IN THE MATTER OF:

HOLMES FUNERAL DIRECTORS, INC.

                                                                               :!

FILED

SEP ll 2009

i i

· cA.sEiNo 1052s1-09- Fc

ADMINISTRATIVE COMPLAINT

To: HOLMES FUNERAL DIRECTORS, INC./ I - ll 8S­

c/o Christopher M. Chestnut, Esq.

The Chestnut Firm, LLC . 500 East University Avenue, Suite C Gainesville, Florida 3260l

You, HOLMES FUNERAL DIRECTORS, INC., License No. F041651, are hereby notified that the Department of Financial Services ("Department") has conducted an investigation in connection with your license to operate as a Funeral Establishment. Based upon the investigation, it is alleged:

GENERAL ALLEGATIONS

1. The Board of Funeral, Cemetery, and Consumer Services ("Board"), created within the Division of Funeral, Cemetery and Consumer Services ("Division"), and the Department, have jurisdiction ove HOLMES FUNERAL DIRECTORS, INC.'s licensure as a Funeral Establishment and the subject matter of this proceeding, pursuant to the provisions of Section 20.121, and Chapter 497, Florida Statutes, the Florida Funeral, Cemetery, and. Consumer Services Act ("Act").

2. The Board has the authority to determine through probable cause panels whether there is probable cause to believe there is a violation of Chapter 497, Florida Statutes, and whether a proposed administrative prosecution of a licensee shall go forward, as set forth in Sections 497.103(l)(v) and 497.153(3), Florida Statutes.

3. A probable cause panel on August 19, 2009 found probable cause to charge you,

   
   

   
   

   HOLMES FUNERAL DIRECTORS, INC., with violations of Chapter 497, Florida Statutes, and the Department's administrative rules and directed the Department to prosecute based on Division investigations SRl-605916533 and SRl-605918501.

4. At all ·times relevant to the allegations of this Administrative Complaint, you, HOLMES FUNERAL DIRECTORS, INC., were licensed as a Funeral Establishment pursuant to the provisions of Chapter 497, Florida Statutes and the Rules promulgated thereunder.

5. At all times relevant to the allegations of this Administrative Complaint, you, HOLMES FUNERAL DIRECTORS, INC., were operating as a Funeral Establishment at 601 West Johnson Avenue, Haines City, Florida 33844.

6. At all times relevant to the allegations of this Administrative Complaint, Deliria Holmes ("Ms. Holmes"), a licensed funeral director and embalmer (License No. F044909), was the Funeral Director In Charge (uFDIC") of HOLMES FUNERAL DIRECTORS, INC.

7. The Act provides the following:

   
   

   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.

   
   

   Section 497.380(7), Florida Statutes (2008).

   
   

8. An individual designated as the funeral director in charge of a funeral establishment is responsible for making sure that the establishment and all persons employed in the establishment comply with all applicable laws and rules of the Department, as required by Rule 69K-21.007(3), Florida Administrative Code (2008), formerly Rule 61G-21.007(3), Florida Administrative Code (2004).

9. At all times relevant to the allegations of this Administrative Complaint, you,

   
   

   HOLMES FUNERAL DIRECTORS, INC., employed as a funeral director and embalmer Claude Edward Holmes, Jr. ("Mr. Holmes"), License No. F044012.

10. At all times relevant to the allegations of this Administrative Complaint, Mr. Holmes and Ms. Holmes were owners of HOLMES FUNERAL DIRECTORS, INC.

11. At all times relevant to the allegations of this Administrative Complaint, you, HOLMES FUNERAL DIRECTORS, INC., employed as an unlicensed person Richard "Dickie" Alexander ("Mr. Alexander").

12. On or about June 16, 2009, Division Financial Examiners Kurt Schuller ("Mr.

    
    

    Schuller") and Jessica Morse ("Ms. Morse") conducted an inspection ("The June Inspection") of HOLMES FUNERAL DIRECTORS at its location in Haines City, Florida.

    COUNTI

    
    

13. The above General Allegations are hereby realleged and fully incorporated herein by reference.

14. On June 15, 2009, a Polk County maintenance crew working at Oakland Cemetery.in Haines City, Florida discovered a suspicious black bag that was partially buried between two gravesites. A member of the crew reported the finding to law enforcement authorities.

15. Prior to the arrival of law enforcement, a crew member pulled the bag out of the ground and _found inside a red "biohazard" bag, from which a foul odor emanated.

16. The Polk County Sheriff's Office arrived at the scene and found two additional black bags, one of which was a body bag, and two containers of fonnaldehyde. The bags contained information for two deceased people, for whom you, HOLMES FUNERAL DIRECTORS, INC., had provided :funeral services. The remains contained in the bags were unrelated to either of the graves between which the bags were found.

17. The infonnation identified one of the deceased as R.D., who died on June 7, 2009,

    and was buried on June 13, 2009.

    
    

18. Upon further inspection of the bags, law enforcement personnel discovered that they contained human organs, or viscera, which had not been properly preserved and were decomposing.

19. According to records maintained by Holmes Funeral Directors, Inc. and filed with the Department, Mr. Holmes embalmed the body ofR.D. on June 9, 2009.

20. The same day, Polk County detectives met with Mr. Holmes, at HOLMES FUNERAL DIRECTORS, INC., and questioned him about their discovery. Mr. Holmes admitted that he disposed of the viscera from the body of R.D. "last week" because it was already decomposing when the body was received from the medical examiner.

21. Additionally, Mr. Holmes stated that the already-decomposing viscera could not be buried along with the body because placing the viscera in the casket would cause a foul odor to permeate the funeral home.

22. Mr. Holmes admitted to law enforcement authorities that he had previously dumped viscera in the Oakland Cemetery approximately ten t9 fifteen times since 2000.

23. Mr. Holmes refused to assist law enforcement authorities in discovering and identifying the other remains you d placed in Oakland Cemetery.

24. Industry standards provide that viscera, even when already decomposing, can and should be preserved in such a way that they can be returned to the body for final preparation prior to burial. By his own admission, Mr. Holmes was apparently unaware of these standards, as he indicated that he knew of no way to preserve the viscera to be buried with R.D.'s body.

25. Mr. Holmes was arrested on felony charges of Dumping Raw Human Waste for

    Commercial Purposes by the Polk County Sheriff's Office.

26. At the time he committed the acts described in paragraphs 13-24, Mr. Holmes was acting in his official capacity as a funeral director and embalmer on behalf of Holmes Funeral

    
    

    Directors, Inc.

    
    

    IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

    
    

    violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

    1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. (Section

       • 497.152(1)(a), Florida Statutes]

         
         

    2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(1)(b), Florida Statutes]

    3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

    4. Knowingly concealing information relative to violations of this chapter. [Section 497.152(4)(e), Florida Statutes] .

    ( e) Violation of any state law or rule or any municipal or county ordinance or regulation affecting the handling, custody, care, or transportation of dead human bodies. [Section 497.152(8)(a), Florida Statutes]

    1. A dead human body may not be held in any place or in transit over 24 hours after death or pending final disposition unless the body is maintained under refrigeration at a temperature of 40 degrees Fahrenheit or below or is embalmed or otherwise preserved in a manner approved by the licensing authority in accordance with the provisions of this chapter. [Section 497.386(2), Florida Statutes]

    2. The licensing authority shall establish by rule the minimal standards of acceptable

    
    

    and prevailing practices of the handling and storing of dead human bodies, provided that all human remains transported or stored must be completely covered and at all times treated with dignity and respect. [Section 497.386(4), Florida Statutes]

    COUNT II

    
    

27. The above General Allegations are hereby realleged and fully incorporated herein by reference.

28. During the June Inspection, Mr. Schuller and Ms. Morse requested a price list from Ms. Holmes.

29. Ms. Holmes was unable to produce a price list, instead providing a one-page document that listed three service packages.

    IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

    
    

    violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto whi_ch constitute grounds for discipline, including the suspension or_ revocation of your license as a Funeral Establishment:

    1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

    2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(1)(b), Florida Statutes]

    3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section

       497.152(4)(h), Florida Statutes]

       
       

    4. Failing to furnish, for retention, to anyone who inquires in person about burial rights,

       .

       burial or funeral merchandise, or burial or funeral services, before any discussion of

       
       

       selection, a printed or typewritten list specifying the range of retail prices for such rights, merchandise, or services. At a minimum, the list shall itemize the highest and lowest priced product and service regularly offered and shall include the name, address, and telephone number of the licensee and statements that the customer may choose only the items the customer desires, that the customer will be charged for only those items selected, and that there may be other charges for other items or other services. [Section 497.152(12)(b), Florida Statutes]

    5. Failure by any funeral ·director to fully disclose all of her or his available services and merchandise prior to the selection of a casket offered by a licensee. The full disclosure required shall identify what is included in the funeral or direct disposition and the prices of all services and merchandise provided by the licensee or registrant. [Section 497.152(12)(e), Florida Statutes]

    COUNT III

    
    

30. The above General Allegations are hereby realleged and fully incorporated herein by reference.

31. _ During the June Inspection, Mr. Schuller and Ms. Morse examined documents prepared and maintained by HOLMES FUNERAL DIRECTORS, INC. for funeral services.

32. Specifically, Mr. Schuller and Ms. Morse examined the contract for services for J.M., Date of Death February 12, 2008.

33. The contract contained in J.M.'s file did not contain the name of the decedent or list

    any charges associated with his services, transport, or burial.

    
    

34. Furthermore, the contract did not contain the signature of the customer.

    
    

    IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

    
    

    violated or are accountable under the following provisions of the Act and the rules promulgated

    
    

    pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

    1. Violating any provision of this chapter or any lawful ord r of the board or department or of the statutory predecessors to the board or department. [Section 497.152(l)(a), Florida Statutes]

    2. Committing fraud, deceit, negligence, incompetency; or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(1)(b), Florida · Statutes]

    3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section

       
       

       • 497.152(4)(h), Florida Statutes]

       
       

    4. Failing to furnish, for retention, to each purchaser of burial rights, burial or funeral merchandise, or burial or funeral services a written agreement, the form of which has been previously approved if and as required by this chapter, that lists in detail the items and services purchased together with the prices for the items and services purchased; the name, address and telephone number of the licensee; the signatures of the customer and the licensee or her or his representative; and the date signed. [Section 497.152(1 l)(a), Florida Statutes]

    COUNT IV

    
    

35. The above General Allegations are hereby realleged and fully incorporated herein by reference.

· 36. During the June Inspection, Mr. Schuller and Ms. Morse examined documents prepared and maintained by HOLMES FUNERAL DIRECTORS, INC. for funeral services.

1. Specifically, Mr. Schuller and Ms. Morse examined the contracts for services for C.C., dated March 30, 2009, and H.P., dated April 22, 2009.

   
   

2. Neither contract disclosed specific costs for specific services. Rather, the line items for services and products were stricken through and replaced with the words, "Economy Package.''

   IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

   
   

   violated or are accountable under the following provisions of the. Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

   1. Violating any provision of this chapter or any lawful order of the board or

      1

      department or of the statutory predecessors to the board or department. [Section

      
      

      497.152(l)(a), Florida Statutes]

      
      

   2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(l)(b), Florida Statutes]

   3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

   Failing to furnish, for retention, to each purchaser of burial rights, burial or funeral merchandise, or burial or funeral services a written agreement, the form of which has been previously approved if and as required by this chapter, that lists in detail the items and services purchased together with the prices for the items and services purchased; the name, address, and telephone number of the licensee; the signatures of the customer and the licensee or her or his representative; and the date signed. [Section 497.152(11)(a), Florida Statutes]

   COUNTV

   
   

3. The above General Allegations are hereby realleged and fully incorporated herein by reference.

   
   

4. During the June Inspection, Mr. Schuller and Ms. Morse requested documentation regarding HOLMES FUNERAL DIRECTORS, INC.'s biomedical waste disposal procedures.

5. Ms. Holmes provided manifests and receipts for service for the months of April and May of2009 from Biotech Medical Waste Transporters, Inc. ("Biotech").

6. The manifests and receipts for service show only a single pick-up of waste weighing

   
   

   2.5 pounds that occurred on May 26, 2009. No waste pick-up occurred-in April 2009.

   
   

7. Mr. Alexander, an unlicensed employee of HOLMES FUNERAL DIRECTORS INC., signed the receipts on behalf of HOLMES FUNERAL DIRECTORS, INC.

8. Upon contacting the Polk County Health Department, Mr. Schuller discovered that HOLMES FUNERAL DIRECTORS, INC. does not have a biomedical waste.permit.

   IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

   violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

   1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(I)(a), Florida Statutes]

   2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(l)(b), Florida Statutes]

   3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

   4. Preparation room shall meet the requirements of the Department of Health Chapter 64E-16, F.A.C., which prescribes minimum sanitary practices relating to the management of

   
   

   biomedical waste, including segregation, handling, labeling, storage, transport and treatment. Room shall be maintained in a clean and sanitary manner. [Rule 69K-21.003(5), Florida Administrative Code]

   COUNT VI

   
   

9. The above General Allegations are hereby realleged and fully incorporated herein by reference.

   1

10. Ms. Holmes told Mr. Schuller and Ms. Morse that Mr. Alexander, an unlicensed employee, performs removals for HOLMES FUNERAL DIRECTORS, INC.

    47; However, Ms. Holmes was unable to provide proof of health and safety training for Mr. Alexander.

    IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

    
    

    violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

    1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(l)(a), Florida Statutes]

    2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(l)(b), Florida Statutes]

    3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

    4. All individuals not licensed under this chapter who intend to be employed as operational personnel affiliated with a direct disposal esta_blishment, cinerator facility,

       
       

       removal service, refrigeration facility, or centralized embalming facility, as well as all nonlicensed individuals who intend to be involved in the removal or transportation of human remains on behalf of a funeral establishment, direct disposal establishment, or cinerator facility shall complete one course approved by the licensing authority on communicable diseases, within 10 days after the·date that they begin functioning as operational personnel on behalf of any entity that is regulated by this chapter. [Section 497.162, Florida Statutes]

    5. The term "operational personnel" for purposes of determining those employees, including leased employees ·not licensed by the Department, required to complete the course mandated by Section 497.162, Florida Statutes, are those individuals who come in direct contact with or remove or transport dead human remains, or those individuals who come in direct contact with blood or other body fluids. [Rule 69K-15.005, Florida Administrative Code.

    COUNT VII

    
    

    1. The above General Allegations are hereby realleged and fully incorporated herein by

       
       

       reference.

       
       

    2. During the course of the investigation, Mr. Schuller obtained a complaint filed in September . 2008 against HOLMES FUNERAL DIRECTORS, INC. from the Better Business Bureau.

    3. During the June Inspection, Mr. Schuller asked Ms. Holmes to provide him with a complaint log for his review.

    4. Ms. Holmes was unable to provide a complaint log.

       
       

       IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

       
       

       violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of

       I

       I

       
       

       
       

       your license as a Funeral Establishment:

       
       

       1. Failing to adopt and implement standards for the proper investigation and resolution of claims and complaints received by a licensee relating to the licensee's activities regulated by this chapter. [Section 497.152(14)(a), Florida Statutes].

       2. Licensees shall cause to be maintained on a continuing basis a log of all written complaints received by the licensee regarding any aspect of the licensee's operations. The

       log shall show the complainant's name, the date the complaint was received, and the complainant's address and phone number if shown in the complaint. [Section 497.151(2),

       Florida StatutesJ

       ( c) Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

       (d) Vi9lating any provision of this chapter or any lawful order of the board or· department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

       COUNT VIII

       
       

    5. The above General Allegations are hereby realleged and fully incorporated herein by reference.

    6. 9n September 9, 2008, the Department notified you, HOLMES FUNERAL

       DIRECTORS, INC., that a fee in the amount of $555.00 was due to renew your Funeral

       
       

       · Establishment license.

       
       

    7. You, HOLMES FUNERAL DIRECTORS, INC., failed to timely pay the fee.

       
       

    8. On January 9, 2009, the Department notified you, HOLMES FUNERAL DIRECTORS, INC., that your license expired due to your failure to pay the fee, and that the establishment was not to be engaging in any activity for which licensure was required.

       
       

    9. Despite this notice, you, HOLMES FUNERAL DIRECTORS, INC., continued to operate and engage in.activities for which licensure was required, including, but not limited to, the handling and embalming of bodies.

    10. On February 19, 2009, the Department received payment of the renewal fee in full and a letter of explanation from you, HOLMES FUNERAL DIRECTORS, INC.

        IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

        
        

        violated or are accountable under the following provisions of the Act .and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

        1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

        2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(1)(b), Florida Statutes]

        3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.152(4)(h), Florida Statutes]

        4. No person or entity shall engage in any activity for which a license is required under this chapter, without holding such Iicensure in good standing. [Section 497.157(1), Florida Statutes]

        COUNT IX

        
        

    11. The above General Allegations are hereby realleged and fully incorporated herein by reference. ·

    12. During the course of the June Inspection, Mr. Schuller examined eight (8) files kept

        
        

        and maintained by HOLMES FUNERAL DIRECTORS, INC., each one documenting a body for

        which HOLMES FUNERAL DIRECTORS, INC. provided services.

        
        

    13. Of those eight (8) files, seven (7) contained no written authorization allowing HOLMES FUNERAL DIRECTORS, INC. to take possession of the body, and no such authorization was received prior to final disposition of each body.

        IT IS TI-IEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

        violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Estabiishment:

        1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

        2. Committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(1)(b), Florida Statutes]

        3. Failing to perform any statutory or legal obligation placed upon a licensee. [Section 497.l52(4)(h), Florida Statutes]

        4. T ng possession of a dead human body without first having obtained written or oral permission from a legally authorized person. If oral permission is granted, the licensee shall obtain written permission within a reasonable time as established by rule. [Section 497.1S2(8)(d), Florida Statutes]

        5. A "reasonable time" for purposes of determining when a licensee or registrant must obtain written permission for the taking of possession of a dead human body or for embalming after oral permission has been granted shall be prior to the final disposition of

        
        

        the dead human body. [Rule 69K-15.005, Florida Administrative Code]

        
        

        CQUNTX

        
        

    14. The above General Allegations are hereby realleged and fully incorporated herein by reference.

    15. During the course of the June Inspection, Mr. Schuller examined eight (8) files kept and maintained by HOLMES FUNERAL DIRECTORS, INC., each one documenting a body for which HOLMES FUNERAL DIRECTORS, INC. provided embalming services.

    16. Of those eight (8) files, none contained written authorization allowing HOLMES FUNERAL DIRECTORS, INC to perform embalmings.

IT IS THEREFORE CHARGED that you, HOLMES FUNERAL DIRECTORS, INC., have

violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute grounds for discipline, including the suspension or revocation of your license as a Funeral Establishment:

1. Violating any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. [Section 497.152(1)(a), Florida Statutes]

2. Committing fraad, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter. [Section 497.152(l)(b), Florida Statutes]

3. Failing to perform any statutory or legal obligation placed upon a licen ee. [Section 497.152(4)(h), Florida Statutes]

4. Embalming human remains without first having obtained written or oral permission

   from _a legally authorized person; however, washing and other public health procedures such as closing of the orifices by placing cotton soaked in a disinfectant in such orifices until

   
   

   authorization to embalm is received, shall not be precluded. If oral permission is granted, the licensee shall obtain written pennission within a reasonable time as established by board rule. [Section 497.152(8)(d), Florida Statutes]

5. A "reasonable tinie" for purposes of determining when a licensee or registrant must obtain written pennission for the taking of possession of a dead human body or for embalming after oral pennission has been granted shall be prior to the final disposition of the dead human body. [Rule 69K-15.005, Florida Administrative Code]

WHEREFORE, the Petitioner respectfully request that the Board of Funeral, Cemetery and Consumer Services to enter an order imposing one or more of the following penalties: revocation or suspension of HOLMES FUNERAL DIRECTORS, INC.'s funeral establishment license, restriction of practice, imposition of an administrative fme, issuance of a reprimand, placement of HOLMES FUNERAL DIRECTORS, INC. on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate under the provisions of subsection 497.153(5), Florida Statutes, and Fla. Admin. Code R. 6108-30 as re-enacted by Fla. Admin. Code R 69K-30.

NOTICE OF RIGHTS

You have the right to request a proceeding to contest this action by the Florida Department

.,

of Financial Services, Board of Funeral, Cemetery and Consumer Services (uBoard") pursuant to

Sections 120.569 and 120.57, Florida Statutes, and Rule 28-106, Florida Administrative Code. The proceeding request . must be in writing, signed by you, and must be filed with the Florida Department of Financial Services ("D partment'') within twenty-one (21) days of your receipt of this notice. Completion of the attached Election of Proceeding form and/or a petition for administrative hearing will suffice as a written request. The request must be filed with Tracey Beal, Agency Clerk, at the Florida Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0333. Your written response must be received by the Department no later than 5:00

p.m. on the twenty-first day after your receipt of this notice. Mailing the response on the twenty­ first day will not preserve your right to a hearing.

YOUR FAILURE TO RESPOND IN WRITING WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS ADMINISTRATIVE COMPLAINT WILL CONSTITUTE A WAIYER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF SUSPENSION OR REVOCATION WILL BE ENTERED AGAINST YOU.

If you request a proceeding, you must provide information that complies with the requirements of Rule 28-106.2015, Florida Administrative Code. As noted_ above, completion of the attached Election of Proceeding form conforms to these requirements. Specifically, your response must contain:

1. The name, address, and telephone number, and facsimile number (if any) of Respondent (for the purpose of requesting a hearing in this matter, you are the "Respondent").

2. The name, address, telephone number, facsimile nwnber of the attorney or qualified representative of HOLMES FUNERAL DIRECTORS, INC. (if any) upon whom service of pleadings and other papers shall be made.

3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate.

4. A statement of when the Respondent received notice of the administrative complaint. ·

5. A statement including the file nwnber to the administrative complaint.

If a hearing of any type is requested, you have the right to be represented by counsel or other qualified representative at your expense, to present evidence and argument, to call and cross­ examine witnesses, and to compel the attendance of witnesses and the production of docwnents by subpoena.

If a proceeding is requested and there is no dispute of material fact, the provisions of Section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written evidence in opposition to the action taken by the Board or a written statement challenging the grounds upon

which the Board has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in Tallahassee, Florida, or by telephonic conference call upon your request.

However, if you dispute material facts which are the basis for the Board's action, you must request an adversarial proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. These proceedings are held before a State Administrative Law Judge of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request that the hearing be conducted in Tallahassee, Florida.

Failure to follow the procedure outlined with regard to your response. to this notice may result in the request being denied. All prior oral communication or correspondence in this matter shall be considered freefonn agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an administrative proceedi1;1g received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above.

Mediation of this matter pursuant to Section 120.573, Florida Statutes, is not available. No Department attorney will discuss this matter with u i1 the response has been received by the

Department.

;

Deputy Chief Financial Officer

DATED and SIGNED this // day o ,l,,,----J-A ,£.1.J./. =-- 2009.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoi AD LAINT has been furnished by U.S. Certified Mail this day o ....,.:...:·111,C.1 -,...p.,,a,.,e. '-'- ..J 2009, to: Christopher M. Chestnut, Esq., The Chestnut Firni, LLC, 500 e, Suite C, Gainesville, Florida 32601.

ft-

-/,IL.,,.21(. }            

Robyn Blank Jackson .,

Assistant General Counsel Fla. Bar. No.: 0028832

Florida Department of Financial Services 200 E. Gaines St.

Tallahassee, FL 32399-4247

Phone (850) 413-4269

Fax: (850) 487-4907

Counsel for the Department

STATE OF.FLORIDA

DEPARTMENT OF FINANCIAL SERVICES

DMSION OF LEGAL SERVICES

HOLMES FUNERAL DIRECTORS, INC.

/ CASE NO. 105281-09- FC.

ELECTION OF PROCEEDING FORM

I have received and have read the attached Administrative Complaint. I have also read the Notice of Rights contained therein, and I understand my options.. I am requesting disposition of this matter as indicated below. (CHOOSE ONE)

1. [ ] I do not dispute any of the Department's factual allegations and I 9QJlQ1 desire a hearing. I

   understand that by waiving my right to a hearing, the Department's denial shall be final.

2. I go not dispute any of the Department's factual allegations and I hereby elect a proceeding to be conducted in accordance with section 120.57(2), Florida Statutes. I have attached to this election form the information required by Rule 28-106, Florida Administrative Code, as specified in subparagraphs (a) through (g) of the Notice of Rights. The specific type of proceeding I desire is to (CHOOSE ONE):

   [ } Submit a written statement and documentary evidence in lieu of a hearing; or

   
   

   [ ] Personally attend a hearing conducted by a department hearing officer in Tallahassee; or

   [ ] Attend that same hearing by way of a telephone conference call.

   
   

3. [ ] I do dispute one or more of the Department's factual allegations. I hereby request a hearing pursuant to section 120.57(1 ), Florida Statutes, to be held before the Division of Administrative Hearings. I have attached to this election form the infonnation required by Rule 28-106, Florida Administrative Code, as specified in subparagraphs (a) through (g) of the Notice of Rights. Specifically, I have identified the disputed issues of material fact.

TO PRESERVE YOUR RIGHT TO A HEARING, YOU MUST FILE YOUR RESPONSE WITH THE DEPARTMENT OF FINANCIAL SERVICES WITIIlN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE NOTICE. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER TI-IA.'N. ' 5:00 P.M. ON THE TWENTY FIRST DAY AFTER YOUR RECEIPT OF THE NOTICE.

The address for filing is: Tracey Beal, Agency Clerk, Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390.

Signature

Date:                                                      

Print Name

Address:                                                

Phone No.:.                          Fax No.:                      _

Docket for Case No: 11-001185