STATE OF FLORIDA Gg & DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, e BOARD OF FUNERAL DIRECTORS AND EMBALMERSZ,9, 7 ee 24, “2 a DEPARTMENT OF BUSINESS AND CH So % PROFESSIONAL REGULATION, Wg f, By A, , wy SF Petitioner, a vs. Case Number 97-21096 gona VAN ORSDEL CREMATORY, Also Known As Van Orsdel Crematory Company, Respondent. ” / EEE ADMINISTRATIVE COMPLAINT SUN tN Rel ’ fy The DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, (Petitioner), files this Administrative complaint against - VAN ORSDEL CREMATORY, (Respondent), Ve and sayst ‘4. The Petitioner is the state agency charged with regulating the operation of funeral and cinerator gacility establishments, and the practice of funeral “Givécting and embalming, putsuant to Section 20.165, Florida Statutes, and Chapters 455 and 470, Florida “statutes. 2. At all times material hereto, licensed funeral director and embalmer Tom Nicolette, Florida funeral director and embalming License FE 0003112, was employed by Van Orsdel Mortuaries, Ine. and/or the Respondent. preps Ree Wo ew] 3. Nicolette was a funeral director at the Van Orsdel Northside Funeral Chapel, and/or the Van Orsdel Mortuaries, which are licensed pursuant to funeral home establishment license FH 0000156, and co-located at 3333 NE 2°? avenue, Miami, Dade County, Florida 33137-3804. 4, Wicolette was also employed by Van Orsdel as the funeral director in charge of supervision of the Respondent. 5. The Respondent establishment is a cinerator facility, licensed pursuant to crematory license FC 0060092, and also located at 3333 NE 2° avenue, Miami, bade County, FL (33137-3804. 6. As the funeral director in charge of supervision at the clnerator facility, Tom Nicolette was responsible for making sure the facility, its operations, and all persons employed in the facility, complied with all applicable state and federal laws and rules. cn on or about dune 29, 1995, two stillborn babies were Yo AR’ stillborn baby boy, named Sunny Gonzalez, son of “delivered Liza Rodriguez (now Liza Gonzalez, and hereafter referred to as Mrs. Gonzalez) and Frank Gonzalez, was delivered at South Miami Hospital; 2. A stillborn baby girl, named Magdalena Morales, daughter of Magda and Jose Morales, was delivered at Mercy Hospital in Miami. eee ee - - 8. The respective families chose Van Orsdel to handle the necessary funeral arrangements, and the remains .of both of the babies were transported to Van Orsdel Northside Chapel and/or Van Orsdel Mortuary and/or the Respondent cineration facility, on or about June 30, 1995. 9. Acting at the request of Mr. and Mrs. Gonzalez, their friend, Kathy Bennett, contacted Van Orsdel and made arrangements for Sonny Gonzalez's remains to be buried, to include paying Van Orsdel for the arrangements. 10. The funeral services for Sonny Gonzalez were planned for July 1, 1995, at Miami Memorial Park cemetery, for burial ina special part of the cemetery called Babyland. LL. Acting at the request of Mr. and Mrs. Morales, their friend, ‘rie Madera, contacted Van Orsdel and made arrangements for Magdalena Morales' remains to be cremated, to include paying Van orsdel for the cremation and attendant costs. 12.’ Due to negligence at Van Orsdel, Magdalena Morales' remains . were prepared for burial, and were in fact buried, on July 1, 1995, at Miami Memorial Gardens, instead of Sonny Gonzalez's_ remains. - 13. Despite the fact that the remains of Magdalena were clearly identifiable, to include having an identifying tag affixed to the body, and were clearly not the remains of an infant boy, the error was not discovered by Van Orsdel prior to the burial. LoS) 1 14. Mr. and Mrs. Gonzalez attended the funeral service for Sonny Gonzalez, not knowing that the wrong remains were being buried in their son's burial plot. 15. The following week, on Friday, July 7, 1995, Van Orsdel employee Ronald Siders went to his workplace at the Respondent facility, and as part of his duties, was scheduled to cremate the remains of Magdalena Morales. 16. Mr. Siders went to the cooler at the Respondent facility, expecting to find the remains of Magdalena Morales, and instead found only the remains of Sonny Gonzalez. "a7. Mr. Siders quickly realized that a mistake had been made, and the wrong baby buried, and so informed Tom Nicolette. 18. Nicolette then contacted licensed funeral director Carol Van orsakt, in her capacity as a corporate officer of Van Orsdel, and/or in her capacity as a supervisor and/or manager at Van Orsdel, and/or the Respondent facility, in the absence of her brothet, licensed funeral director Donald Van Orsdel, and ith her. “1s. After discussing the situation, Carol van Orsdel and Tom Nicolette both agreed that it would be better not to tell the parents the truth about the error in disposition of the remains of the two infants. . . - 20. ‘They agreed that instead it would be best to simply leave Magdalena Morales in Sunny Gonzalez's grave, and cremate Sonny Ve UY Gonzalez at the Respondent establishment, and give his cremains to Mr. and Mrs. Morales under the guise that the cremains were really those of their daughter, Magdalena Morales. 21. Tom Nicolette, with the knowledge, and/or permission, and/or consent, of the Respondent, then personally cremated the remains of Sonny Gonzalez at the Respondent establishment, placed them in a box, labeled it Magdalena Morales, and allowed the ashes to be given to Magdalena Morales! father, Mr. Morales, on or about duly 17, 1995. 22. At no time did Mr. or Mrs. Gonzalez, or Cathy Bennett, give verbal or written authorization for the cremation of Sonny Gonzalez. 23. The Respondent facility distributed the cremains of Sonny Gonzalez\to be given to Mr. Morales, with knowledge that the cremains were not those of Mr. Morales' daughter, Magdalena Morales. 24. On or about July 10 or 12°° 1995, Tom Nicolette lied to the Respondent's employee, Ronald Siders, in an effort to cover up the actions taken to dispose of the remains. Nicolette told Mr. Siders that the mistake had been remedied over the weekend (July ; 1995) by having the remains of Magdalena Morales exhumed, and burying Sonny Gonzalez in the plot at Babyland instead. - 25. At the time Nicolette made these representations to Mr. Siders, he knew them to be untrue, and lied to cover up the truth i ' : \ ' wo | U regarding the actions that had been taken at the Respondent incinerator facility: 26. Mr. Siders contacted an attorney, and told him about the switch of remains, and as a result the Gonzalez's quickly learned the truth of what had happened. 27. The knowledge that the wrong baby had been buried in what they thought was their son's grave was devastating to the Gonzalez's, as was the knowledge that they had been deceived by actions taken at the Respondent facility, and finally, that the remains of their son had been cremated against their wishes and : without their consent at the Respondent incinerator Facility. 28. The Gonzalez's had also provided Van Orsdel with a bag filled with sentimental items that they wanted buried with Sonny conzalext These items were destroyed and/or disposed of, at the Respondent facility, without the permission of the Gonzalez's. 29. The truth of what had taken place at the Respondent Z facility was only revealed after corporate officers at Van Orsdel became aware that the. parent of the infants had been told the “30. The Respondent's ‘actions ‘in permitting, condoning, ‘authorizing, and/or failing to prevent Nicolette from: cremating the remains of Sonny Gonzalez; deliberately mislabeling- Sonny Gonzalez's cremains as the cremains of Magdalena Morales; and allowing them to be given to Mr. Morales under the guise that wi - VU they were in fact his daughter Magdalene's cremains; were deceptive, fraudulent, and untrue. 31. The Respondent took no action to notify the families of either of the infants regarding the truth of what happened. 32. The Respondent did not report the truth of what had happened regarding the disposition of the remains of the infants to any State, Federal or local agency, to include the State of Florida Board of Funeral Directors and Embalmers. . COUNT I 33. The Petitioner incorporates the allegations set forth in ~ paragraphs one through thirty-two though fully set forth in this Count I. 34. we upon ‘the foregoing, the Respondent is guilty of having \icratea Section 470.036(1)(g), Florida Statutes, by committing fraud, deceit, “negligence, incompetency, or misconduct in the practice of cineration facility operation. Po COUNT IZ inc mporates the a allegations set forth in paragraphs one “through thirty- two as though fully set forth in this Count II. Florida Statutes 36. Section 470.0255 (1) time of the arrangement for a cremation ‘performed by any ‘person: Licensed pursuant to this chapter, ‘the person contracting ‘for cremation services ‘shall ‘be ‘required to designate his or her U . oo . WU intentions with respect to the disposition of the cremated remains of the deceased in a signed declaration of intent which shall be . provided by and retained by the funeral or direct disposal establishment. A cremation may not be performed until a legally authorized person gives written authorization for such cremation. The cremation must be performed within 48 hours after a specified time, which has been agreed to in writing by the person authorizing the cremation. 37. Based upon the foregoing, the Respondent violated Section 470.036(1) (h) by violating any provision of Chapter 470 and any rules promulgated pursuant thereto, to wit: violation of Section 470.0255(1), Florida Statutes, by performing a cremation without the written permission of a legally authorized person. Y . Yo COUNT III 38. The Petitioner incorporates the allegations set forth in paragraphs one through _ thirty-two as though fully set forth in this Count Iil. ~ 39. Based upon the foregoing the Respondent violated isrepresentation, or Section 470.036 (1) (k) Florida st t tes, by fraud in the conduct Of the business of ‘the licensee. more ‘of the following penalties: revocation or suspension of the Respondent's license, restriction “of the Respondent‘ s practice, cope wi 'w) imposition of an administrative fine not to exceed $5,000 per violation, issuance of a reprimand, placement of the Respondent on probation, assessment of costs associated with investigation and prosecution, imposition of any or all penalties delineated within Sections 455.227(2) and 470.036 (2), Florida Statutes, and/or any other relief that the Board is authorized to impose pursuant to . Chapters 455, and/or 470, Florida Statutes, and/or the rules promulgated thereunder. h Signed this SO day of November 1999. By THOMAS G. “THOMAS - Chief Attorney s ; ° icf. COUNSEL FOR DEPARTMENT: -{8- Elizabeth Masters, Senior Attorney Florida Bar Number 401640 Department of Business and Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 a Case’ # 97-21096 F | L E D Department of Business and Professional Regulation DEPUTY CLERK — (DATE, : 1A I3- a RET ERNIE ey oo

Docket for Case No: 00-001234