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
