FILED

SEP 21 2012

CHIEF FINANCIAL OFFICER

JEFF ATWATER 1

STATE OF FLORIDA Docketed by_ _-;;

IN THE MATIER OF:

TONY TANNER FUNERAL SERVICES, INC. FO54862

CASE NO.: 128096-12-FC

ADMINISTRATIVE COMPLAINT

TO: TONY TANNER FUNERAL SERVICES, INC.

127 NW 20TH Street Ocala, FL 34475

10195 HY 27

Ocala, FL 34482

TONY TANNER FUNERAL SERVICES, INC. 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 F054862 to operate as a funeral director in charge (FDIC). 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 has jurisdiction of your 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 (hereinafter "The Act").

   
   

   Filed January 3, 2013 10:36 AM Division of Administrative Hearings

   
   

2. The Board has the authority to determine through probable cause panels whether

   
   

   ·· ......Jherejs probable...raus.e.. to heliev:e....there is...lLYiolation of Chapter...A.21, Florida Statutes.,. and

   
   

   whether a proposed 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 met on September 17, 2012 and found probable cause to charge TONY TANNER FUNERAL SERVICES, INC. with violations of Chapter 497, Florida Statutes, and directed the Department to prosecute.

4. At all times relevant to the allegations of this Administrative Complaint, TONY TANNER FUNERAL SERVICES, INC. was licensed by the State of Florida to conduct business as a funeral establishment, pursuant to the provisions of the Act. TONY TANNER FUNERAL SERVICES' license number is F043753. At the present time, TONY TANNER FUNERAL SERVICES' licenses to conduct business as a funeral establishment in this state pursuant to the provisions of the Act have been suspended, pursuant to Emergency Order entered by the Department on August 29, 2012.

5. Funeral establishments 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.

   
   

                                                     CQUNTON                                                      

   
   

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

   
   

   by reference·.

   
   

9. TONY TANNER FUNERAL SERVICES, INC. is a funeral establishment licensed under Chapter 497, Florida Statutes, license number F054862, located at 127 NW 20th Street, in Ocala, Florida. TONY TANNER FUNERAL SERVICES, INC. was first licensed as a funeral establishment in the state of Florida on or about April 10, 2009. At all times pertinent hereto, TONY TANNER FUNERAL SERVICES, INC. was licensed as a funeral establishment.

10. Jesse Lee Burns Jr. (hereinafter "Jesse Burns") is a funeral director and embalmer licensed under Chapter 497, holding license number FO54862 At all times material hereto, Jesse Burns was the funeral director-in-charge of TONY TANNER FUNERAL SERVICES, INC., within the meaning of Section 497.380(7), Florida Statutes.

11. On August 6, 2012, at approximately 2:30 p.m., Investigator Tina Williams, a field investigator with the Division of Funeral, Cemetery and Consumer Services, Department of Financial Services, together with Alex Peacock of the Florida Depaiiment of Health, inspected the premises of TONY TANNER FUNERAL SERVICES, INC. Almost immediately, a body bag was observed in the preparation room against the left wall. The body bag was zipped closed. Investigator Williains observed numerous flies and other insects on the body bag and flying in the immediate vicinity of the body bag. She also sensed a strong smell of decomposition that got stronger as she approached the body bag.

12. Investigator Williams attempted to unzip the body bag, but was unable to because

    
    

    it was stuck. With the help of Alex Peacock, she unzipped the body bag. Inside the body bag

    
    

        was a maggot-encrusted human body. There was a wrist identification band on the body

    
    

        -  -identifyingthe.chorlyas.the_remainsc0f one''l S.'' --                                                                       

    
    

13. Investigator Williams took photographs of the body, which contained maggots in

    
    

    great numbers. After taking the photos, and while still at the funeral establishment, Investigator

    -I

    Williams contacted the Ocala police department. The police department arrived at the funeral establishment at approximately 3:30 p.m. that same day. The police examined the premises, took photos, and then advised the body could be released to another funeral home.

14. Investigator Williams contacted the family of the deceased J. S., and advised them that the body of J. S. was at the premises of TONY TANNER FUNERAL SERVICES, INC. and needed to be removed. Subsequently, the family notified Investigator Williams that they had made arrangements with another funeral home to pick up the body. At approximately 5:30 p.m., the staff from the new funeral home arrived and removed the body to refrigerated storage.

15. Mr. Wayne Paulk, TONY TANNER FUNERAL SERVICES, INC.'s landlord, had accompanied Investigator Williams on her inspection. Mr. Paulk commented to Ms. Williams at that time that he had been previously aware that there was a deceased body being kept on the premises and had requested of Jesse Burns and/or Tony Tanner on at least six occasions over a two month period that the body be removed. Mr. Paulk further represented that Tony Tanner indicated unwillingness to remove the body because his business had not been paid for requested services regarding the body.

16. TONY TANNER FUNERAL SERVICES, INC. had previously filed the Bodies Handled Reports, required under Section 497.382, Florida Statutes, with the Division for the month of June 2012 (hereinafter the "Report"). The Report is signed twice by Jesse Burns, once as a funeral director and embalmer, and again as funeral director in charge of Tony Tanner

    
    

    Funeral Services, Inc. That Report shows receipt by TONY TANNER FUNERAL SERVICES,

    
    

    ··· ·· INCLoLthe remains of lS. oJL6-15•2012, with the date of death shown as 6-14-2012. -Further, the Report indicates that the remains of J.S. were purportedly embalmed by Jesse Burns.

17. Funeral directors, embalmers, and funeral establishments licensed by this state have an absolute duty to treat all dead bodies with care, dignity and respect. Moreover, bodies must be prepared and maintained in a manner that does not pose a health risk for the public. This duty is absolute and is not contingent on a promise or receipt of payment for services.

IT IS THEREFORE CHARGED that you, TONY TANNER FUNERAL SERVICES,

INC., have violated or are accountable under the following provisions of the Act which constitute grounds for discipline:

1. Section 497.152(l)(a), Florida Statutes, which provides that violating any provision of the Act constitutes a disciplinary offense;

2. Section 497.152(l)(b), Florida Statutes, which provides that committing fraud, deceit, negligence, incompetency or misconduct in the practice of any of the activities regulated under this chapter is a disciplinable offense;

3. Section 497.386(2), Florida Statutes, which provides that a dead human body may not be held in any place or in transit for 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.

   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 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,-reguiring-lic;ense<l- 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 DFS Agency Clerk, Julie Jones, 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

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   1. 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").

   2. 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.

   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 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 followthe j:lfocedufeoutlinea with regard to your response to this notice may.

===;r;;;e:;:su;;:cli;:t---m+;;·the,re t being dented. All prior oral cmmnunh::ation.rr 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=Departmentattorney will'discuss.thbrnmtter..with oti=until=the=respurrse=has=b·een=rec·ei:ved=by=.._·    _ the Department,

DATED and SIGNED this 21s+ day of '.:=efl bef ,2012,

J. p ·,

Deputy Chief of Financial Services

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint has been furnishe by Certified)};iail to: TONY TANNER FUNERAL SERVICES, INC. at

this 2.'j i- day of '::) ep¼mber , 2012.

Jam s A Bossmt, Assistant General unse Flo ida Depmtment of Financial Services

1vision of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

(850) 413-4124

STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES

D1¥1SIONORLEGAL-SER¥1CES--------

IN THE MATTER OF:

CASE NO.: 128096-12-FC

TONY TANNER FUNERAL SERVICES

FO54862

                                                                                 !

ELECTION OF PROCEEDING

I have received and have read the Administrative Complaint filed by the Florida Depatiment of Financial Services

)

( 11Department11 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)

I. [ ] 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 liccnse(s) as may be appropriate.

2, I 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):

[ ] 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(!), 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

Date:                                                                                        

Date Administrative

Complaint Received:                           _

If you are represented by an attorney or qualified representative, please attach to this election form his or her name, address, telephone and fax numbers

Print Name

Address:                                                                           

Phone No.:                                             Fax No.:                                                                               

Docket for Case No: 13-000004