Respondent), and says: = STATE ( OF FLORIDA eee DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION “BOARD OF FUNERAL DIRECTORS AND EMBALMERS © oO pe. 2 ; DEPARTMENT OF ‘BUSINESS AND 22. Be, PROFESSIONAL REGULATION, ee ~ Petitioner, , 3 G Bae 2 S O0TAS& Eo ® vs. Case Number 98-21789 Zz 2 . fan) = THOMAS A. NICOLETTE, Respondent. : / ADMINISTRATIVE COMPLAINT The DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, @eition, files this Administrative Complaint ‘against THOMAS A. NICOLETTE, 1. The Petitioner is the state agency charged with regulating the operation of funeral establishments, cineration facilities, and the practice of funeral directing and embalming, pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 470, Florida Statutes. 2. The Respondent is, and has been at all times material hereto, a licensed funeral 7 33024-8028. At all times material hereto the Respondent was a funeral director at the Van Bernas Fite 1 Chapel, and/or the Van Orsdel Mortuaries, which are licensed pursuant to funeral home establishment license FH 0000156, and co-located at 3333 NE : Jos ose Morales, was s delivered at Mercy Hospital in Miami. ane Avenue, Miami Dade Céunty Florida 33137- 3804 seme Van 2 Orie). 5. The Respondent was the funeral director i in charge of supervision at the Van Orsdel Crematory, also known as Van Orsdel Crematory Company, which is licensed pursuant to crematory license FC 0000092, and located at 3333 NE 2" Avenue, Miami, FL 33137-3804. 6. As the funeral director in charge of supervision at the cinerator facility, the Respondent 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. 7. Onor about June 29, 1995, two stillborn babies were delivered: 1. A stillborn baby boy, named Sunny Gonzalez, son of ‘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 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 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 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 in a special part of the cemetery called Babyland. 11. Acting at the request of Mr. and Mrs. Morales, their arie Ma era, . 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. Dueto negligence. at Van Orsdel, Magdalena Morales remains were prepared f 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. 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 Van Orsdel, and as part of his duties, was scheduled to cremate the remains of Magdalena Morales. 16. Mr, Siders went to the cooler, expecting to find the remains of Magdal Morales, and instead found only the remains of Sonny Gonzalez. 17. Mr. Siders quickly realized that a mistake had been made, and the wrong baby ~ buried, and so informed the Respondent. _ 18. .e R espondent then contacted Carol Van Orsdel, a 3 corporate officer of Van Orsdel Mortuari Ine and discussed the situation with her. : 19. . After discussing the situation with Carol Van Orsdel, it was ¢ decided that instead of informing the parents of the deceased infants of the error, it would be better. to cover it up and not tell the parents the truth about the error in disposition of the remains of the two : infants. 20. The Respondent then personally cremated the remains of Sonny Gonza -, Morales exhumed, and burying Sonny Gonzalez in the plot at Babyland instead. them i ina box, labeled it Magdalena Morales, and allowed the ashes to be given to Magdalena Morales’ fate, Me Morales, on or about Iuly 17, 1995. 21. Atno time did Mr. or Mrs. Gonzalez, or + Cathy Bennett, give verbal or written ~ authorization for the cremation of Sonny Gonzalez, nor were they told of the Respondent's plans to cremate their infant son. 22. The Respondent allowed the cremains of Sonny Gonzalez to be given to Mr. . Morales, with full knowledge that the cremains were not those of Mr. Morales’ daughter, Magdalena Morales. . 23. On or about July 10" or ne 1995, the Respondent lied to employee Ronald ~ Siders, in an effort to cover up his actions: The Respondent told Mr. Siders that the mistake had been remedied over the weekend (July 8-9, 1995) by having the remains of Magdalena to Mr. Siders, he Responden imade thes rep them to bew untrue, and lied to cover up the trath regarding the actions ‘he had really taken regarding disposition of the remains of the two infants. 25. Mr. Siders contacted an attorney, and told him about the switch of remains, and as a a result the onzale? s quickly learned the truth, of what had happened, 26. The ‘knowledge that the wrong g baby’ ad been buried i in what they thought was 's as was the oo they had been » their son's s grave was devastating to the Gonzalez’ Ss , twenty-nine z as s though fal ly set forth in this Count L : twenty-nine though fally set forth i in ‘this Count I items that they wanted buried with Sonny Go Gonzalez. These items were e destroyed and/or , disposed of, byt the Respondent or with his s knowledge, without the permission of the Gonzalez's. 28. Only after the Respondent and/or corporate officers at Van Orsdel, became aware that the parents of Magdalena Morales, and/or Sonny Gonzalez knew the truth of what had happened, did the Respondent reveal the true sequence of events as outlined above. 29. The Respondent's actions in 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 they were in fact his . - daughter Magdalena's cremains, were deceptive, fraudulent, and untrue. ~ COUNTI . 30. » The Petitioner ‘incorporates the allegations set forth in paragraphs one through . 31. Section 455. 207(1)(m), Florida Statutes, provides that making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession are act(s) which shall constitute ~ grounds for discipline as specified in Section 455.227(2), Florida Statutes. vos 32, Based upon t the foregoing, the Respondent violated Section 470. 036(1)(@), Florida ea Statutes by violating a provision of Section 455. 227(1), Florida Statutes, to wit: Section 455.227(1)(m), Florida Statutes. COUNT IE 33. The Petitioner incorporates the allegations set forth i in paragraphs one through ‘cremation: may not be pe: ormed until a legally authorized Person gives written 34, Based upon the foregoing, the Respondent is s guilty of having violated Section : ‘470. 036( 1)(g), Plorida Statutes, by committing fraud, deceit, negligence, incompeteny, or misconduct i in the practice of funeral directing o or ‘embalming, funeral establishment operation, cinerator facility operation or refrigeration service operation. COUNT TT 35. The Petitioner incorporates the allegations set forth in paragraphs one through twenty-nine as though fully set forth in this Count III. - 36. Section 470.0255(1) states that at the 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 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 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 4 55(1), F lorida Statutes, by his actions of cremating the remains Of Sony Gonzalez with the written permission ofa a legally authorized person, COUNT IV Vv 38. The Petitioner incorporates the allegations set forth in in paragraphs one through twenty-nine as though fully s set forth i in this s Count IV. 39. Based upon the foregoing the Respondent violated Section 470.036(1)(K), Florida Statutes, by misrepresentation or fraud in the conduct of the business of or profession of the licensee. OO . 7 WHEREF ORE, Petitioner respectfully requests that the Board of Funeral Directors and Embalmers enter an Order imposing one or more of the following penalties: revocation or suspension of the Respondent’ s license, restriction of the Respondent’ s practice” — . imposition of an administrative fine not to exceed $5, 000 per violation, issuance ofa 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. Signed this day of November 1999. By: SG.THOMAS | : Chief Attorney | vent: A FILED . Elizabeth Masters, Seno é Attomey / f- / o- -#7 Department of Business and Professional Regulation Department of Business and Professional Regulation DEPUTY CLERK 940 N. Monroe Street . . Tallahasece, "Fide 9390.07, csr Brandl Michels Case #98-21789 oo oare_VA-13 -99 RR RRR RE mre ORT ee

Docket for Case No: 00-001236