IN THE MATTER OF:
CHIEF FINANCIAL OFFICER
JEFF ATWATER
STATE OF FLORIDA
AARON DUNCAN
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CASE NO: 114642-11-FC
ADMINISTRATIVE COMPLAINT
To: AARON DUNCAN
3493 Winchester Road Port Orange, Florida 32129
You, AARON DUNCAN, are hereby notified that the Chief Financial Officer of the State of Florida has caused to be made an investigation of your activities while licensed as a funeral director and embalmer, in this state, as a result of which it is alleged:
GENERAL ALLEGATIONS
In the state of Florida, you, AARON DUNCAN, are licensed as a funeral director and embalmer; license number F045580.
Pursuant to Section 20.121, Florida Statutes, Chapter 497, Florida Statutes, the "Florida Funeral, Cemetery, and Consumer Services Act", and Chapter 69K Florida Administrative Code (hereinafter collectively referred to as "the Act"), the Florida Department of Financial Services, Division of Funeral, Cemetery, and Consumer Services (hereinafter the "Department") is the state agency charged with regulating the operations of funeral directors and embalmers.
Pursuant to the Act, the Department has jurisdiction over your funeral director and embalmer licenses.
Filed July 15, 2011 1:17 PM Division of Administrative Hearings
On April 26, 2011, a probable cause panel of the Division of Funeral, Cemetery and Consumer Services met and found probable cause to charge you, AARON DUNCAN, a licensed funeral director and embalmer, with violations of the Act, alleged in Division investigative report number SR 1-657242016, and as set forth in this Administrative Complaint.
At all times pertinent to the dates and occurrences referred to herein, you, AARON DUNCAN, located at 3493 Winchester Road, Port Orange, Florida 32129, were a licensed funeral director and embalmer.
Section 497.005(34), Florida Statutes, defines "funeral director" as "any person licensed under this chapter to practice funeral directing in this state.
At all times pertinent hereto you, Aaron Duncan, a licensed funeral director and embalmer, were the funeral director responsible for Golden's Funeral Home, Inc., a licensed funeral establishment.
On March 25, 20I 0, the Department conducted an inspection of the funeral establishment of Golden's Funeral Home, Inc.
COUNT ONE
The above General Allegations are hereby realleged and fully incorporated herein by reference.
On April 28, 2009, the Department received a letter from Willie L. Lucas, which stated, ".. .I will be the Funeral Director in Charge at Golden's Funeral Home... " and "This transition will be for an indefinite time effective as of April 28, 2009."
Subsequent to the letter referenced above, the Department has received no further correspondence from you, AARON DUNCAN, indicating that a new Funeral Director in Charge ("FDIC") has been chosen.
During the inspection of the funeral establishment, it was determined that you, AARON DUNCAN, signed as FDIC, all Monthly Reports of Cases Embalmed and Bodies Handled submitted to the Department since at least January 2009 through February 2010. Moreover, your name was located on the front of the building and listed as the FDIC.
Because you signed all Monthly Reports of Cases Embalmed and Bodes Handled and were listed as the FDIC, it is unclear who was acting FDIC during this period. Regardless, it is evident that since you signed reports as FDIC for the ten months following the letter sent by Willie L. Lucas, that letter contained misleading information.
You, AARON DUNCAN, failed to notify the Board regarding a change in Funeral Director in Charge within twenty days.
IT IS THEREFORE CHARGED that you, AARON DUNCAN, have violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute sufficient grounds for discipline, including the suspension or revocation of your license as a funeral director and embalmer:
Section 497.152(4)(g), Florida Statutes, which provides that it is a violation to make or file a report or statement to or with any government entity that the licensee knows or has reason to know to be false; or intentionally or negligently fail to file a report or record required to be filed with any government entity, or willfully impede or obstruct another person to do so, or inducing another person to impede or obstruct such filing.
Section 497.152(1)(a), Florida Statutes, which provides that it is a violation to violate any provision of this chapter or any lawful order of the board or depattment or of the statutory predecessors to the board or depattment.
Rule 69K-21.008, Florida Administrative Code, provides that a funeral establishment shall notify the board in writing within twenty (20) days of any change in a funeral director in charge (FDIC).
Section 497.380(12)(c), Florida Statutes, provides that a change in funeral director in charge of a funeral establishment shall be promptly reported pursuant to procedures established by rule.
Section 497.152(1)(b), Florida Statutes which provides that is a violation to be found committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter.
COUNT TWO
The above General Allegations are hereby realleged and fully incorporated herein by reference.
During the inspection, the examiner was unable to find the license of the FDIC posted inside the establishment.
You, AARON DUNCAN, failed to display the licenses and photograph of the current Funeral Director in Charge in a conspicuous place, visible to the public, ·or have those same licenses available on demand.
IT IS THEREFORE CHARGED that you, AARON DUNCAN, have violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute sufficient grounds for discipline, including the suspension or revocation of your license as a funeral director and embalmer:
Section 497.380(15)(a), Florida Statutes, provides that a funeral establishment and each funeral director and, if applicable, embalmer employed at the establishment must
display their current licenses in a conspicuous place within the establishment in such a manner as to make the licenses visible to the public and to facilitate inspection by the licensing authority.
Section 497.380(15)(b), Florida Statutes, provides that each licensee shall permanently affix a photograph taken of the licensee within the previous 6 years to each displayed license issued to that licensee as a funeral director or embalmer.
Rule 69K-21.005(1 ), Florida Administrative Code, provides that the current establishment license and the license of any funeral director or embalmer employed in the establishment shall be displayed for public inspection, in a conspicuous place inside the establishment in such a manner as to make them visible to patrons of the establishment and facilitate inspection by the Department.
Section 497.152(1)(a), Florida Statutes, which provides that it is a violation to violate 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)(b), Florida Statutes which provides that is a violation to be found committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter.
COUNT THREE
The above General Allegations are hereby realleged and fully incorporated herein by reference.
I 9. During the inspection, the examiner found that at least two bodies were not identified with a bracelet on the ankle or wrist containing the deceased's name.
You, AARON DUNCAN, failed to ensure that the bodies of the deceased were affixed with the proper identification to the wrist or ankle of the deceased upon taking custody of them.
IT IS THEREFORE CHARGED that you, AARON DUNCAN, have violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute sufficient grounds for discipline, including the suspension or revocation of your license as a funeral director and embalmer:
Section 497.171(l)(d), Florida Statutes, provides that any licensee responsible for removal of dead human remains to any establishment, facility, or location shall ensure that the remains are identified by a tag or other means of identification that is affixed to the ankle or wrist of the deceased at the time the remains are removed from the place of death or other location.
Rule, 69K-33.00I, Florida Administrative Code, provides that funeral establishments shall establish a system of identification of human remains received. This system shall be designed to track the identity of the remains from the time of receipt until delivery of the remains to the authorized persons. This is in addition to the requirements for identification of human remains set forth in Section 497.171, F.S.
Section 497.152(l)(a), Florida Statutes, which provides that it is a violation to violate 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)(b), Florida Statutes which provides that is a violation to be found committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter.
COUNTFOUR
The above General Allegations are hereby realleged and fully incorporated herein by reference.
During the inspection, a report was located detailing the dates that medical waste was removed from Golden's Funeral Home, Inc., and the amount of medical waste that was removed from Golden's Funeral Home, Inc. on those dates.
It was determined that the rate of removal of biomedical waste from the establishment was not consistent with the number of embalmings that had been completed at the establishment in order to be in compliance with Florida law.
IT IS THEREFORE CHARGED that you, AARON DUNCAN, have violated or are accountable under the following provisions of the Act and the rules promulgated pursuant thereto which constitute sufficient grounds for discipline, including the suspension or revocation of your license as a funeral director and embalmer:
Rule 69K-21.003(5), Florida Administrative Code, provides that the 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.
Section 497.152(l)(a), Florida Statutes, which provides that it is a violation to violate any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department.
Rule 64E-16.004(1)(a), the Florida Administrative Code, provides that storage of biomedical waste at the generating facility shall not exceed 30 days. The 30 day period shall
commence when the first non-sharps item of biomedical waste is placed into a red bag or sharps container, or when a sharps container containing only sharps is sealed.
Section 497.152(1)(b), Florida Statutes which provides that is a violation to be found committing fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under this chapter.
WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties: revocation or suspension of your license; imposition of an administrative fine not to exceed five thousand dollars ($5,000) for each count or separate offense; issuance of a written reprimand; placement of you on probation; assessment of costs associated with investigation and prosecution; requiring you to make restitution; imposition of any or all penalties delineated within Section 497.153(5), Florida Statutes; and any other relief that the Board is authorized to impose pursuant to the Act.
NOTICE OF RIGHTS
Pursuant to Sections 120.569 and 120.57, Florida Statutes, and Rule 28-106, Florida Administrative Code, you have the right to request a proceeding to contest this action by the Department of Financial Services ("Department"). The proceeding request must be in writing, signed by you, and must be filed with the Department 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 Julie Jones, Agency Clerk, Florida Department of Financial Services, 200 East Gaines Street,
Tallahassee, Florida 32399-0390. 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 NOTICE 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:
The name, address, and telephone number, and facsimile number (if any) of the respondent (for the purpose of requesting a hearing in this matter, you are the "respondent").
The name, address, telephone number, facsimile number of the attorney or qualified representative of the respondent (if any) upon whom service of pleadings and other papers shall be made.
A statement requesting an administrative hearing identifying those material facts that are in dispute. lfthere are none, the petition must so indicate.
A statement of when the respondent received notice of the administrative complaint.
A statement including the file number 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 documents by subpoena.
If a proceeding is requested and there is no dispute of material fact, the provisions of Sections 120.57(2) and 497.153(4)(b), Florida Statutes, apply. You may either submit a written statement and documentary evidence to the Board in lieu of a hearing, or personally attend a hem'ing conducted by the Board at the location of a regularly scheduled Board meeting.
However, if you dispute material facts that are the basis for the Department'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 freeform agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an administrative proceeding 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 you until the response has been received by
the Depmtment.
DATED and SIGNED this /5 y of_0 .,L.l.v\ .p ·
, 201 I.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF PROCEEDING FORM has been furnished by U.S. Certified
Mail, return receipt requested this I S'I!:- day of _
..,J vi N.. ' 2011, to:
AARON DUNCAN
3493 Winchester Road Port Orange, Florida 32129
Florida Depmtment of Financial Services 200 E. Gaines St., 6th Floor
Tallahassee, FL 32399-0390
Phone (850) 413-4230
Fax: (850) 488-0697
Counsel for the Depmtment
