STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 00-1235

)

BERNARD C. POITIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 21, 2000, at Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie Beth Woodham, Esquire

David K. Minnaci, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Bernard C. Poitier, pro se at Final Hearing: 2321 Northwest 62nd Street

Miami, Florida 33147

For Respondent Michael B. Feiler, Esquire at Post-Hearing: Michael B. Feiler, P.A.

122 Minorca Avenue

Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 470.036(1)(g) and (p), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 6, 1999, Petitioner, Department of Business and Professional Regulation, Board of Funeral Directors and Embalmers (Department), filed an Administrative Complaint against Respondent, Bernard C. Poitier (Poitier), alleging that Poitier violated Subsection 470.036(1)(g), Florida Statutes, by committing negligence, incompetence, or misconduct in the practice of funeral directing and Subsection 470.036(1)(p), Florida Statutes, by refusing to surrender promptly the custody of a dead human body upon the express order of the legally authorized person. Poitier requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

The case was originally assigned to Administrative Law Judge Errol H. Powell but was transferred to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

The final hearing was scheduled for May 22, 2000. On

May 12, 2000, Petitioner filed a Motion for Continuance, which was granted. The final hearing was rescheduled for

June 21, 2000.

At the final hearing, Petitioner called the following witnesses: Rosa Alvarez, Carlos Alvarez, Clarence Ford, and

Clifstonia Butler. An interpreter was provided for Rosa and Carlos Alvarez. Petitioner's Exhibits numbered 1-3 were admitted in evidence. Respondent testified on his own behalf and called Ellen Johnson, Mike Norman, Tyrone Lamar, and Kevin Rieth.

Respondent submitted no exhibits.

Official recognition was taken of Chapter 470.21, Florida Statutes, and Chapter 61G8-14, Florida Administrative Code.

The parties agreed to file proposed recommended orders within ten days of the filing of the Transcript, which was filed on July 19, 2000. On August 2, 2000, Petitioner filed a request for extension of time to file proposed recommended orders. The request was granted, and the time for filing proposed recommended orders was extended to August 14, 2000. On August 3, 2000, Petitioner filed its Proposed Recommended Order, which has been considered in rendering this Recommended Order.

On August 14, 2000, counsel for Respondent filed a Notice of Appearance and Respondent's Motion to Extend Time for filing his proposed recommended order. The motion was granted, and the time for filing proposed recommended orders was extended to

August 29, 2000. Respondent filed a second Respondent's Motion to Extend Time on August 30, 2000. The time for filing proposed recommended orders was extended to October 11, 2000. On September 15, 2000, Respondent filed the affidavit of

Giovanny Garcia. The affidavit has not been considered in

rendering this Recommended Order. Respondent did not file a proposed recommended order on or before October 11, 2000.

FINDINGS OF FACT

1. Basilia Valerio Suazo passed away on February 10, 1999, in Miami, Florida. Her daughter, Rosa Alvarez, and her son, Carlos Alvarez, went to Poitier Funeral Home, Inc. (Poitier Funeral Home), on February 15, 1999, to discuss funeral arrangements. Poitier is a funeral director for Poitier Funeral Home.

2. Ms. Alvarez signed an authorization form on Poitier Funeral Home letterhead, which stated:

   I hereby designate the above-named funeral establishment to take charge of funeral arrangements for: Basilia Valerio Suazo, and I authorize the release and removal of the remains to said funeral establishment for the purpose of embalming.

   I represent that I am the next of kin, or am acting as an authorized representative for the next of kin. We agree to pay $425.00 for embalming, $90 for removal and $35.00 per day for storage if there are any problems or discrepancies [sic] before removal of any kind.

3. Poitier ran some numbers for the Alvarezes, but neither Rosa nor Carlos Alvarez can recall the specific amount which Poitier was going to charge. Poitier showed them a casket, which he said he would provide free of charge.

4. On February 16, 1999, Mr. Alvarez and Ms. Alvarez returned to Poitier Funeral Home and saw their mother's name

   listed on the board with the time and date of the viewing and burial.

5. Ms. Alvarez had contacted out-of-town relatives and advised them of the dates of the viewing and burial. Nine relatives were coming from New York and an uncle was coming from Honduras. The out-of-town relatives arrived prior to the time scheduled for the viewing and burial.

6. On February 19, 1999, someone from Poitier Funeral Home called the Alvarez residence and advised a relative of

   Ms. Alvarez that Poitier was not going to conduct the funeral on the next day. Rosa and Carlos Alvarez went to the funeral home to see why the funeral could not take place. Poitier was not in when they arrived, and they spoke to an associate of Poitier.

   Mr. Alvarez explained that he had a workers' compensation claim from which he could pay for the funeral, but the funds would not be available before the date of the funeral. Poitier's associate advised them Poitier could not perform the funeral without being paid first. As they were leaving, Poitier appeared and told them that the funeral could not take place.

7. Rosa and Carlos Alvarez went to Mr. Alvarez's attorney who was handling the workers' compensation claim to see if

   Mr. Alvarez could receive money to pay for the funeral. The attorney sent them to Panciera Funeral Home (Panciera), where they received a cost estimate. They went back to see Poitier and gave him the information from Panciera, including a copy of a

   planner in which Panciera estimated the cost of the funeral to be in excess of $3,000. Poitier called and spoke to someone at Panciera and asked whether Panciera would do the funeral for free because the Alvarezes did not have any money. The representative from Panciera said that Panciera could not provide a funeral for free.

8. On February 21, 1999, the Alvarezes went to Calvin Butler, Jr. Memorial Funeral Home, Inc. (Butler Funeral Home), spoke to Rebecca Butler, and signed an authorization allowing the release and removal of Ms. Suazo's remains to the Butler Funeral Home. Rosa and Carlos Alvarez made payment arrangements with

   Ms. Butler.

   
   

9. Ms. Butler sent a copy of the authorization to Poitier Funeral Home by facsimile transmission on February 21, 1999. She called Poitier Funeral Home on February 22, 1999, and spoke to Mr. Richardson. She sent another facsimile of the authorization to Poitier Funeral Home on February 22, 1999. During the week of February 22, 1999, Ms. Butler spoke to Poitier concerning the release of Ms. Suazo's remains, and Poitier told Ms. Butler that he wanted to get paid, but the family did not have any funds.

10. Ms. Butler hired Quality Removal to pick up the remains of Ms. Suazo at Poitier Funeral Home, but Quality Removal was unsuccessful in its attempts to get the body released from Poitier Funeral Home.

11. On February 23, 1999, the Department received a complaint from Rebecca Butler concerning Poitier's refusal to release Ms. Suazo's remains. On February 23, 1999,

    Clarence Ford, an investigator with the Department, called Poitier and asked him to release the body. Poitier refused to release the body unless the Alvarezes paid him $700.

12. Poitier claims that the Alvarezes came to Poitier Funeral Home on February 23, 1999, and showed them a planner from Panciera and asked Poitier not to do anything until he heard from them. Based on the evidence presented, the Alvarezes did not meet with Poitier on February 23, 1999, and did not advise him to do nothing until he heard from them.

13. On February 24, 1999, Mr. Ford again called Poitier and asked that the body be released, and Poitier again refused to release the body.

14. On February 25, 1999, the Alvarez's along with Clarence Ford went to Poitier's Funeral Home to talk to Poitier about releasing Ms. Suazo's body to Butler Funeral Home. Poitier was unavailable when they arrived so they sat and waited for an hour for Poitier to finish his business. A security guard told Ford and the others that he did not want them to be talking while they were waiting and to go outside. Rosa Alvarez remained in the waiting area until Poitier came out. Poitier appeared to be upset with Ms. Alvarez and yelled at her to leave his property. Rosa Alvarez asked Poitier whether he was going to charge them

    anything in order or them to remove the body, and Poitier replied that it would cost $700. After being told to leave the property the Alvarez party went outside, where they were advised by a security guard that they could not have Ms. Suazo's body.

15. Later on February 25, 1999, Mr. Ford and Mr. Drummet, another investigator from the Department, returned to Poitier's Funeral Home with Quality Removal. At that time, Mr. Ford had a death certificate and the demand to transport the body and presented them to Poitier, who released the body.

16. The Department has incurred the following costs associated with the investigation and prosecution of this case:

    $13.30 related to the issuance of the complaint and $1,188.91 relating to the investigation. The Department also claims 25 hours related to legal work, but it did not establish whether the hours were actually costs or for attorneys' fees. In its proposed recommended order, the Department stated that costs incurred, excluding attorney time, was $1,521.61, and that the Department would incur the cost of the transcript of the final hearing.

    CONCLUSIONS OF LAW

    
    

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

18. The Department has alleged that Poitier violated Subsections 470.036(1)(g) and (p), Florida Statutes, which provide that disciplinary action may be taken for the following:

    (g) Committing fraud, deceit, negligence, incompetency, or misconduct, in the practice of any of the activities regulated under this chapter.

    
    

    * * *

    
    

    (p) Refusing to surrender promptly the custody of a dead human body upon the express order of the legally authorized person; however, this provision shall be subject to any state laws or rules governing custody or transportation of deceased human bodies.

    
    

19. The Department has the burden to establish by clear and convincing evidence the allegations in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. The Department has established by clear and convincing evidence that Poitier violated Subsections 470.036(1)(g) and (p), Florida Statutes, by failing to surrender the body of Ms. Suazo when he had a written authorization from Carlos and Rosa Alvarez authorizing the release of the body to Butler Funeral Home. Both Ms. Butler and Mr. Ford asked Poitier to release the body based on the authorization, but Poitier refused to release the body until he had been paid. When Rosa Alvarez asked what it would cost to get the body released, Poitier told her that it would be

    $700.

21. Section 470.036(2), Florida Statutes, provides that the Department may assess costs associated with investigation and prosecution of disciplinary cases. The statute does not provide for the assessment of attorneys' fees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Bernard Poitier violated Subsections 470.036(1)(g) and (p), Florida Statutes, imposing an administrative fine of $1,000, placing Mr. Poitier on probation for one year, and assessing costs of $1,521.61 plus the cost of the Transcript of the final hearing.

DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Leon County, Florida.

Susan B. Kirkland Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000.

COPIES FURNISHED:

Laurie Beth Woodham, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David K. Minnaci, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Michael B. Feiler, Esquire Michael B. Feiler, P.A.

122 Minorca Avenue

Coral Gables, Florida 33134

Madeline Smith, Executive Director Department of Business and

Professional Regulation

Board of Funeral Directors and Embalmers Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel Northwood Centre

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: 00-001235

Orders for Case No: 00-001235