The Issue Whether the license of Arnett P. Rogers, Funeral Directors' license number 701 and Embalmers' license number 873 and the license of House of Rogers Funeral Home Establishment Operators' license number 6700 should be revoked, suspended or annulled or whether Arnett P. Roger should be otherwise disciplined.
Findings Of Fact Arnett P. Rogers holds Funeral Directors' license number 701 and Embalmers' license number 873 and is the owner of House of Rogers Funeral Home which was issued Establishment Operating license number 6700. Respondent was charged in a complaint issued by Petitioner with violating Setion 470.12(1)(k); Section 470.12 (2)(c); and section 470.12(2)(p), Florida Statutes, in that as a licensed funeral director and embalmer he was found guilty of, after being charged with, a crime of moral turpitude in this State. More specifically, Respondent was charged with being found guilty of violating Section 409.325, Florida Statutes, which prohibits fraud in the handling of federal food stamps. The Respondent, Arnett P. Rogers, was charged with violating the terms of probation imposed upon him by final order of the State Board of Funeral Directors and Embalmers dated January 31, 1977, which adopted a recommended order dated December 1, 1976, copies of which are attached hereto and made a part hereof, after being charged and found guilty of a crime of moral turpitude in this state. Petitioner charged the Respondent, House of Rogers Funeral Home, with the violation of Section 470.12(4)(a), Florida Statutes, in that Arnett P. Rogers, the licensed funeral director in charge of and owner and operator of said funeral home committed acts in violation of Chapter 470, Florida Statutes, by being found guilty of a crime involving moral turpitude in this state. Respondent, House of Rogers Funeral Home, was charged with having violated the terms of the Order of Probation dated January 31, 1977. Upon examination of the evidence submitted and considering the testimony of a witness produced by the Petitioner, it is found that the Arnett Rogers shown in the information filed and judgment of guilt ordered September 23, 1977, which is attached hereto and made a part hereof, is one and the same person as the Respondent, Arnett P. Rogers. No evidence was offered mitigating the apparent turpitude of the offense for which Respondent Roger was found guilty. The Respondent, Rogers, violated the terms and conditions of the Final Order entered on January 31, 1977, which revoked Respondent's licenses but withheld revocation pending the satisfactory completion of a two year probation period beginning on the date the Order was entered. It is found that the conviction of Respondent by Judgment dated June 27, 1977, and filed by the Clerk of the Circuit Court, Fourth Judicial Circuit of Florida, in and for Duval County, Florida, is a violation of the requirements of Chapter 470, Florida Statutes, and is not a "satisfactory completion of a two year probationary period" required by the foregoing Final Order. The adjudication of guilt of a crime proscribed by Section 409.325, Fraud.-Florida Statutes, is a "crime of moral turpitude" and a violation of Section 470.12(2)(c) Florida Statutes. From the testimony and evidence submitted, it is found that Respondent intended to use food stamps as payment for funeral services to be rendered by him and The House of Rogers when he accepted food stamps in a negotiation for a down payment for a funeral. The proposed orders of the parties have been considered in the rendition of this order and any part thereof not directly treated is found to be without merit.
Recommendation Revoke the licenses of Arnett P. Rogers and the House of Rogers Funeral Home. DONE and ENTERED this 6th day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202
The Issue The issues are as follows: (a) whether Respondent violated Section 470.036(1)(t), Florida Statutes, by embalming a deceased human body without obtaining permission from a legally authorized person; (b) whether Respondent violated Section 470.036(1)(p), Florida Statutes, by refusing to promptly surrender custody of a dead human body upon the express order of the legally authorized person; and if so, (c) what penalty should be imposed.
Findings Of Fact Respondent is the licensed funeral director in charge for Marion Graham Mortuaries in Jacksonville, Florida. Catherine Gillis died at her home in Jacksonville, Florida, on August 6, 2000. Ms. Gillis was 70 years old at the time of her death. Patricia Stokes, Ms. Gillis's daughter, called 911 when she found her mother on the kitchen floor. Deputy Michael Williams from the Jacksonville Sheriff's Office responded to the call. Deputy Williams was unable to contact Ms. Gillis's doctor, Dr. David Badolato. The on-call physician in Dr. Badolato's office refused to sign off on the death certificate. Therefore, Deputy Williams called the Duval County Medical Examiner's Office, making contact with Deanna Webber, a forensic investigator. After Ms. Webber spoke to the medical examiner, she called Deputy Williams back. She told him that Ms. Gillis's body could be transferred to the funeral home of the family's choice but the body must be held until the personal physician made a commitment to sign the death certificate or the medical examiner inspected the body and signed the death certificate. Ms. Stokes, in consultation with her church sister, Ms. Theresa Williams, chose Respondent's funeral home to receive the body on the evening of August 6, 2000. Deputy Williams then contacted Respondent's funeral home, specifically stating that the body was to be held for inspection by the medical examiner in case the personal physician did not agree to sign the death certificate. River City Removal Service transported Ms. Gillis's body to Respondent's funeral home at approximately 7:30 p.m. on August 6, 2000. Even though Ms. Stokes had approved this transfer, she mistakenly believed that the medical examiner's office had taken the body to the morgue. On Monday, August 7, 2000, Ms. Stokes called the medical examiner's office to inquire about an autopsy on her mother's body and to instruct its removal to an establishment other than Respondent's funeral home. After the call, Ms. Stokes understood that an autopsy would not be performed at public expense and that Ms. Gillis's body was already at Respondent's funeral home. In the meantime, Willie Mae Albany arrived for work at Respondent's funeral home at approximately 9:00 a.m., on August 7, 2000. At that time, Ms. Albany's job included performing clerical duties. Respondent arrived at the funeral home about 10:30 a.m., on August 7, 2000. He knew there were three bodies that needed to be embalmed that day: (a) Dorothy Green, whose body had been received on Sunday, August 6; (b) Leonard Hopkins, whose family had signed a release and permission to embalm on Saturday, August 5; and (c) Jimmie Simpson, whose body had been received on Monday, August 7. Respondent was aware when he arrived at the office that there was no authorization to embalm Ms. Gillis. He instructed Ms. Albany to contact Eric Fleming, a freelance trade embalmer, to come in to embalm Ms. Green, Mr. Hopkins, and Mr. Simpson. Mr. Fleming was not an employee of Respondent's funeral home. Instead, he was paid by the case. Ms. Albany left several telephone messages for Mr. Fleming advising him about the three bodies that needed to be embalmed. She did not know exactly when he came to work, but she transferred a telephone call to Mr. Fleming in the embalming room at the funeral home about 11:30 a.m. Ms. Albany also contacted Dr. Badolato's office on the morning of August 7, 2000. After that telephone call, Ms. Albany understood that Dr. Joedrecka Brown would sign the death certification for Ms. Gillis. Ms. Albany then typed an Application for Burial-Transit Permit for Ms. Gillis. This form advises the county health department that someone has died and that a death certificate is forthcoming. Ms. Albany placed the burial-transit permit application on the counter where Respondent usually picks up the typed forms. Respondent signed the form on August 7, 2000, even though his signature on the form was dated August 9, 2000. Because her mother's body was already at Respondent's funeral home, Ms. Stokes decided to make funeral arrangements with Respondent instead of removing the body to another establishment. Thus, Ms. Stokes and her church sister, Ms. Williams, went to Respondent's funeral home around 4:00 p.m., on April 7, 2000, for an appointment with Respondent. Ms. Albany greeted Ms. Stokes when she arrived at Respondent's funeral home. Ms. Albany advised Ms. Stokes that Respondent was delayed and that he wanted her to begin filling out the paperwork. Ms. Albany then took Ms. Stokes and Ms. Williams to a conference room. Ms. Albany had a file containing the necessary paperwork. Ms. Albany sat with Ms. Stokes, identifying the documents in the file as she handed them to Ms Stokes. One of the documents in the file was an Authorization to Embalm form. After Ms. Albany explained the purpose of the form, Ms. Stokes signed it without asking any questions. Ms. Albany also presented Ms. Stokes with a Disclosure/Disclaimer form, a death certificate application, an arrangements form, and a newspaper release form. Ms. Stokes filed out these forms and signed each one that required her signature except for the funeral purchase contract. Ms. Albany did not discuss the funeral purchase contract with Ms. Stokes. Ms. Albany stayed with Ms. Stokes and Ms. Williams in the conference room for about 15-20 minutes. After leaving the conference room, Ms. Albany noticed that Respondent had arrived at the funeral home. Respondent arrived at the funeral home sometime before 4:40 p.m. Respondent first checked the reception counter where he found the completed burial-transit permit for Ms. Gillis. At that point, he knew that Ms. Gillis's body could be embalmed and that the family could proceed with the funeral service arrangements. Respondent began his meeting with Ms. Stokes and Ms. Williams at approximately 4:40 p.m. During the conference, Respondent reviewed all of the forms with Ms. Stokes, including her signed Authorization to Embalm form. In discussing the funeral arrangements, Ms. Stokes informed Respondent that she definitely wanted a formal visitation for her mother. Respondent knew that the embalming process needed to begin as soon as possible in order for the body to be presentable for formal visitation. The greater weight of the evidence indicates that Respondent, and not Ms. Albany, escorted Ms. Stokes and Ms. Williams to the selection room to view caskets at approximately 5:00 p.m. Respondent left Ms. Stokes and Ms. Williams in the selection room and went next door to the embalming room to speak to Mr. Fleming. Mr. Fleming had just completed the embalming process of Mr. Hopkins. Respondent directed Mr. Fleming to begin embalming Ms. Gillis because her daughter had given permission. Respondent returned to the selection room 30 seconds later. Respondent proceeded with the embalming while Ms. Stokes was in the funeral home. He made this decision based on his knowledge that Dr. Brown would sign the death certificate, thereby releasing the medical examiner's hold on the body. He also had a written authorization from Ms. Stokes to embalm. The majority of Respondent's cases are embalmed before he obtains a signed funeral purchase agreement. Respondent, Ms. Stokes, and Ms. Williams returned to the conference room to discuss the funeral purchase contract, showing the prices for a graveside service and a church service. This discussion lasted another 30 to 45 minutes. Ms. Stokes did not sign the funeral purchase contract, in part, due to her concern about the quoted prices. She advised Respondent that she would have to consult with a relative regarding the costs of a graveside service or a church service. Before she left the funeral home, Ms. Stokes asked Respondent if he had done anything to her mother's body. Respondent replied that he had embalmed Ms. Gillis because by that time, the embalming process was more than half complete. It takes an average of one hour to one and one half hours to embalm a body. For a worst case scenario, it would take approximately three hours to embalm a body. Leonard Hopkins would have taken longer than average to embalm because he had been the subject of an autopsy. Ms. Stokes consulted with relatives upon returning home on the evening of August 7, 2000. The family decided that Respondent's prices were too high. Ms. Stokes contacted Respondent by telephone around 9:00 p.m. She instructed Respondent not to do anything else to her mother's body because she intended to retain the services of another funeral home. Ms. Stokes also wanted to know what she owed Respondent. Respondent replied that he did not have the papers in front of him but that the expenses were approximately $850 for transporting, embalming, and paperwork. Respondent did not overtly state or imply that he would not release the body until he was paid. The next morning, Tuesday, August 8, 2000, Ms. Stokes made arrangements with Toston-LaFrans Funeral Home to handle her mother's funeral. Ms. Stokes then went to Respondent's funeral home where Respondent's staff informed her that the expenses were $860. Respondent was not at the funeral home on the morning of August 8, 2000. He was not there when Ms. Stokes returned to the funeral home around 1:00 p.m. Ms. Stokes then made arrangements with Toston-LaFrans Funeral Home to have Ms. Gillis's remains removed to their facility and to pay Respondent. In the meantime, Ms. Albany advised Respondent that Ms. Stokes wanted the body moved to Toston-LaFrans Funeral Home. When Respondent could not reach Ms. Stokes by telephone, he contacted Mrs. Walker of Toston-LaFrans Funeral Home, informing her that he needed a signed release prior to the removal of the body. After that telephone call on August 8, 2000, Respondent understood that Ms. Stokes would sign a release at Toston- LaFrans Funeral Home before the body was transported. Sometime before 2:00 p.m., on August 8, 2000, the medical examiner's office confirmed that Dr. Brown would sign Ms. Gillis's death certificate. The medical examiner's office then contacted Respondent's funeral home to let them know that the hold on the body was lifted. On Wednesday, August 9, 2000, around 4:30 or 5:00 p.m., Toston-LaFrans Funeral Home called to advise Respondent that Ms. Stokes had signed a release. Respondent informed Toston-LaFrans Funeral Home that the body could be picked up anytime before the office closed at 6:00 p.m., or after that time if need be because Respondent would be working late that evening. Ms. Gillis's body was removed to Toston- LaFrans Funeral Home that evening after 6:00 p.m. Respondent paid Mr. Fleming by check on August 12, 2000, for embalming four bodies, including Ms. Gillis, on August 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Sherry Landrum, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Did Respondents offer for sale, sell, or receive money from the sale of, preneed funeral service and merchandise contracts without possession of a valid certificate of authority? Did Respondents fail to submit preneed contract forms and trust agreement forms to the Department of Banking and Finance (Department) or the Board of Funeral and Cemetery Services (Board) for approval before using such forms, and did such forms meet the statutory requirements? Did Respondent, Robert E. Romaine, individually, offer for sale, sell or execute preneed contracts on behalf of Romaine- Sarasota Funeral home without first being registered as a preneed sales agent? Did Respondents violate Section 497.433, Florida Statutes, by making misrepresentations and false statements that would constitute unfair methods of competition or an unfair or deceptive act or practice as defined in Section 497.445(1),(2), and (4), Florida Statutes? Case No. 94-7102 Should Petitioner Romaine-Sarasota Funeral Home be issued a certificate of authority to sell preneed funeral service and merchandise contracts?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following findings of fact are made: General Findings of Fact The Department, in association with the Board, is the agency charged with the responsibility of regulating the sale of preneed funeral service and merchandise contracts (preneed contracts). The Board is further authorized to grant, deny, renew, suspend, or revoke certificates of authority to sell preneed contracts and to register preneed sales agents pursuant to Chapter 497, Florida Statutes. Respondent Romaine Enterprises, Inc., d/b/a Romaine Sarasota Funeral Home, (Romaine Funeral) is a corporation existing under the laws of the State of Florida, conducting business in this state, and principally located at 3340 Bee Ridge Road, Sarasota, Sarasota County, Florida. Respondent Robert E. Romaine (Romaine) is president and owner of Romaine Funeral. Romaine Funeral does not possess, and has never possessed, a valid certificate of authority to sell preneed contracts. At no time material to this proceeding was Romaine licensed as a funeral director or registered as preneed sales agent with the Board. At all times material to this proceeding, Edward W. Bacon, Jr., (Bacon) and Barrington G. "Barry" Hayes (Hayes) were funeral directors licensed under Chapter 470, Florida Statutes, who have been, and are currently, employed by Romaine Funeral. Findings of Fact - Enforcement Proceeding Romaine Funeral purchased air time from Comcast Cablevision of Sarasota formerly Storer Cable (Comcast) for the purpose of airing certain spot commercials advertising the availability of Romaine Funeral's inflation proof preneed plan. Some of the spot commercials referred only to the availability of Romaine Funeral's "Preneed Plan" without any reference to the plan being inflation proof. There were at least nine of these spot commercials aired on Comcast at different times during the period of November, 1992 through May, 1993. The evidence clearly shows that these television advertisements were used for the purpose of promoting a preneed plan by Romaine Funeral. Romaine Funeral advertised in a 1994 Folio Calendar prepared by Plan Concepts, Inc. which was distributed locally. The last paragraph of Romaine Funeral's advertisement contained the following language: "Their licensed personnel offer 'Pre-Planning' which is 100 percent refundable." (Emphasis supplied). On October 14, 1993, the Department requested that Romaine provide it with a copy of the "inflation-proof plan" and a list of all of Romaine Funeral's clients who had "In-Trust-for-Accounts" with Romaine Funeral. On October 23, 1993, Romaine provided the Department with the names of 16 customers who owned money market certificates or certificates of deposit held in trust for Romaine Funeral. Subsequently, Romaine produced a list containing the names of 38 customers of Romaine Funeral who owned money market certificates or certificates of deposit held in trust for Romaine Funeral. This list contained the name of the depository institutions, account numbers and contract dates. The contract dates cover a period from April 30, 1982, through February 28, 1995. Additionally, Romaine produced copies of a form titled "Funeral Purchase Order" (contract) used by Romaine Funeral in contracting with individuals purchasing funeral services or merchandise to be provided upon the death of the person (customer) for whom the funeral services or merchandise were purchased. The dates on these Funeral Purchase Orders cover a period of time from February 28, 1985 through July 21, 1994. One Funeral Purchase Order was undated. There are 23 of these Funeral Purchase Orders, including the undated one. Romaine Funeral changed its form sometime after July 21, 1994. The contracts furnished by Romaine dated from September 12, 1994, through February 28, 1995, are on this new form. One contract is undated. There are seven of these contracts, including the undated one. These contracts were also used by Romaine Funeral in contracting with the individuals purchasing funeral services or merchandise to be provided upon the death of the person (customer) for whom the funeral services or merchandise was purchased. The Funeral Purchase Order forms used by Romaine Funeral in contracting with Lauria B. Urquhart and Marshall Urquhart each have the word "Pre-paid" typed on the front of the form at the very top right hand corner. Several of the Funeral Purchase Order forms used in contracting with different individuals have the language "Interest stays in account to take care of any cost of increases for services" typed in the middle of the page. All of the Funeral Purchase Order forms have the language "The liability incurred by Romaine-Sarasota Funeral Home can not (sic) exceed the face amount of this contract" printed just above the signature line for the purchaser and the language "We agree to furnish all services, merchandise (sic) and cash expenditures indicated above" printed just above the signature line for Romaine Funeral. Upon execution of the contract, the amount of the contract was paid by, or for, the customer to Romaine or someone else for Romaine Funeral. Upon receipt of these funds, Romaine would purchase a money market certificate or certificate of deposit in the name of the customer in trust for Romaine Funeral. Romaine retained possession of the certificates. All information concerning the certificates was mailed directly to Romaine by the depository institution. Romaine unilaterally handled the purchasing of the certificates from the depository institution. The customer was never involved in the purchase of a certificate, other than by furnishing the funds. The two exceptions to the above process were: (a) the certificate for the Edna Jones contract was purchased in Romaine's name individually and; (b) the certificate for the William J. Jones contract was purchased in the name of William J. Jones, individually. Thirty of the contracts entered into by Romaine Funeral with individuals purchasing funeral services or merchandise to be furnished by Romaine Funeral upon the death of the customer have corresponding certificates in the face amount of the contract. The contract dates range from February 28, 1985 through February 28, 1995. All the signed contracts in the record were signed by either Hayes or Bacon or Thomas P. Packer or Richard Reed on behalf of Romaine Funeral. A majority of the corresponding certificates were purchased on the same date of the contract or within a month of the contract date. The date of the first certificate being March 14, 1985 and the date of the last certificate being February 28, 1995. All of these corresponding certificates are in the name of the customer in trust for Romaine Funeral. These certificates are in the possession of Romaine and, with the exception of Ester and Edwin Myers, any information from the depository institution concerning these certificates is mailed directly to Romaine. Not all of the 38 accounts (certificates) listed by Romaine as in trust for accounts had a corresponding contract. Funds have been, and are being held, by depository institutions in accounts for customers of Romaine Funeral, in trust for Romaine Funeral. Both Romaine, who unilaterally set up the customer accounts, and Romaine Funeral have failed to demonstrate that there were trust agreements between the depository institutions and Romaine or Romaine Funeral or, if there were trust agreements, that such trust agreements had been submitted for approval to, or approved by, the Department, the Board, or any other predecessor agency. There exist approximately 45 accounts in the Sun Bank representing certificates in the name of Romaine, individually. However, other than certificate number 175016583, there is no evidence to show that any of the other certificates were purchased using funds derived from funeral services or merchandise contracts entered into between Romaine Funeral and its customers. Yvonne E.G. DiFiore (DiFiore), a resident of New Jersey, entered into a contract (Funeral Purchase Order) with Romaine Funeral where she purchased funeral arrangements from Romaine Funeral for her mother, Edna Jones, prior to her mother's death. Hayes, a licensed funeral director, signed the contract for Romaine Funeral. DiFiore spoke only with Romaine at the time of making the funeral arrangements. Romaine agreed to furnish all funeral services and merchandise as requested by DiFiore for her mother's funeral. DiFiore paid to Romaine the sum of $1,200 for her mother's funeral arrangements. Romaine gave DiFiore a copy of the Funeral Purchase Order stamped "PAID: 11-16-87, check no. 001526," and initialed "R.E.R.", as receipt for payment. DiFiore received a copy of a money market certificate from Romaine Funeral in the name of Romaine, individually, in the amount of $1,200. The account number, 175016583, on the certificate matches an account number listed on the Sunbank customer detail of Romaine. DiFiore never received any documentation regarding this account from Sunbank/Gulf Coast, formerly Coast Bank. At the time of her mother's death, DiFiore did not fill out any other documents with Romaine Funeral or pay any additional money to Romaine Funeral for the services provided by Romaine Funeral. DiFiore also entered into a contract with Romaine Funeral whereby she purchased funeral arrangements from Romaine Funeral for her father, William J. Jones, who is still living. Hayes also signed the contract for Romaine Funeral. DiFiore spoke only with Romaine in making these arrangements. Romaine agreed to furnish all funeral services and merchandise as requested by DiFiore for her father's funeral. DiFiore paid to Romaine the sum of $1,200 for her father's funeral arrangements. Romaine gave DiFiore a copy of the Funeral Purchase Order stamped "PAID: 11-16-87, check no. 001526", and initialed "R.E.R.", as receipt for payment. A copy of the William J. Jones Funeral Purchase Order produced by Romaine pursuant to subpoena had the language "Interest stays in account to take care of any cost of increases for service" typed on the contract. This language does not appear on the copy of the Funeral Purchase Order given to DiFiore for her father. Romaine gave a document to DiFiore which was different from the document on file with Romaine Funeral. DiFiore received a copy of a money market certificate from Romaine Funeral in the name of Williams J. Jones, individually, in the amount of $1,200. DiFiore never received any documentation regarding this account from Sunbank/Gulf Coast, formerly Coast Bank. To her knowledge, her father never received any documentation from Sun Bank/Gulf Coast, formerly Coast Bank, regarding this account. Neither DiFiore nor her father went to the bank to set up either the account for Edna Jones' arrangements or the account for William J. Jones' arrangements. DiFiore is of the opinion that all of William J. Jones' funeral arrangements are to be furnished by Romaine Funeral without further cost. Edwin and Esther Myers made funeral arrangements with Romaine and his wife, Marguerite C. Romaine, at the Romaine residence. No one else was present. Romaine Funeral agreed to provide funeral services and merchandise to the Myerses in the future, at their death. The Myerses paid Romaine the sum of $1,000 in advance for these funeral arrangements. Romaine completed a Funeral Purchase Order for both Edwin and Esther Myers, dated May 19, 1988, which contained the notation: "Paid 7-5-88 . . . $500.00" and were signed by Hayes. Using the funds furnished by the Myerses, Romaine purchased a money market certificate in the name of Edwin Myers and Esther Myers, in trust for Romaine Funeral, at Coast Bank. The Myerses were not present at the time Romaine purchased the certificates. The Myerses were of the opinion that Romaine Funeral was receiving the interest and paying the taxes on the interest on the accounts set up by Romaine. However, as a result of an Internal Revenue Service audit, the Myerses have reported and continue to report the interest earned on the account on their federal income tax. All interest statements regarding these accounts, prior to an Internal Service Audit of the Myerses, reflect the address of Romaine Funeral. The Myerses are of the opinion that their funeral arrangements will be furnished by Romaine Funeral without any further payment. Cecelia Kehoe made funeral arrangements for herself with Romaine Funeral. Kehoe paid to Romaine Funeral the sum of $435. Romaine completed a Funeral Purchase Order for Kehoe, dated July 28, 1988, which was marked "Paid 7-28-88 . . . $500" and signed by Hayes. A money market certificate in the amount of $500 was purchased at Coast Bank by Romaine Funeral in the name of Cecelia Kehoe, in trust for Romaine Funeral. Ms. Kehoe is of the opinion that Romaine Funeral will provide her funeral arrangements without any further payment at the time of her death. Ignatius and Doris L. Cassidy, with their son John P. Cassidy, made funeral arrangements with Romaine Funeral through Romaine. Romaine Funeral contracted for "prearranged" funeral services and agreed to provide funeral services and merchandise in the future at the death of Mr. and Mrs. Cassidy. Mr. and Mrs. Cassidy paid to Romaine the sum of $1,000 for their funeral services. Mrs. Cassidy produced a receipt with a Romaine Funeral business card attached, dated January 3, 1989, for payment of $1,000 for "funeral expenses," from Marguerite C. Romaine. However, the receipt does not indicate to whom the receipt was issued. Mrs. Cassidy received no other documentation regarding the funeral arrangements. A Funeral Purchase Order dated January 3, 1988, for Doris Cassidy was produced by Romaine pursuant to subpoena, with the notation: "Paid 1-3-88 Ck#369 . . . $500.00". The Funeral Purchase Order was signed by Hayes on behalf of Romaine Funeral. Romaine represented to Mrs. Cassidy that the funds would be placed in a trust account. Mrs. Cassidy never received any document stating that these funds were refundable. Mrs. Cassidy has never received any documentation regarding the account, nor did she go to the bank to set up the account. At the time of her husband's (Ignatius Cassidy) death, Mrs. Cassidy did not have to fill out any additional forms nor did she pay any additional monies for the services provided by Romaine Funeral. Mrs. Cassidy is of the opinion that Romaine Funeral will provide all of her funeral arrangements without further cost. Ben and Laura Yoder made funeral arrangements with Romaine Funeral through Romaine and Marguerite Romaine. Mr. and Mrs. Yoder paid to Romaine and Mrs. Romaine the sum of $4,760. Romaine Funeral, through Romaine, agreed to provide funeral services and merchandise to the Yoders in the future at the time of their deaths. Romaine gave Mr. and Mrs. Yoder copies of Funeral Purchase Orders stamped "PAID" on "6/13/88" and initialed "M.C.R." by Marguerite C. Romaine. Neither of the Funeral Purchase Orders were signed by either of the Yoders or by someone for Romaine Funeral. The Funeral Purchase Orders for Ben and Laura Yoder, produced by Romaine pursuant to subpoena did not have "PAID" stamped on the document and contained the signature of Barrington G. Hayes for Romaine Funeral. Romaine gave documents to the Yoders which were different from those documents on file with Romaine Funeral. Romaine purchased money market certificates in the Yoder's names in trust for Romaine Funeral at Coast Bank, outside the presence of the Yoders. The Yoders have received no documents from Sun Bank, formerly known as Coast Bank, regarding the accounts set up by Romaine All interest statements regarding these accounts reflect the address of Romaine Funeral. Mr. and Mrs. Yoder were of the opinion that Romaine Funeral will provide all funeral arrangements without any further payment at the time of their deaths. Romaine Funeral agreed to provide funeral services and merchandise to Tynes S. Buchanan by a Funeral Purchase Order dated January 2, 1988, signed by Edward W. Bacon, Jr. for Romaine Funeral. By agreement, dated June 2, 1988, titled Agreement To Establish Irrevocable Preneed Funeral Merchandise or Service Contract, Romaine, on behalf of Romaine Funeral and Agatha Yahraus, on behalf of Tynes Buchanan, parties to Preneed Funeral Merchandise or Service Contract no. 2-1988 (preneed contract no. 2-1988), agreed to make preneed contract 2-1988 irrevocable, pursuant to Section 639.13(6), Florida Statutes (1987). Preneed contract no. 2-1988 referenced in the agreement appears to be the same contract referred to in Finding of Fact 70 dated January 2, 1988. However, other than the date, (January 2, 1988) the number 2-1988 does not appear on Buchanan contract. Romaine, individually, has not advertised or offered for sale preneed funeral services and merchandise contracts while failing to register as a preneed sales agent. Romaine Funeral entered into contracts with customers whereby Romaine Funeral agreed to furnish funeral services and merchandise in the future upon the death of the customer. During the period of time (February 28, 1985 through February 28, 1995) that Romaine Funeral was contracting to furnish funeral services and merchandise in the future, Romaine Funeral did not possess a valid certificate of authority. The contract forms used by Romaine Funeral for contracting with customers to furnish funeral services and merchandise in the future did not have: (a) sequential numbering or sequential prenumbering; (b) specific disclosure regarding Romaine Funeral's selection of either trust funding or the financial responsibility alternative in connection with the receipt of the proceeds from the contract; (c) a requirement that the purchaser make all payments directly to the trustee; (d) a clause expressly stating that Romaine Funeral did not have any dominion or control over the trust or its assets until the contract was entirely completed or performed; (e) any language in conspicuous type advising the contract purchaser of the right to cancel the contract within a given time or; (f) any language in conspicuous type that the purchaser may receive a federal income tax informational statement from the trustee. None of the contract forms used by Romaine Funeral in contracting with its customers to furnish funeral services and merchandise in the future have been submitted to, or approved by, the Department, the Board or a predecessor agency. Findings of Fact - Application Proceeding On or about February 14, 1994, the Department received an Application for Certificate of Authority (First Application) from Romaine Funeral, executed under oath as to truth and accuracy by Romaine, as owner/president, on February 2, 1994. Question 16 of the First Application stated: "Submit copies of preneed contracts proposed to be written and preneed trust agreements." Romaine, as owner/president of Romaine Funeral, did not submit copies of documents required in question 16 with the First Application. By letter dated March 16, 1994, the Department and the Board advised Romaine Funeral of its failure to submit copies of preneed contracts proposed to be written and preneed trust agreements as required by question 16 of the First Application. The letter further advised Romaine Funeral that it had forty-five (45) days from the date of the letter to resolve the deficiency, and that failure to submit the necessary documents would result in denial of the First Application. The expiration date for the 45 days was noted as being April 30, 1994. Romaine, as owner/president of Romaine Funeral, did not submit copies of documents required in question 16 with the First Application within the 45- day period. By an undated letter certified as being mailed to Romaine-Sarasota Funeral Home on July 21, 1994, the Department and the Board advised Romaine Funeral that its First Application had been denied based upon its failure to provide additional information as requested by the letter dated March 16, 1994. The denial letter also advised Romaine Funeral that a violation of Section 497.405(1)(a), Florida Statutes, selling a preneed contract without first having a valid certificate of authority, subjects the company to disciplinary action by the Department. The denial letter further advised Romaine Funeral that it had twenty-one days in which to file a petition for administrative hearing. On or about July 27, 1994, after the expiration of the 45-day period, the Board received via hand delivery a letter from Robert J. Cerra of Association of Independent Funeral Directors of Florida (Association), which stated in part: Enclosed are the proposed trust agreements and contracts for use by Romaine-Sarasota Funeral Home. . . . . . . This is to request that you accept these documents on the funeral homes' behalf and that you will place the application on the agenda for the Board for approval. Attached to the letter, was an "Agreement and Declaration of Trust of Independent Funeral Directors of Florida, Inc., Master Trust Fund A" (Trust Agreement) and a "Prearranged Funeral Agreement" (Preneed Contract). By letter dated September 9, 1994, and certified as being mailed to Romaine-Sarasota Funeral Home on July 21, 1994, the Department and the Board advised Romaine Funeral that its First Application had been denied "based on Section 497.405(1)(a), Florida Statutes, which states 'No person may sell a preneed contract without first having a valid certificate of authority.'" The letter advised Romaine Funeral of its right to file a petition for administrative hearing. Neither the Department nor the Board has amended the denial letter to include any other basis for denial than that set out in its letter of September 9, 1994. The "Trust Agreement" form and "Preneed Contract" form submitted by the Association to the Board on behalf of Romaine Funeral would have been approved for use by Romaine Funeral had its First Application been granted. Further Findings of Fact - Enforcement Proceeding Romaine Funeral filed another application (Second Application) for Certificate of Authority with the Department on March 21, 1995. The Second Application was filed before any final resolution with regards to the First Application. In response to question 7, "Is the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant, the subject of a pending criminal prosecution or governmental enforcement action in any jurisdiction?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed this second application for Romaine Funeral he was aware of the pending administrative action filed against Romaine and Romaine Funeral by the Department of Banking and Finance and the Department of Business and Professional Regulation. In response to question 9 of the Second Application, "Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant, had a license, or the equivalent, to practice any profession or occupation denied, revoked, suspended, or otherwise acted against?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed the Second Application for Romaine Funeral, action on the Department's denial of Romaine Funeral's first application was still pending and the denial was not final. However, Romaine and Romaine Funeral knew at the time of filing the second application that the Department of Business and Professional Regulation had filed an action against Romaine Funeral's license as a funeral home. In response to question 11 of the Second Application "Has the applicant entered into any preneed contracts?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed the Second Application, the position of both Romaine and Romaine Funeral in these cases was that Romaine Funeral had not entered into contracts for the sale of preneed funeral arrangements. In response to question 12 of the Second Application, "Has the applicant accepted funds for prearrangements, or entered into any preneed contracts funded by any method other than those permitted by Ch. 497, where the applicant is the beneficiary?" Romaine, as owner/president of Romaine Funeral, answered "Yes." On April 28, 1995, Romaine executed a document changing the answer to question 7 from "no" to "yes" and the answer to question 12 from "yes" to "no" on the second application. This document was filed on May 1, 1995. At the time Romaine corrected his answer to question 7 it was correct based on the Respondents' position in the enforcement proceeding. There was insufficient evidence to show that Romaine knowingly falsified the answers to questions 7, 9, 12 and 13 on the second application for the purpose of intentionally misrepresenting the facts or misleading the Department. Romaine signed a document entitled "Agreement to Establish an Irrevocable Preneed Funeral Merchandise or Service Contract" on June 2, 1988, for Romaine-Sarasota Funeral Home. The Agreement was between Romaine Funeral and Tynes S. Buchanan. This Agreement represents that Romaine Funeral "is in the business of selling prepaid funeral merchandise and services in accordance with Chapter 639, Florida Statutes, as amended". Romaine admitted, based on the Respondents' position in the enforcement proceeding, that the statement contained in the above referenced agreement is a false statement. There was no evidence of any complaints being made by any of Romaine Funeral's customers concerning these contracts. The only complaint received by the Department, the Board or predecessor agency was filed by a competitor of Romaine Funeral. There was no evidence that Romaine Funeral had failed to honor any contract upon the death of the person for whom the funeral services or merchandise had been purchased. In those instances where the record shows the customer has died, Romaine Funeral performed under the contract to satisfaction of the deceased's survivor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Funeral and Cemetery Services: (a) enter a Cease and Desist Order requiring Respondents and all others acting in concert and cooperation therewith to cease and desist from the sale or offering to sell any prearranged or preneed funeral contracts and to take the necessary corrective action, under the Board's or Department's supervision, to allow each and every person with whom the Respondents have a contract for preneed funeral services or merchandise, which is still in force, the option to rescind the present contract and have refunded to them all monies, including interest, or continue under the present contract with Respondents and; (b) enter a final order denying Romaine Funeral's application for a certificate of authority to enter into preneed contracts until such time as Romaine/Romaine Funeral have completed the above corrective action, at which time the Department or Board would reconsider another application for a certificate of authority. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-3862 AND 94-7102 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in these cases. Department's Proposed Findings of Fact: Proposed findings of fact 1 through 11, 13 through 15, 20 through 23, 25 through 92, 94, 96, 98 and 104 through 109 are adopted in substance as modified in Findings of Fact 1 through 100. Proposed findings of fact 12, 16 through 19, 24, and 99 through 103 are unnecessary or immaterial or irrelevant. Proposed findings of fact 93, 95 and 97 are not supported by evidence in the record. Romaine's/Romaine Funeral's Proposed Findings of Fact: 1. The Respondents filed a document titled Proposed Recommended Order that presents their case in narrative form which sets forth their argument. Since it is unclear from the document what portion is argument and what portion is proposed findings, I have not attempted to separate what the Respondents may consider proposed findings of fact from argument and respond. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 J. Stratis Pridgeon H. Richard Bisbee, Esquire Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Marvene A. Gordon, Esquire 2831 Ringling Blvd., Suite 208-C Sarasota, Florida 34237
The Issue Whether or not the Respondent, Franklin D. Zeigler, as a licensed embalmer violated Section 470.l2(1)(c), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342 (fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television) Whether or not the Respondent, Franklin D. Zeigler, as a licensed funeral director violated Section 470.12(2)(c), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371(conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342(fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio or television). Whether or not the Respondent, Franklin D. Zeigler, as a licensed embalmer violated Section 470.12(1)(k), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 U.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1342 (fraudulent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television). Whether or not the Respondent, Franklin D. Zeigler, as a licensed funeral director violated Section 470.12(2)(p), Florida Statutes, in that he has been found guilty by a jury in the United States District Court for the Middle District of Tennessee, Docket No. 76-227-NA-CR, after allegedly being charged with a crime involving moral turpitude; specifically, the convictions pertain to violations of 18 J.S.C. 371 (conspiracy to commit offense or to defraud the United States), 18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1,342 (fraudu1ent use of a fictitious name) and 18 U.S.C. 1343 (fraud by wire, radio, or television).
Findings Of Fact At all times pertinent to the complaint Franklin D. Zeigler held Funeral Director's license no. 1789 and Embalmer's license no. 1986, held with the State of Florida, Department of Professional and Occupational Regulation, State Board of Funeral Directors and Embalmers. On July 29, 1977, the Respondent was sentenced to four years in prison for violations of Title 18 U.S.C. 371, 1341, 1342 and 1343. This judgement and sentence was entered in the United States District Court for the Middle District of Tennessee based on a verdict of guilty, arrived at in Docket No. 76-227-NA- CR. A copy of this judgement and commitment order may be found as Petitioner's Exhibit 1, admitted into evidence. These federal crimes specifically pertain to the following: 18 U.S.C. 371 (Conspiracy to commit an offense or to defraud the United States) 18 U.S.C. 1341 (Mail fraud) 18 U.S.C. 1342 (Fraudulent use of a fictitious name) 18 U.S.C. 1343 (Fraud by wire, radio, or television) Based on the action taken in the United States District Court for the Middle District of Tennessee, the Petitioner has charged the Respondent with violations of Chapter 470, Florida Statutes, pertaining to both his Funeral Director's and Embalmer's license. The action taken against his Embalmer's license is under Sections 470.12(1)(c)and (1)(k), Florida Statutes; and the action taken against the Funeral Director's license is in accordance with Sections 470.12(2)(c) and (2)(p), Florida Statutes. Section 470.12(1)(c), Florida Statutes, holds that it is a violation for an Embalmer to have been found guilty by a jury after being charged with a crime involving moral turpitude, and this is without regard as to whether a judgement of conviction has been entered by the court having jurisdiction in the case. Likewise, Section 470.12(2)(c), Florida Statutes, sets forth the violation in the same language as found in Section 470.12(1)(c) , Florida Statutes, the only difference being that this violation pertains to the license held by a Funeral Director. An examination of the nature of the judgement and commitment order for the United States District Court for the Middle District of Tennessee demonstrates that a jury or a court acting as the trier of the fact has found the Respondent guilty of crimes involving moral turpitude, and those findings establish a violation of Section 470.12(1)(c) and (2)(c) , Florida Statutes. The Petitioner failed to make any other presentation in terms of a factual allegation. Therefore, the allegations against the Respondent's license as an Embalmer and Funeral Director respectively, under the conditions set forth in Section 470.12(1)(k) and (2)(p), Florida Statutes, have not been shown because those two substantive violations are premised upon the finding that the licensee has violated any provision of the Chapter and may only be read to pertain to provisions not already addressed factually and by allegation in some other part of the complaint. In this case there was a contemporaneous allegation of violation of Sections 470.12(1)(c) and (2)(c) , Florida Statutes. Therefore, proof of a violation of Sections 470.12(1)(k) and (2)(p), Florida Statutes, does not lie.
Recommendation In the course of the hearing before the undersigned the parties were given the opportunity to present matters in aggravation and mitigation, and availed themselves of such opportunity. Having considered those representations in view of the facts in this cause, and in particular the fact that the Respondent had been held in violation of the laws of the Petitioner by a final order of December 17, 1976; which violation was similar in nature to the violation herein, and further for which violation the Respondent was given a suspended sentence; it is recommended that the licenses of the Respondent, Franklin D. Zeigler, Funeral Director's license no. 1789 and Embalmer's license no. 1986, be revoked. DONE AND ENTERED this 18th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 John London Arnold, Esquire 919 East Adams Street Jacksonville, Florida 32202
The Issue The issues are whether the allegations set forth in the separate Amended Administrative Complaints filed by the Department of Financial Services (Petitioner) against the Respondents, A Cremation Center at Horizon Funeral Home (Horizon) and Mark E. Davis, are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged under Chapter 497, Florida Statutes (2006), with regulation of funeral establishments, director/embalmers, and the sale of preneed funeral service contracts. At all times material to this case, Horizon was a funeral establishment holding Florida license FH2372, located at 1605 Colonial Boulevard, Fort Myers, Florida. At all times material to this case, Mark E. Davis was a funeral director and embalmer holding Florida license FE4335 and was employed by Horizon in that capacity. From 1999 through October of 2005, the Respondents produced "Registration Forms" which were supplied to individuals seeking to make preneed direct cremation arrangements. A registrant would complete the form and return it to the Respondents with a non-refundable fee of $48.00. Registrants received no discount when services were eventually purchased, but "locked in" the price being charged at the time the registration form was completed and returned with the $48 fee. The prices on the registration forms were the same as those charged to customers in need of the services during the time registrants submitted the forms and fees. The $48 fee was not credited to the cost of the services chosen during registration. Although there was minor variation between some versions of the document, the "Registration Form" generally contained the following language: I, the undersigned [sic] request Horizon Funeral Home & Cremation Center to record the following information. Enclosed is the $48.00 Registration Fee which will cover registration expenses, place the following information on permanent file, and FREEZE THE PRICE of the services and merchandise selected below. The form included space for the registrant to set forth personal identifying information including name, address, date of birth, social security number, occupation, and next of kin. Following the personal identification information part of the document, the form listed the prices of available services and merchandise and directed a registrant to make choices as follows: DESIGNATE YOUR WISHES: CHECK THE ITEMS YOU WISH TO RECORD. Simple Cremation $495. Cremation with Memorial Service $795. Cremation with Rental Casket & Funeral Service $2380 ALTERNATIVE CONTAINERS (Required by law in lieu of a casket) Corrugated Cardboard $95. Pressed Wood $195. DISPOSITION OF CREMATED REMAINS Scatter @ Sea $150. Pack & Ship $65. Cardboard Container, No Charge Family To Select An Urn, (Price Range $65 to $1995) The above prices do not include the following: Medical Examiner Cremation Approval Fee, Certified Copies of death certificate, classified obituary. THE REGISTRATION FEE OF $48.00 IS NOT REFUNDABLE. The registrant made selections, and then signed and dated the document. The form contained no area for Mr. Davis or any other representative of Horizon to acknowledge receipt of the form or to document any agreement to provide the services selected by the registrant. There were approximately 500 forms completed and submitted to the Respondents with the $48 fee. At the hearing, Mr. Davis testified that although there was no signature from the Respondent on the form, by his act of accepting the registration form and fee, he was agreeing to provide the services at the prices set forth on the form in accordance with each registrant's wishes. At no time have the Respondents been licensed or authorized to sell preneed contracts for final disposition of cremated human remains. Mr. Davis, an experienced funeral director, was familiar with the requirements to sell preneed contracts. He did not believe that the "Registration Forms" were preneed contracts. There was no evidence that Mr. Davis made any attempt to conceal the registration process from state regulators at any time. The use of the registration forms was observed during an investigation of the Respondents in 2004. At that time, the investigator believed that the forms were preneed contracts and drafted a complaint related to alleged unlicensed preneed contract sales, but for reasons unknown, persons who reviewed his work apparently disagreed, and the complaint was not pursued. A second investigation was initiated in November 2006 based on a complaint related to signage. The signage complaint raised concerns related to proposed transfer of Horizon ownership to a hospice organization, which was a topic of some controversy. As an investigator (not the 2004 investigator) drove to Horizon, he received a call from his supervisor which directed him to review the registration issue while was at the facility. The signage issue was resolved without difficulty. When the investigator inquired about the registration process, Mr. Davis produced the registration forms for review. The investigator believed that the forms were preneed contracts and stated so in his investigative report. The Petitioner apparently agreed and initiated the disciplinary process at issue in these cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that the Respondents committed the statutory violations identified herein and issuing a letter of reprimand. The final order should additionally require that the Respondents execute a document to be prepared by the Petitioner, which specifically obligates the Respondents to provide to each registrant the services selected at the prices stated on each registrant's form, and providing a mechanism for enforcement of the obligation. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2007. COPIES FURNISHED: Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Casia R. Sinco, Esquire Elizabeth Teegen, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
Findings Of Fact Petitioner is the governmental agency responsible for licensing funeral home directors and embalmers. Respondent is currently licensed as a funeral home director and embalmer under license number FE 0001751. On February 5, 1993, Petitioner conducted a routine inspection of Burrell's Funeral Home (the "funeral home"). The funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell. Mr. Urey Burrell has never been licensed by the state as a funeral home director and embalmer. Mr. Urey Burrell was the only person present at the funeral home at the time of the inspection. The funeral home failed to maintain a casket price list and a copy of the current rules and inspection criteria. All of those documents were requested by Petitioner's inspector, and none of them were made available to the inspector. Respondent did not display his current Funeral Director in Charge license in a conspicuous place. The license was hidden behind other documents on the wall. Respondent signed blank contracts for services and left them at the funeral home for use in his absence. A forged license purporting to license Mr. Urey Burrell as a funeral home director and embalmer was conspicuously displayed on the wall of the funeral home. The operating table in the preparation room was broken and rusty. The table was broken because Mr. Urey Burrell had just embalmed a lady who was so large that she broke the table. The broken operating table was reinforced on two sides with unfinished wood. Unfinished wood is a porous surface. An operating table must be nonporous in order to avoid contamination by contagious disease and to prevent the spread of such disease to employees and others who may come in contact with the table. The preparation room was not clean and sanitary. There were piles of trash littering the room. Junk and clothes were scattered about the rooms and hallways of the funeral home. The funeral home must be kept clear of debris so that it can be easily cleaned and disinfected. This safeguards against the spread of contagious disease. Otherwise, the public may be exposed to contagious disease that can be tracked out of the funeral home. The floor of the funeral home was dirty. Baseboards were splitting from the walls. The space between the baseboard and walls created another porous surface that can spread infectious disease. The master trocar and scalpels were rusted. A master trocar is used to aspirate cavities that can not be prepared by embalming the venous and arterial system. Instruments must be kept clean in order to avoid the spread of infectious disease. The funeral home failed to maintain an adequate supply of hardening compound. There was little or no hardening compound left in the container made available to the inspector. Mr. Urey Burrell stated that he had ordered additional compound. Hardening compound is essential to the services performed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 470.035(1)(h) and Rule 21J-30.001(4)(h), but guilty of violating Sections 470.036(1)(g) and (n) and Rules 21J-21.003(1)(b), (c), (f), (g), and (h). It is further recommended that the Final Order suspend Respondent's license and place Respondent on probation in accordance with this Recommended Order. In the event Respondent chooses no to comply with the terms of suspension and probation, it is recommended that Respondent's license be revoked. RECOMMENDED this 18th day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1995.
