FILED “STEFF ATWATER MAR 11 2013 STATE OF FLORIDA Docketed by IN THE MATTER OF: _- MITCHELL & MITCHELL MORTUARY ING. -- CASE .NO.-129484-12-FC.- / ADMINISTRATIVE COMPLAINT To: MITCHELL & MITCHELL MORTUARY INC. 1327 Douglas Street Sanford, Florida 32771 MITCHELL & MITCHELL MORTUARY, INC., is hereby notified that the Chief Financial Officer of the State of Florida has caused an investigation to be made of its activities in the death care industry while licensed as a Funeral Establishment (26-00), in this State, as a result of which it is alleged: GENERAL ALLEGATIONS 1. MITCHELL & MITCHELL MORTUARY INC. (hereinafter referred to as either “MITCHELL & MITCHELL” or “Respondent”), is a licensed Funeral Establishment (26-00), license number F058023, in this state. 2. Pursuant to Section 20.121(2)(n), 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 death care industry, including the activities of funeral establishments in the State of Florida. 3. Pursuant to the Act, the Department has jurisdiction over the licensure and the eligibility for licensure of the funeral establishment of MITCHELL & MITCHELL in this state, and the subject matter in this proceeding. 4. On February 19, 2013, a probable cause panel of the Division of Funeral, __..._Cemetery and Consumer Services met and found probable cause to charge MITCHELL & | MITCHELL with violations of the Act, as alleged in the Division’s investigative file, maintained within the Division’s records as ATN-16963, and as set forth in this Administrative Complaint. 5. At all times pertinent to the dates and occurrences referred to herein MITCHELL & MITCHELL, located at 1327 Douglas Street, Sanford, Florida, was a licensed funeral establishment in this state. 6. Section 497.005(35), Florida Statutes, defines “funeral establishment” as “a facility licensed under this chapter where a funeral director or embalmer practices funeral directing or embalming.” 7. Section 497.005(34), Florida Statutes, defines “funeral director” as “a person licensed under this chapter to practice funeral directing in this state.” 8. Section 497.005(31), Florida Statutes, defines “embalmer” as “any person _ licensed under this chapter to practice embalming in this state.” 9. Section 497.380(4), Florida Statutes, provides in part that an Application for a funeral establishment license shall be made on forms and pursuant to procedures specified by rule... The applicant shall be required to make disclosure of the applicant’s criminal records, if any, as required by. s. 497.142. The applicant shall submit fingerprints in accordance with s. 497.142. A duly completed application accompanied by the required fees shall be approved and the license issued if the proposed funeral establishment has passed an inspection pursuant to rule of the licensing authority, the licensing authority determines the applicant is of good character and has no demonstrated history of lack of trustworthiness or integrity in business or professional matters, and the applicant otherwise is in compliance with all applicable requirements of this chapter. 10. Section 497.380(13), Florida Statutes, provides that Each application for a funeral establishment license shall identify every person with the ability to direct the management or policies of the establishment and must identify every person having more than a 10- percent ownership interest in the establishment or the business or ~~ corporation which owns the establishment. The licensing authority may deny, suspend, or revoke the license if any person identified in the application has been or thereafter is disciplined by a regulatory agency in any jurisdiction for any offense that would constitute a violation of this chapter. The licensing authority may deny, suspend, or revoke the license if any person identified in the application has ever been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction that directly relates to the ability to operate a funeral establishment. 11. Section 497.142(10), Florida Statutes, provides in part that, When applying for renewal of any license under this chapter, every licensee must disclose only those criminal offenses required to be disclosed under this subsection since the most recent renewal of her or his license or, if the license has not been renewed, since the licensee’s initial application. The criminal record required to be disclosed shall be any crime listed in paragraph (c) for which the person or entity required to make disclosure has been convicted or to which that person or entity entered a plea of guilty or nolo contendere. Disclosure is required regardless of whether adjudication is entered or withheld by the court. COUNT ONE 12. The above General Allegations are hereby realleged and fully incorporated herein by reference 13. On June 5, 2009, the Department received an initial application for a Funeral Establishment License from applicant, MITCHELL & MITCHELL, which listed Bernard D. Mitchell as an officer/director and principal of the applicant MITCHELL & MITCHELL. 14. The criminal records check did not disclose any criminal history that could be used to deny the Application for Funeral Establishment Licensure for MITCHELL & MITCHELL. 15. On July 22, 2011, Bernard Mitchell pled guilty to fourteen felony counts in the ____Cireuit Court of the Eighteenth Circuit, in and for Seminole County, Florida, case number 592010CF2111A, and was placed on probation for twelve and one-half years to be supervised by the Department of Corrections. Five (5) felony counts were for failing to make required deposit by preneed licensee. This criminal count is specifically related to practice in the death care industry regulated by Chapter 497, Florida Statutes, and is required to be reported to the Division pursuant to Section 497.142(10), Florida Statutes. 16. On September 13, 2011, the Department of Financial Services, Division of Funeral, Cemetery and Consumer Services entered a Final Order permanently revoking the Funeral Director and Embalmer License of Bernard Mitchell, license number F043273, as maintained in Department records case number 110594-10-FC. 17. On December 5, 2012, the Department received a completed license renewal for the licensed funeral establishment of MITCHELL & MITCHELL. As part of the completed license renewal, MITCHELL & MITCHELL answered in the negative to the question, “Has the licensee or any of its principals been convicted of, pled no contest to, or pled guilty to, any crime required to be reported pursuant to s. 497.142(10), which crime has not previously been reported to the Division.” 18. Because of this response, MITCHELL & MITCHELL misrepresented information as part of its licensure renewal in that it a principal of MITCHELL & MITCHELL, had pled guilty to a crime required to be reported pursuant to Section 497.142(10), Florida Statutes, which had not previously been reported to the Division. 19. As of the finding of probable cause in this matter, MITCHELL & MITCHELL has not disclosed to the Department the criminal offenses required to be disclosed under Section principal of the funeral establishment for MITCHELL & MITCHELL. IT IS THEREFORE CHARGED that MITCHELL & MITCHELL has violated the following provisions of the Act which constitute sufficient grounds for discipline, including the suspension or revocation of the Funeral Establishment License: (a) Section 497.152(4)(f), Florida Statutes, provides that it is a violation to attempt to obtain, obtain, or renew a license under Chapter 497, Florida Statutes, by bribery, false or forgery evidence, misrepresentation, or through an error of the Department or Board known to the applicant. (b) Section 497.142(10)(a), Florida Statutes, provides that it is a violation to fail to disclose criminal offenses required to be disclosed under this subsection since the most recent renewal of the Licensee’s license or, if the license has not been renewed, since the licensee’s initial application. (c) Section 497.152(1)(c), Florida Statutes, provides that it is a violation for failing, while holding a license under Chapter 497, Florida Statutes, to maintain one or more qualifications for such licensure. (d) Section 497.152(1)(b), Florida Statutes, provides that it is a violation to commit fraud, deceit, negligence, incompetency, or misconduct in the practice of any of the activities regulated under Chapter 497, Florida Statutes. (e) Section 497.152(1)(a), Florida Statutes, provides that it is a violation to fail to comply with any provision of this chapter or any lawful order of the board or department or of the statutory predecessors to the board or department. WHEREFORE, the Department respectfully requests that the Board enter an order imposing one or more of the following penalties: revocation or suspension of the Respondent’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 Respondent’s license on probation; assessment of costs associated with investigation and prosecution; requiring Respondent 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, MITCHELL & MITCHELL has 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 a representative of MITCHELL & MITCHELL , and must be filed with the Department within twenty-one (21) days of 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. The written response must be received by the Department no later than 5:00 p.m. on the twenty-first day after receipt of this notice. Mailing the response on the twenty-first day will not preserve the right to a hearing. FAILURE TO RESPOND IN WRITING WITHIN TWENTY- ONE (21) DAYS OF RECEIPT OF THIS NOTICE WILL CONSTITUTE A WAIVER OF THE RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF SUSPENSION OR REVOCATION WILL BE ENTERED AGAINST MITCHELL & MITCHELL 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, the 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, MITCHELL & MITCHELL is 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 to the administrative complaint. If a hearing of any type is requested, MITCHELL & MITCHELL has the right to be represented by counsel or other qualified representative at its own 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, information must be provided that complies with the Board meeting. 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. MITCHELL & MITCHELL may either submit a written statement and documentary evidence to the Board in lieu of a hearing, or personally attend a hearing conducted by the Board at the location of a regularly scheduled However, if MITCHELL & MITCHELL disputes material facts that are the basis for the Department's action, it 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 the 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 a representative of MITCHELL & MITCHELL until the response has been received by the Department. DATED and SIGNED this | (bos of Mowecd. , 2013. ~ , NVA ¢ L . Péul Whitfield, #. Deputy Chief Finayfial Officer STATE OF FLORIDA FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF FUNERAL, CEMETERY AND CONSUMER SERVICES IN THE MATTER OF: MITCHELL & MITCHELL MORTUARY, INC. CASE NO. 129484-12 -FC / aaa ~~ BERETION-OF PROCEEDING > == Respondent has received and has read the Administrative Complaint filed by the Florida Department of Financial Services ("Department"), including the Notice of Rights contained therein, and understands its options. Respondent is requesting disposition of this matter as indicated below. (CHOOSE ONE) 1] 3.[] Respondent does not dispute any of the Department’s factual allegations and does not desire a hearing. Respondent understands that by waiving its right to a hearing, the Board of Funeral, Cemetery and Consumer Services (“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. Respondent does not dispute any of the Department's factual allegations and hereby elects a proceeding to be conducted in accordance with Sections 120.57(2) and 497.153(4)(b), Florida Statutes, In this regard, Respondent desires to (CHOOSE ONE): {] Submit a written statement and documentary evidence to the Board in lieu of personally appearing at a hearing conducted by the Board at the location of a regularly scheduled Board meeting; OR {] Personally attend a hearing conducted by the Board at the location of a regularly scheduled Board meeting. Respondent does dispute one or more of the Department's factual allegations, and hereby requests a hearing pursuant to Section 120.57(1), Florida Statutes, to be held before the Division of Administrative Hearings. Respondent has 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, it has identified the disputed issues of material fact in the response attached hereto. TO PRESERVE THE RIGHT TO A HEARING, RESPONDENT MUST FILE ITS RESPONSE WITH THE DEPARTMENT OF FINANCIAL SERVICES WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THE ADMINISTRATIVE COMPLAINT. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 PM. ON THE TWENTY-FIRST DAY AFTER RESPONDENT’S RECEIPT OF THE ADMINISTRATIVE COMPLAINT. The address for filing is: Julie Jones, 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 represented by an attorney or qualified Phone No. Tepresentative, please attach to this election form his or her name, address, telephone and fax numbers Fax No. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE ROO AEN and NON OF EE EONS) FORM has been ae ‘by US. 8. Kae ice Mail, return receipt requested this W. day of | , 2013, to: MITCHELL & MITCHELL MORTUARY, INC. 1327 Douglas Street Sanford, Florida 32771 Assistant General Counsel Fla. Bar No. 230560 Florida Department of Financial Services Division of Legal Services 200 E. Gaines St., Suite 624 Tallahassee, Florida 32399-0390 Phone: (850) 413-4180 Fax: (850) 488-0697 maryk.surles@myfloridacfo.com Counsel for the Department

Docket for Case No: 13-001246