STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

EMBALMERS, )

)

Petitioner, )

)

vs. )

)

MARION GRAHAM, III, )

)

Respondent. )

Case No. 02-2792PL

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 4, 2002, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles J. Pellegrini, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Miriam S. Wilkinson, Esquire

McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A.

101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondent violated Section 470.036(1)(t), Florida Statutes, by embalming a deceased human body without obtaining permission from a legally authorized person; (b) whether Respondent violated Section 470.036(1)(p), Florida Statutes, by refusing to promptly surrender custody of a dead human body upon the express order of the legally authorized person; and if so, (c) what penalty should be imposed.

PRELIMINARY STATEMENT

On May 31, 2002, Petitioner Department of Business and Professional Regulation, Board of Funeral Directors and Embalmers (Petitioner), filed an Administrative Complaint against Respondent Marion Graham, III (Respondent). The complaint alleged that Respondent had violated Sections 470.036(1)(t) and 470.036(1)(p), Florida Statutes. Respondent subsequently requested a hearing to contest the allegations of the complaint. Petitioner referred Respondent's request to the Division of Administrative Hearings on July 16, 2002.

Administrative Law Judge Charles C. Adams issued a Notice of Hearing on July 31, 2002. The notice scheduled the hearing for October 1, 2002.

Respondent filed an unopposed Motion for Continuance and Change of Venue on September 27, 2002. Judge Adams issued an

Order Granting Continuance and Re-Scheduling Hearing on October 1, 2002. This order scheduled the hearing for November 4, 2002.

On November 1, 2002, the Division of Administrative Hearings transferred the case to the undersigned.

During the hearing, Petitioner presented the testimony of six witnesses. Petitioner offered Exhibit Nos. P1 through P8, P11, P13, and P14, all of which were received into evidence.

Respondent testified on his own behalf and presented the testimony of one additional witness. Respondent offered Exhibit Nos. R1 through R6, which were received into evidence.

The Transcript of the proceeding was filed on December 5, 2002.

Respondent filed a Proposed Recommended Order and a Memorandum of Law on December 13, 2002. Petitioner filed a Proposed Recommended Order and a Memorandum of Law on December 16, 2002.

FINDINGS OF FACT

1. Respondent is the licensed funeral director in charge for Marion Graham Mortuaries in Jacksonville, Florida.

2. Catherine Gillis died at her home in Jacksonville, Florida, on August 6, 2000. Ms. Gillis was 70 years old at the time of her death.

3. Patricia Stokes, Ms. Gillis's daughter, called 911 when she found her mother on the kitchen floor. Deputy Michael Williams from the Jacksonville Sheriff's Office responded to the call.

4. Deputy Williams was unable to contact Ms. Gillis's doctor, Dr. David Badolato. The on-call physician in

   Dr. Badolato's office refused to sign off on the death certificate. Therefore, Deputy Williams called the Duval County Medical Examiner's Office, making contact with Deanna Webber, a forensic investigator.

5. After Ms. Webber spoke to the medical examiner, she called Deputy Williams back. She told him that Ms. Gillis's body could be transferred to the funeral home of the family's choice but the body must be held until the personal physician made a commitment to sign the death certificate or the medical examiner inspected the body and signed the death certificate.

6. Ms. Stokes, in consultation with her church sister, Ms. Theresa Williams, chose Respondent's funeral home to receive the body on the evening of August 6, 2000. Deputy Williams then contacted Respondent's funeral home, specifically stating that the body was to be held for inspection by the medical examiner in case the personal physician did not agree to sign the death certificate.

7. River City Removal Service transported Ms. Gillis's body to Respondent's funeral home at approximately 7:30 p.m. on August 6, 2000. Even though Ms. Stokes had approved this transfer, she mistakenly believed that the medical examiner's office had taken the body to the morgue.

8. On Monday, August 7, 2000, Ms. Stokes called the medical examiner's office to inquire about an autopsy on her mother's body and to instruct its removal to an establishment other than Respondent's funeral home. After the call,

   Ms. Stokes understood that an autopsy would not be performed at public expense and that Ms. Gillis's body was already at Respondent's funeral home.

9. In the meantime, Willie Mae Albany arrived for work at Respondent's funeral home at approximately 9:00 a.m., on August 7, 2000. At that time, Ms. Albany's job included performing clerical duties.

10. Respondent arrived at the funeral home about

    
    

    10:30 a.m., on August 7, 2000. He knew there were three bodies that needed to be embalmed that day: (a) Dorothy Green, whose body had been received on Sunday, August 6; (b) Leonard Hopkins, whose family had signed a release and permission to embalm on Saturday, August 5; and (c) Jimmie Simpson, whose body had been received on Monday, August 7. Respondent was aware when he

    arrived at the office that there was no authorization to embalm Ms. Gillis.

11. He instructed Ms. Albany to contact Eric Fleming, a freelance trade embalmer, to come in to embalm Ms. Green,

    Mr. Hopkins, and Mr. Simpson. Mr. Fleming was not an employee of Respondent's funeral home. Instead, he was paid by the case.

12. Ms. Albany left several telephone messages for

    
    

    Mr. Fleming advising him about the three bodies that needed to be embalmed. She did not know exactly when he came to work, but she transferred a telephone call to Mr. Fleming in the embalming room at the funeral home about 11:30 a.m.

13. Ms. Albany also contacted Dr. Badolato's office on the morning of August 7, 2000. After that telephone call,

    Ms. Albany understood that Dr. Joedrecka Brown would sign the death certification for Ms. Gillis. Ms. Albany then typed an Application for Burial-Transit Permit for Ms. Gillis. This form advises the county health department that someone has died and that a death certificate is forthcoming.

14. Ms. Albany placed the burial-transit permit application on the counter where Respondent usually picks up the typed forms. Respondent signed the form on August 7, 2000, even though his signature on the form was dated August 9, 2000.

15. Because her mother's body was already at Respondent's funeral home, Ms. Stokes decided to make funeral arrangements

    with Respondent instead of removing the body to another establishment. Thus, Ms. Stokes and her church sister, Ms. Williams, went to Respondent's funeral home around

    4:00 p.m., on April 7, 2000, for an appointment with Respondent.

    
    

16. Ms. Albany greeted Ms. Stokes when she arrived at Respondent's funeral home. Ms. Albany advised Ms. Stokes that Respondent was delayed and that he wanted her to begin filling out the paperwork. Ms. Albany then took Ms. Stokes and

    Ms. Williams to a conference room.

    
    

17. Ms. Albany had a file containing the necessary paperwork. Ms. Albany sat with Ms. Stokes, identifying the documents in the file as she handed them to Ms Stokes.

18. One of the documents in the file was an Authorization to Embalm form. After Ms. Albany explained the purpose of the form, Ms. Stokes signed it without asking any questions.

19. Ms. Albany also presented Ms. Stokes with a Disclosure/Disclaimer form, a death certificate application, an arrangements form, and a newspaper release form. Ms. Stokes filed out these forms and signed each one that required her signature except for the funeral purchase contract. Ms. Albany did not discuss the funeral purchase contract with Ms. Stokes.

20. Ms. Albany stayed with Ms. Stokes and Ms. Williams in the conference room for about 15-20 minutes. After leaving the

    conference room, Ms. Albany noticed that Respondent had arrived at the funeral home.

21. Respondent arrived at the funeral home sometime before 4:40 p.m. Respondent first checked the reception counter where he found the completed burial-transit permit for Ms. Gillis. At that point, he knew that Ms. Gillis's body could be embalmed and that the family could proceed with the funeral service arrangements.

22. Respondent began his meeting with Ms. Stokes and

    
    

    Ms. Williams at approximately 4:40 p.m. During the conference, Respondent reviewed all of the forms with Ms. Stokes, including her signed Authorization to Embalm form.

23. In discussing the funeral arrangements, Ms. Stokes informed Respondent that she definitely wanted a formal visitation for her mother. Respondent knew that the embalming process needed to begin as soon as possible in order for the body to be presentable for formal visitation.

24. The greater weight of the evidence indicates that Respondent, and not Ms. Albany, escorted Ms. Stokes and Ms. Williams to the selection room to view caskets at approximately 5:00 p.m. Respondent left Ms. Stokes and Ms. Williams in the selection room and went next door to the embalming room to speak to Mr. Fleming.

25. Mr. Fleming had just completed the embalming process of Mr. Hopkins. Respondent directed Mr. Fleming to begin embalming Ms. Gillis because her daughter had given permission. Respondent returned to the selection room 30 seconds later.

26. Respondent proceeded with the embalming while

    
    

    Ms. Stokes was in the funeral home. He made this decision based on his knowledge that Dr. Brown would sign the death certificate, thereby releasing the medical examiner's hold on the body. He also had a written authorization from Ms. Stokes to embalm. The majority of Respondent's cases are embalmed before he obtains a signed funeral purchase agreement.

27. Respondent, Ms. Stokes, and Ms. Williams returned to the conference room to discuss the funeral purchase contract, showing the prices for a graveside service and a church service. This discussion lasted another 30 to 45 minutes.

28. Ms. Stokes did not sign the funeral purchase contract, in part, due to her concern about the quoted prices. She advised Respondent that she would have to consult with a relative regarding the costs of a graveside service or a church service.

29. Before she left the funeral home, Ms. Stokes asked Respondent if he had done anything to her mother's body. Respondent replied that he had embalmed Ms. Gillis because by that time, the embalming process was more than half complete.

30. It takes an average of one hour to one and one half hours to embalm a body. For a worst case scenario, it would take approximately three hours to embalm a body. Leonard Hopkins would have taken longer than average to embalm because he had been the subject of an autopsy.

31. Ms. Stokes consulted with relatives upon returning home on the evening of August 7, 2000. The family decided that Respondent's prices were too high.

32. Ms. Stokes contacted Respondent by telephone around 9:00 p.m. She instructed Respondent not to do anything else to her mother's body because she intended to retain the services of another funeral home. Ms. Stokes also wanted to know what she owed Respondent. Respondent replied that he did not have the papers in front of him but that the expenses were approximately

    $850 for transporting, embalming, and paperwork. Respondent did not overtly state or imply that he would not release the body until he was paid.

33. The next morning, Tuesday, August 8, 2000, Ms. Stokes made arrangements with Toston-LaFrans Funeral Home to handle her mother's funeral. Ms. Stokes then went to Respondent's funeral home where Respondent's staff informed her that the expenses were $860.

34. Respondent was not at the funeral home on the morning of August 8, 2000. He was not there when Ms. Stokes returned to

    the funeral home around 1:00 p.m. Ms. Stokes then made arrangements with Toston-LaFrans Funeral Home to have Ms. Gillis's remains removed to their facility and to pay Respondent.

35. In the meantime, Ms. Albany advised Respondent that Ms. Stokes wanted the body moved to Toston-LaFrans Funeral Home. When Respondent could not reach Ms. Stokes by telephone, he contacted Mrs. Walker of Toston-LaFrans Funeral Home, informing her that he needed a signed release prior to the removal of the body. After that telephone call on August 8, 2000, Respondent understood that Ms. Stokes would sign a release at Toston- LaFrans Funeral Home before the body was transported.

36. Sometime before 2:00 p.m., on August 8, 2000, the medical examiner's office confirmed that Dr. Brown would sign Ms. Gillis's death certificate. The medical examiner's office then contacted Respondent's funeral home to let them know that the hold on the body was lifted.

37. On Wednesday, August 9, 2000, around 4:30 or 5:00 p.m., Toston-LaFrans Funeral Home called to advise

    Respondent that Ms. Stokes had signed a release. Respondent informed Toston-LaFrans Funeral Home that the body could be picked up anytime before the office closed at 6:00 p.m., or after that time if need be because Respondent would be working

    late that evening. Ms. Gillis's body was removed to Toston- LaFrans Funeral Home that evening after 6:00 p.m.

38. Respondent paid Mr. Fleming by check on August 12, 2000, for embalming four bodies, including Ms. Gillis, on August 7, 2000.

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

40. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Sections 470.036(1)(p) and 470.036(1)(t), Florida Statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

41. Section 470.0087, Florida Statutes, states as follows in pertinent part:

    1. The practice of funeral directing shall be construed to consist of the following functions, which may be performed only by a licensed funeral director:

       
       

       * * *

       
       

       (b) Planning or arranging, on an at-need basis, the details of a funeral service with the family or friends of the decedent or any other person responsible for such service; setting the time of the serivce; establishing the type of service to be rendered; acquiring the services of the clergy; and obtaining vital information for

       the filing of death certificates and obtaining of burial transit permits.

       
       

42. Section 470.036, Florida Statutes, states as follows in relevant part:

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

       
       

       * * *

       
       

       (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.

       
       

       * * *

       
       

       (t) Embalming a deceased human body without first having obtained written or oral permission from a legally authorized person. . . .

       
       

43. In this case, Respondent clearly had written authorization to embalm Ms. Gillis before the process was initiated. The authorization was not void ab initio because it was executed in Ms. Albany's presence before Respondent arrived for his appointment with Ms. Stokes.

44. Ms. Albany's only function was to assist Respondent by getting Ms. Stokes started on filing out the paperwork. There is no evidence that Ms. Albany answered any questions or provided any other information to Ms. Stokes regarding the details of a funeral service.

45. Respondent went over all the paperwork with Ms. Stokes when he arrived at the meeting. Respondent went on to explain the diffence in the costs of graveside and church services. These costs included the particular casket and other services that Ms. Stokes chose to consider for her mother's funeral.

46. Respondent did not violate Section 470.036(1)(t), Florida Statutes. He was not charged with violating

    Section 470.0087(b), Florida Statutes. Moreover, Respondent did not violate Section 470.0087(b), Florida Statutes, by letting Ms. Albany identify documents as she handed them to Ms. Stokes.

47. Respondent did not violate Section 470.036(1)(p), Florida Statutes, by refusing to promptly release Ms. Gillis's body. He surrendered the body on August 9, 2000, as soon as he had a signed release from Ms. Stokes. He did not tell

    Ms. Stokes that the body would not be released until he was paid $860.

48. With a signed release, Toston LaFrans Funeral Home could have picked up the body on April 8, 2000. The record does not explain why it took Toston LaFrans almost 24 hours to get Ms. Stokes to sign the release, or if she signed the release earlier, why Toston LaFrans Funeral Home did not pick up the body sooner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 20th day of December, 2002.

COPIES FURNISHED:

Charles J. Pellegrini, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302

Sherry Landrum, Executive Director Board of Funeral Directors and Embalmers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 02-002792PL

Orders for Case No: 02-002792PL