oy ) FILED CHIEF FINANCIAL OFFICER MAR 1 8 20 if JEFF ATWATER. STATE OF FLORIDA. my Docketed by is AA. IN THE MATTER OF: JESSE BURNS CASE NO.: 111261-10-FC FO 43753 / ADMINISTRATIVE COMPLAINT TO: JESSE BURNS 10846 SW 38™ Avenue Ocala, Florida 34476 JESSE BURNS is hereby notified that the Department of Financial Services Chief Financial Officer of the State of Florida has directed an investigation in connection with license number F043753 to operate as a Funeral Director and Embalmer. Based upon the investigation, it is alleged: GENERAL ALLEGATIONS 1, The Board of Funeral, Cemetery and Consumer Services (hereinafter “the Board”) created within the Department of Financial Services, and the Department of Financial Services have jurisdiction of your licensure as a Funeral Director/Embalmer 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 (hereinafter “The Act”). 2. The Board has the authority to determine through probable cause panels whether there is ptobable cause to believe there is a violation of Chapter 497, Florida Statutes, and whether a proposed Filed January 5, 2012 2:58 PM Division of Administrative Hearings ) 2 administrative prosecution of a licensee shall go forward, as set forth in Section 497.103(1)(v) and 497.153(3), Florida Statutes. 3. A probable cause panel found probable cause to charge JESSE BURNS with violations of Chapter 497, Florida Statutes, and the Department’s administrative rules on February 23, 2011, and directed the Department to prosecute. . 4. At all times relevant to the allegations of this Administrative Complaint, JESSE . BURNS was licensed by the State of Florida to conduct business as a funeral director and an embalmer, pursuant to the provisions of the Act. JESSE BURNS? license number is F043753. - 5, Funeral directors and embalmers are governed by the Act and certain administrative rules contained in the Chapter 69, Florida Administrative Code. 6. Pursuant to Rule 69K-21.007, Florida Administrative Code, each full time funeral director in charge shall be responsible for only one funeral establishment and shall also be responsible for making sure the funeral establishment and all persons employed in the establishment comply with all applicable laws and rules of the Board. 7. Pursuant to Section 497.153(7), Florida Statutes, the acts and omissions of any person employed by or under contract to the licensee shall be treated as the acts and omissions of the licensee. 8. . At all times relevant to the allegations of this Administrative Complaint, JESSE BURNS was the full time funeral director in charge of Cunningham’s Funeral Home (“Cunningham’s”), a licensed funeral home establishment located in Ocala, Florida. 9. On or about July 11, 2008, an inspection of Cunningham’s premises was performed by the Department during normal business hours, pursuant to Section 497.380, Florida Statutes. The investigation included an inspection of Cunningham’s physical premises. COUNT ONE 10. The above General Allegations are hereby realleged and fully incorporated herein by reference. 11. At the time of the investigation, Cunningham’s did not have a funeral director-in-charge (FDIC) at the establishment. JESSE BURNS was not present at the funeral establishment and was not available during the normal business hours. IT IS THEREFORE CHARGED that JESSE BURNS has violated or is accountable under the following provisions of the Act which constitute grounds for discipline, including the suspension or revocation of JESSE BURNS’ license to practice as a Funeral Director in Charge: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense 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. (b) Section 497.380(7), Florida Statutes, which provides that 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 the establishment. COUNT TWO 12, The above General Allegations are hereby realleged and fully incorporated herein by reference. 13. _At the time of the investigation, Cunningham’s preparation room and floors were dirty, unsanitary, and not properly maintained. IT IS THEREFORE CHARGED that JESSE BURNS has violated or is accountable under the following provisions of the Act which constitute grounds for discipline, including the suspension or revocation of JESSE BURNS’ license to practice as a Funeral Director in Charge: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense 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. (b) Rule 69K-21.003(5), Florida Administrative Code, which provides that the preparation room shall meet the requirements of the Department of Health Chapter 64E-16, Florida Administrative Code, which prescribes minimum sanitary practices relating to the management of biomedical waste, including segregation, handling, labeling, storage, transport and tréatment. The preparation room shall be maintained in a clean and sanitary manner. COUNT THREE 14. The above General Allegations are hereby realleged and fully incorporated herein by reference. 15. At the time of the investigation, Cunningham’s waste receptacles were dirty, unsanitary, and not properly maintained. IT IS THEREFORE CHARGED that JESSE BURNS has violated or is accountable under the following provisions of the Act which constitute grounds for discipline, including the suspension or revocation of JESSE BURNS’ license to practice as a Funeral Director in Charge: (a) Section 497.152(1)(a), Florida Statutes, which provides that it is a disciplinable offense 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. d ) (b) Rule 69K-21.003(5), Florida Administrative Code which provides that the preparation room shall meet the requirements of the Department of Health Chapter 64E-16, Florida Administrative Code, which prescribes minimum sanitary practices relating to the management of biomedical waste, including segregation, handling, labeling, storage, transport and treatment. The preparation room shall be maintained in a clean and sanitary manner. COUNT FOUR 16. | The above General Allegations are hereby realleged and fully incorporated herein by reference. 17. _ At the time of the investigation, Cunningham lacked both a refrigeration room for the storage of dead human bodies and written arrangements for the refrigeration and storage of dead human bodies. IT IS THEREFORE CHARGED that JESSE BURNS has violated or is accountable under the following provisions of the Act which constitute grounds for discipline, including the suspension or revocation of JESSE BURNS’ license to practice as a funeral director in charge: (a) Section 497,152(1)(a), Florida Statutes, which provides that it is a disciplinable offense 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. (b) Rule 69K-21.003(1), Florida Administrative Code which provides that there shall be a refrigeration room for the storage of dead human bodies, or written arrangements for the refrigeration and storage of dead human bodies. WHEREFORE, the Department respectfully requests that the Board enter an Order imposing one of more of the following penalties: revocation or suspension of licensee’s license; imposition of an yp ) administrative fine not to exceed five thousand dollars ($5,000) for each count or separate offense; issuance of a written reprimand; placement of licensee on probation; assessment of costs associated with investigation and prosecution; requiring licensee 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 Chapter 497, Florida Statutes, and the rules promulgated thereunder. 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 ("Board") 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 (“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 the Julie Jones, DFS Agency Clerk, at the Florida Department of Financial.Services, 612 Larson Building, 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 WAIVER 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: (a) 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"). (b) ‘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, . , - (c) A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. (d) A statement of when the respondent received notice of the administrative complaint. (e) A statement including the file number of 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 section 120.57(2), Florida Statutes, apply. 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 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 Department. day of _Moxrch 2011. d) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint has been furnished by Certified Mail to: JESSE BURNS at 10846 SW 38" Avenue, Ocala, Florida 34476 this day of Maren, 2011. ames A. Bossart, Assistant General Co Fjorida Department of Financial Services ivision of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES IN THE MATTER OF: CASE NO.: 111261-10-FC JESSE BURNS ; FO 43753 / ELECTION OF PROCEEDING I have received and have read the Administrative Complaint filed by the Florida Department of Financial Services ("Department") against me, including the Notice of Rights contained therein, and I understand my options. I am requesting disposition of this matter as indicated below. (CHOOSE ONE) 1(] 3.0] I do not dispute any of the Department’s factual allegations and I do not desire'a hearing. I understand that by waiving my right to a hearing, the Board may enter a final order that adopts the Administrative Complaint and imposes the sanctions sought, including suspending or revoking my license(s) as may be appropriate. T do 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, In this regard, I desire to (CHOOSE ONE): a 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. 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 information required by Rule 28-106.2015, Florida Administrative Code, as specified in subparagraph (c) 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 WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M. ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. The address for filing is: Julie Jones, DFS Agency Clerk, Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. Signature Print Name Date: Address: Date Administrative Complaint Received: If you are represented by an attorney or qualified Phone No.: representative, please attach to this election form his or her name, address, telephone and fax numbers Fax No.: 10

Docket for Case No: 12-000062PL