three investigators and an inspector employed by Petitioner inspected the Respondent's premises. The inspector asked for the funeral director in charge, but Respondent could not make available any licensed funeral director.

10. At the time of this inspection, the Respondent did not have on site or immediately available a sealed container of a type required for the transportation of human bodies that may be contagious as the result of disease.

    
    

11. At the time of the inspection on March 31, 1995, the embalmed body of Essie L. Thomas was found in the preparation/embalming room of the Respondent and the cremains of Reuben Rolle, Jr., were found in a desk.

    
    

12. Respondent failed to submit to Petitioner a required report entitled "Cases Embalmed or Bodies Handled" for the months of December 1994 through March 1995.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

14. Section 470.036(1), Florida Statutes, authorizes Petitioner to impose discipline against a funeral establishment and provides, in pertinent part, as follows:

    
    

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

       * * *

       1. Fraud, deceit, negligence, incompetency, or misconduct, in the practice of . . . funeral establishment operation. . . .

       2. A violation or repeated violation of this chapter . . .

       
       

15. Section 470.024(6), Florida Statutes, provides as follows:

    
    

    (6) Each licensed funeral establishment shall have one full-time funeral director in charge and shall have a licensed funeral director reasonably available to the public during normal business hours for that establishment. The full-time funeral director in charge must have an active

    license and may not be the full-time funeral director in charge of any other funeral establishment or of any other direct disposal establishment.

    
    

16. Rule 61G-21.003(4), Florida Administrative Code (1993), provided, at the times pertinent to this proceeding:

    
    

    (4) The funeral establishment shall have on site or immediately available sufficient

    sealed containers of a type required for the transportation of bodies as specified in Rule 10D-37.012, F.A.C.

17. Section 470.029(1), Florida Statutes (1993), provides, in pertinent part, as follows:

    
    

    1. Each funeral establishment . . . shall report on a form prescribed and furnished by the department the name of the deceased and such other information as may be required with respect to each dead human body embalmed or otherwise handled by the establishment . . .

       
       

18. Petitioner established by clear and convincing evidence that Respondent conducted its business without having a full time funeral director in charge as alleged in Count I of the Administrative Complaint. This failure constitutes a violation of Section 470.024(6), Florida Statutes (1993), and of Section 470.036(1)(h), Florida Statutes.

    
    

19. Petitioner did not establish the allegations of Count II of the Administrative Complaint. Consequently, that count should be dismissed.

    
    

20. Petitioner established by clear and convincing evidence that Respondent continued to display a sign reflecting that Mr. Mosley was the funeral director months after he had terminated his employment with Respondent. The continued display of this sign, at a minimum, constitutes misconduct within the meaning of Section 470.036(1)(g), Florida Statutes, as alleged by Count III of the Administrative Complaint.

    
    

21. Petitioner established by clear and convincing evidence that Respondent failed to have a licensed funeral director reasonably available to the public during normal business hours at the time of the inspection on March 31, 1995 as alleged in Count IV of the Administrative Complaint. This failure constitutes a violation of Section 470.024(6), Florida Statutes (1993), and of Section 470.036(1)(h), Florida Statutes.

    
    

22. Petitioner established by clear and convincing evidence that Respondent failed to have on site or immediately available any sealed container of a type required for the transportation of contagious diseased human bodies as required by Rule 61G-21.003(4), Florida Administrative Code (1993), as alleged in Count V of the Administrative Complaint, and is a violation of Section 470.036(1)(h), Florida Statutes.

    
    

23. Petitioner did not establish the allegations of Count VI of the Administrative Complaint. Consequently, that count should be dismissed.

    
    

24. Petitioner did not establish the allegations of Count VII of the Administrative Complaint. Consequently, that count should be dismissed.

    
    

25. Petitioner established by clear and convincing evidence that Respondent failed to submit to the Petitioner reports of "Cases Embalmed or Bodies Handled" for the months December 1994 through March 1995, as required by Section 470.029(1), Florida Statutes (1993), as alleged in Count VIII of the Administrative Complaint, and is a violation of Section 470.036(1)(h), Florida Statutes.

    
    

26. Section 470.036(2), Florida Statutes, authorizes Petitioner to impose penalties against a funeral establishment that has violated any of the provisions of Section 470.036(1), Florida Statutes. The authorized penalties

    range from the issuance of a reprimand to revocation and include the imposition of an administrative fine not to exceed $5,000 for each count or separate violation, the imposition of probation, and the suspension of licensure.

    
    

27. Rule 61G8-30.001, Florida Administrative Code, contains disciplinary guidelines pertinent to this proceeding. In its post-hearing submittal, the Petitioner makes recommendations as to the penalties that should be imposed against Respondent. Those recommendations are well within the disciplinary guidelines that have been adopted by Petitioner and appear to be a reasonable disposition of this matter. Consequently, the penalties recommended by Petitioner are incorporated in the recommendation that follows.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and conclusions of law contained herein and which imposes an administrative fine against Respondent in the total amount of $2,200 and places Respondent's licensure on probation for a period of three years.

DONE AND ENTERED this 4th day of October, 1996, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996.

ENDNOTE

1/ Section 470.024(13), Florida Statutes, provides, in pertinent part, as follows:

(13) Each funeral establishment must display at the public entrance the name of the establishment and the name of the full-time funeral director in charge.

COPIES FURNISHED:

Donnette Reid, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mr. Harry L. Rolle

737 Northwest 51 Street

Miami, Florida 33127

Mr. Robert Tillman

1026 Northwest 95 Terrace, No. 4

Miami, Florida 33150

Rolle-Tillman Funeral Home 811 Northwest 54 Street

Miami, Florida 33127

Susan Foster, Executive Director

Board of Funeral Directors and Embalmers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. 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 within 15 days from the date of 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: 96-000257

Orders for Case No: 96-000257