Findings Of Fact Respondent has been licensed in Florida since December 16, 1994, as a licensed funeral establishment, holding license number FH 0002113. Edgar Harrell, who is also known as Ed Harrell, has never been a licensed funeral home director in Florida. Mr. Harrell owns Respondent and has owned at least part of Respondent at all material times. Respondent advised Petitioner of a name change. By letter dated January 31, 1995, to "Ed Harrell and Jerome Smith, Owners, Ed Harrell Funeral Home," Petitioner informed Respondent that its request for a name change had been processed and was effective as of January 31, 1995. The name was changed from "Smith-Harrell Funeral Services" to "Ed Harrell Funeral Home." The name change reflected the purchase by Mr. Harrell of Jerome Smith's ownership interest in Respondent. Petitioner's investigator conducted an inspection of Respondent's facility on March 1, 1995. He completed an inspection form reflecting the results of the inspection. The items corresponding to Count I are 134, 142, and 143. The item corresponding to Count II is 139. The item corresponding to Count III is 129. The investigator marked each of these items as not satisfactory. Item 134 is: the "funeral establishment/director providing cremation services obtaining signed declaration for disposition of remains." The form states in handwriting, "Ed signed." Item 134 references Rule 61G8-31.001(2). Item 142 is: the "customer's written agreement contains name, address, telephone number of establishment and disclosure statement." Item 142 references Section 470.035(4). Item 143 is: the "customer's written agreement dated and contains signatures of customer and funeral director." Item 143 references Section 470.035(5). Item 139 is: the "itemized price list of merchandise/services with establishment name, address and telephone available." The form states in handwriting, "Old estab[lishment] name." Item 139 references Section 470.035(1) and (2). Item 129 is: the "establishment/funeral director in charge name displayed at public entrance." Item 129 references Rule 61G8-21.003(6). The investigator marked other items as unsatisfactory on the inspection form, but these were not cited in the Administrative Complaint. Petitioner proved by clear and convincing evidence that Mr. Harrell signed an Authorization for Cremation and Disposition. The agreement was dated December 15, 1994, and Mr. Harrell signed as the "licensed representative" of Respondent. Petitioner failed to prove by clear and convincing evidence that the customers' written agreements with Respondent failed to contain the correct name of Respondent. The agreements introduced into evidence bore the name, "Smith- Harrell Funeral Services," but the agreements predated the effective date of the name change to "Ed Harrell Funeral Home." The proof was inconclusive as to blank form agreements. However, Petitioner proved by clear and convincing evidence that the customers' written agreements with Respondent were signed by Mr. Harrell, rather than the licensed funeral director. In three cases, Mr. Harrell signed such agreements on behalf of Respondent. Mr. Harrell was at all times a controlling person of Respondent. Petitioner thus proved by clear and convincing evidence that Respondent aided and abetting an unlicensed person in the practice of a licensed activity in the matters set forth above. Petitioner proved by clear and convincing evidence that Respondent was still using an old price list, with the name of "Smith-Harrell Funeral Services," at the time of the inspection. Petitioner proved by clear and convincing evidence that Respondent failed to display its name or the name of a licensed funeral director at the public entrance at the time of the inspection. Neither Respondent nor Mr. Harrell committed any fraud or deceit, nor did either party attempt to commit any fraud or deceit, in the matters set forth above. Mr. Harrell simply had failed to obtain a new price list and new name display by the time of the inspection, which was little more than a month following the approval of the name change. However, Mr. Harrell offered no excuse for signing documents requiring the signature of a licensed funeral director.
Recommendation It is RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order finding Ed Harrell Funeral Home guilty of two violations of Section 470.036(1)(h) and one violation of 470.036(1)(n) and imposing penalties of a reprimand, administrative fine of $750, and costs of the entire investigation and prosecution. ENTERED on May 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 22, 1996. COPIES FURNISHED: Susan Foster, Executive Director Board of Funeral Homes and Embalmers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Attorney Miriam S. Wilkinson Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Edgar Harrell 2435-C Fowler Street Ft. Myers, Florida 33906
Findings Of Fact Upon the evidence presented, the following findings of fact are made: Respondent Poitier is a licensed funeral director and embalmer, having been issued license numbers FE 1641, FD 1456 and EM 1641. Respondent Poitier Funeral Home is a licensed funeral establishment, having been issued license number FH 803. On the twenty-fifth (25th) day of August, 1982, at approximately 5:00 a.m., Amos Williams, a transient, suffered a heart attack at the Miami Rescue Mission, 716 North Miami Avenue, Miami, Florida. He was transported by the Miami Fire and Rescue squad to Jackson Memorial Hospital where he was pronounced dead at 6:24 a.m. and transferred to the Medical Examiner's office at 7:00 am. on said date. Cora Holland, the sister of Amos Williams, was informed of the death of her brother on Friday, August 27, 1982, at 7:30 p.m., when she received a call from Reverend Sawyer. Reverend Sawyer asked if she would be coming to Florida, and she told him she would be there late Saturday or early Sunday. Minutes later she received a call from the Medical Examiner's office of Dade County, who informed her of her brother's death again, stating that they had held the body for almost 72 hours, and the law said they could not hold the body longer than 72 hours. She said she would be in Florida soon, and they responded that they could hold the body a little longer. On August 28, Saturday, at 9:10 am., Reverend Sawyer called the Medical Examiner's office and stated that Mrs. Holland was coming to Miami on August 29 to make arrangements with the Poitier Funeral Home. Sawyer was advised that if he was acting as her agent the office would accept his signature for the release of the remains since the morgue was overcrowded. Thereafter, on that same day, Reverend Sawyer called Poitier Funeral Home and told the Respondent that he had communicated with the sister of the deceased. Reverend Sawyer told him that the sister had given him authorization to handle the remains until her arrival in Miami. The Respondent stated that when the sister arrived there if she wanted to use any other funeral establishment the body would be released to such establishment. Further, that if there was a problem financially, that Poitier agreed to furnish free the casket, flowers, clothing, hearse and a family car for the sister if she came, but the grave would have to be paid for by others. Subsequently, Reverend Sawyer executed and delivered a "Release of Remains" which authorized the release of the body to Poitier Funeral Home and granted permission to embalm and make all necessary preparations for the funeral. This release was furnished to the Medical Examiner and the body was released to the said funeral home. Upon examining the remains at the funeral home, the Respondent found putrefaction had set in. By reason of said condition, embalming was required and necessary to preserve the body for public health reasons. Ms. Holland arrived in Miami at 4:30 p.m. on August 29, Sunday, and prior to her arrival in Miami had never heard of the Respondent Poitier or the funeral establishment. A friend recommended her to Bain Funeral Home and that evening (7:00 or 8:00 p.m.) they arrived at the Bain Funeral Home where the attendant telephoned the funeral director, Barbara Caldwell, who informed Ms. Holland to return to the funeral home on Monday morning. Up through and including Sunday, August 29, 1982, she had given no one authorization to obtain the body, had given no authorization to embalm the body, and no funeral arrangements had been made. Ms. Holland arrived at the Bain Funeral Home on August 30, Monday, in the morning and discussed with Ms. Caldwell the arranging for release of the body from the medical examiner, which is when Ms. Holland remembers she learned that the body had been released to Poitier Funeral Home, a release she had not authorized. Later that same day, Respondent Poitier telephoned her in a three- way conversation with Barbara Caldwell also on the line. In that conversation, Respondent stated that if she would rather have Bain's Funeral Home handle the body, to come get the body. The Respondent also said he wanted Ms. Holland to pay him $175.00 for embalming the body, to which she responded that she had not authorized him to embalm the body. Respondent then stated to Ms. Holland that if he released the body to Bain's Funeral Home he wanted her to sign a waiver releasing Poitier, the medical examiner and Reverend Sawyer from any liabilities thereafter. At the conclusion of the conversation, Respondent Poitier demanded that she would have to sign this waiver or she would have to pay him $175.00 for embalming the body in order for him to release the body. Ms. Holland consulted Peter Kneski for legal assistance on August 31, 1984, her problem being that she wanted the body of her relative who had recently passed away to be released to Bain Funeral Home, which body was then located at Poitier Funeral Home. The complicating factor was that there was a demand by Respondent Poitier that Cora Holland pay certain monies to Respondent in order to secure release of the body. Upon Mr. Kneski's calling by telephone the Respondent Funeral Home, he confirmed that the body had been embalmed, and secondly, that Respondent Poitier was insistent that money be paid for reimbursement of expenses in order to have the body released from that funeral home. Mr. Kneski, in his second telephone conversation with Respondent on August 31, 1982, informed the Respondent Poitier of the fact that he was retained as the attorney for Cora Holland concerning the body of Amos Williams, and in his capacity as attorney for Ms. Holland made a request of Respondents to release the body to Bain Funeral Home. Mr. Kneski did not remember if, as a result of this second conversation, the body was released, but the final result was that the body was ultimately released. However, he also testified to recalling that Respondent Poitier told him the body had to be picked up by a specific time and after that time the body would not be released. Barbara Caldwell, Funeral Director of Bain Funeral Home, first met Cora Holland through a telephone conversation on Sunday, August 29, when Ms. Holland requested that Bain Funeral Home handle the funeral arrangements for her brother. Ms. Caldwell's memory is that she then called the Medical Examiner's office and learned that the body had been previously released to Poitier Funeral Home. Ms. Holland told her that such authorization for release had not been given by herself. On Tuesday, August 31, 1982, Ms. Caldwell talked with Respondent Poitier by telephone after Ms. Holland had returned from her visit with the attorney. Respondent Poitier still maintained his posture of not releasing the body without the payment of $175.00 and the release of liability. On that Tuesday evening another telephone coversation occurred between Caldwell and Poitier, the conversation occurring after Ms. Holland stated she had been advised by the attorney not to sign anything but a release of remains, and the conversation relating to this advice. Poitier's response was the same as in the past, i.e., that he wanted a release of liability, release of remains and $175.00. The final conversation occurred on Wednesday, September 1, in the evening when Poitier told them that she should come get the body. The body was then picked up. The contract between Holland and Bain Funeral Home was entered into on September 1, 1981, for funeral arrangements. Holland and Bain did not attempt to physically obtain the body until September 1 due to the fact that prior to that time the Respondent had not been furnished with a satisfactory release. Providence Padrick, Investigator for Petitioner, testified to statements made to her by Respondent Poitier during the course of the investigation. Poitier related to her that he was contacted by Reverend Sawyer, who reported himself to be a friend of the family of Ms. Holland, with Reverend Sawyer affirming he represented Ms. Holland, and that the relationship between Sawyer and the deceased was one of friendship. The authorization for release was signed by Reverend Sawyer, and Poitier said he had gone to Reverend Sawyer's home and asked him to sign the release and then Poitier proceeded to have one of the staff members obtain the body from the Medical Examiner's office. This was all accomplished by August 28, 1982. When he was asked if he had requested any type of payment for services, when the family demanded the release, he denied the $175.00 request, but he did state that he contacted Barbara Caldwell of Bain Funeral Home and told her he would release the deceased if Ms. Holland would sign authorization as next of kin and if she would sign an affidavit releasing his funeral home of any responsibility -- two separate documents. He also admitted that the funeral home had embalmed the deceased and, when questioned as to why this information had not been included in the monthly affidavit of cases embalmed, he said he could not recall who did the embalming. The deposition testimony of the Board of Funeral Directors and Embalmers Executive Director, R. C. Blanton, established that the affidavits of cases embalmed and bodies handled for the months of August and September, 1982, for the Respondent Funeral Home did not list the case of Amos Williams. It was not until March, 1983, that the affidavit filed with the Board of Funeral Directors and Embalmers listed the fact that Amos Williams had, indeed, been embalmed at that funeral home (Petitioner'S Exhibit 8). The testimony of Steve Granowitz, former inspector for the Department of Professional Regulation, established that an inspection was conducted of the Respondent Funeral Home on March 18, 1983. It was learned through that inspection that Respondents failed to conspicuously display the prices where caskets were displayed and no itemized retail price list was available to the public for its use as set forth in Section 470.035, Florida Statutes. Indeed, Respondent Poitier stated to the inspector that he did not know of the price list regulation and would get a price list made in the next 5-6 weeks. When Granowitz returned in August, 1983, he found that the caskets were in the casket room with prices posted as required.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondent guilty of violating Sections 470.036(1)(t), 470.36(1)(e), Florida Statutes, and Rule 21J-2l.03, Florida Administrative Code, and Section 470.036(1)(h), Florida Statutes, not guilty of the remaining charges, and imposing a $1,000 administrative fine. DONE and ENTERED this 18th day of July, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1984. COPIES FURNISHED: Joseph W. Lawrence, Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gus Efthimiou, Jr., Esquire 1025 Dupont Building Miami, Florida 33131 Edward O'Dowd, Executive Director Board of Funeral Directors and Embalmers 111 East Coastline Drive Room 507 Jacksonville, Florida 32202 =================================================================
Conclusions THIS MATTER came before the Board of Funeral Directors and Embalmers (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(j), Florida Statutes, on March 11, 1997, in Miami, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Leon M. Biegalski, Esquire. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the Board meeting. Upon consideration of the Administrative Law Judge's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings: EINDINGS OF FACT 14. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is competent, substantial evidence to support the Administrative Law Judge’s Findings of Fact.
Findings Of Fact Robert L. Brown is licensed as a funeral director and embalmer and Brown's Paradise Memorial, Chapel is licensed as a funeral establishment, and both were so licensed at all times here relevant. Vincent Foster was involved in an industrial accident at approximately 4:30 p.m. on Friday, August 13, 1982, while working on a building which collapsed. He was taken to Central Florida Regional Hospital, Sanford, Florida, where he was pronounced dead shortly after 6:00 p.m. The deceased was survived by his common-law wife of ten years, three children, mother and father, and several brothers and sisters. Vincent's brother, James Foster, resides in Sanford, Florida, as do his parents. James learned of the accident around 5:30 p.m., went to the construction site where he found the body had been taken to the hospital. He proceeded to the hospital, where his mother, Armetta Foster, had already arrived, and learned his brother was dead. He discussed funeral arrangements with his mother and they agreed they preferred Wilson-Eichelberger Funeral Home. That evening James called Eunice Wilson and left the message for her to call back. The following morning James went to his mother's house while awaiting the arrival of Vincent's common-law wife, Lelia May Dellafield. James and his mother agreed Lelia should make the decision about which funeral home to use. Lelia was the beneficiary of Vincent's insurance policy and was expected to pay for the funeral. Lelia tended towards Respondent's services and wanted to talk to Respondent about providing services. James then contacted Brown's assistant, Howard LaFair, and told him Lelia wanted to talk to Brown about picking up the body and conducting funeral services. James then went to the hospital where he was told an autopsy was in progress and it would be at least two hours before the body could be picked up. Leaving the hospital, he encountered LaFair in Brown's hearse and told him pickup of the body was delayed at least two hours due to the autopsy. The hospital subsequently released the body to Respondent without obtaining a release to do so from Vincent's surviving relatives. Saturday afternoon Brown came over to Lelia's apartment where James, his wife, and his mother were waiting. Upon his arrival Brown led them in prayer, following which he inquired who would be paying for the funeral services, and a general discussion followed. No specific terms were agreed upon. During this discussion Respondent told Lelia she should call him when the insurance agent arrived. Before leaving Brown advised them he would pick them up Monday to visit the casket house in Orlando to pick out a casket. Monday morning the insurance agent, who had recently sold Vincent a $5,000 life insurance policy with triple benefits for accidental death, came to Lelia's apartment and she called Brown, who came over. Brown asked questions about the policy and wanted the insurance agent to hand the policy to him. The latter refused to do so, saying the only one who could give him the policy was Lelia. When James Foster, who had left before the agent arrived, returned around 10:00 a.m., the agent had departed but Brown was still there and had possession of the policy. That afternoon Brown and his secretary took James, Lelia, and her brother to the Orange County Casket Company. Lelia was too upset to stay in the room with the caskets and remained outside while the other three looked at caskets. James testified that Brown selected the wood-grained casket stating he "wanted my boy [Vincent] to go out in style." Respondent testified that James picked out the casket and they told Lelia which one was selected and she agreed. They then returned to Sanford to Respondent funeral home where arrangements for the funeral were discussed. No contract was signed at this time. Exhibit 1, which is a contract for funeral services, preparation of body, supplies, etc., indicates it was approved by Lela[sic] Dellafield, However, Lelia testified that was not her signature. The signature on Exhibit 5, a subsequent contract with Wilson-Eichelberger funeral home was identified by Lelia as her signature. On Exhibit 5 the signature is "Lelia Dellafield." On Exhibit 1 the signature is "Lela Dellafield." Exhibit 1 first appeared when James, Lelia, and her brother returned to the funeral home from the casket house. The contract was first seen by James when he returned to the room after briefly leaving to go to the bathroom. Lelia was upset because Brown had not returned her insurance policy. When they returned to Lelia's apartment from the funeral home, Lelia told James that Brown still had her insurance policy and she wanted it back. Later that evening she told James she did not want Brown to handle the services. He advised her to so advise Brown on Tuesday. On Tuesday Brown received the word that Lelia wanted another funeral home to handle the funeral. His assistant, LaFair, telephoned Lelia to berate her for not using Brown. Respondent was out of town Wednesday when James went to the funeral home to get Lelia's insurance policy. However, Brown's secretary got Brown on the phone and James talked to him. He told Brown he wanted the policy back and he did not intend to allow Brown to take anything away from his brother's kids. Wilson-Eichelberger funeral establishment sent a car to Respondent's funeral home Wednesday to pick up Vincent's body, but LaFair would not let them have the body. He told them the funeral home was locked, Brown was out of town, and he, LaFair, would not release the body. By Wednesday evening Vincent's brothers and sisters had arrived, were told the events that had transpired, and all proceeded to the funeral home to find out why the body had not been released. Upon their arrival Brown was out of town and LaFair said he did not have a key to get in the funeral home. On Thursday the Fosters proceeded to the State Attorney's Office to instigate charges against Brown for refusing to release Vincent's body. Also on Thursday morning, Brown had returned to Sanford and telephoned Susan Foster, a Department of Professional Regulation Complaint Analyst, in Tallahassee, to inquire about his right to hold a body until he had received payment far his services. He was told by Ms. Foster that he was entitled to fees for services he had performed if such services had been authorized in writing but that he had no right to hold the body. Later that afternoon James Foster called Susan Foster requesting Petitioner's assistance in getting his brother's body released. After leaving the State Attorney's Office, the Fosters, accompanied by a TV news cameraman, proceeded to Respondent's establishment. Brown was present, as was James Golden, Brown's lawyer, who Brown testified he did not hire and did not know why he was at the funeral home on Thursday. Upon the arrival of the Fosters, Golden came out and told them Brown would only talk to Lelia Dellafield. However, the family was allowed in. During this time Lelia's policy was returned. Brown told them he wanted $3,400 for services he had performed before he would release the body. After some heated discussion Brown got up and went into his office. The others present, including Golden, thought Brown was going for a weapon and ran. Shortly thereafter Brown turned himself into the hospital with a nervous breakdown. Brown testified he called Wilson- Eichelberger on Thursday to come pick up the body but they told him they would not touch it because the state had become involved. Friday morning Brown called Winfred Burrell, a licensed funeral director. Burrell was not at home but his wife could get in touch with him and have him call Brown at the hospital. Burrell called Brown who asked Burrell to go to the funeral home and take over the job of getting the body released and to have the Fosters agree to pay for the services Brown had rendered. He gave Burrell full authority to act for Brown. Burrell arrived at the funeral home late Friday afternoon, met with the Fosters, and entered into an agreement with them to pay Respondent $300 for embalming the body and $45.00 each for two trips with the body, one from the hospital to the funeral home and one to the other funeral home. The body was delivered to Wilson-Eichelberger Friday night and the funeral was held Saturday. Lelia Dellafield has little recall of what took place immediately following Vincent's death. She does not recall specifically what she did and did not do. The only reason she maintained she did not sign Exhibit 1 is because that is not her signature on that document. In addition to the insurance policy, Lelia and her children are the beneficiaries of Vincent's worker's compensation. This is a $100,000 benefit which Lelia receives in biweekly installments from her lawyer and trustee. She has no idea how long these payments will continue. In addition to the triple indemnity insurance policy and the survivor's benefit from worker's compensation, the worker's compensation coverage also provided $2,500 for funeral services. The insurance carrier for the construction company for whom Vincent worked is Florida Farm Bureau Insurance Company (FFB). FFB paid the bill for services in the amount of $2,366.50 to Wilson-Eichelberger. Later FFB received a letter from the attorney for Lelia asking for payment of the $390 paid to Brown and FFB wrote to Brown asking if that amount was correct. FFB then paid the balance of the $2,500 (less the $2,366.50 paid to Wilson-Eichelberger) or $133.50 to Lelia. Upon receipt of the inquiry from FFB Brown prepared a bill for services performed for Vincent Foster in the amount of $1,170 and forwarded it to FFB for reimbursement (Exhibit 4). Brown testified he did not expect to get paid for the services listed in the bill, which included arranging, supervising, and conducting a funeral, but sent it in because FFB "asked him to."
Findings Of Fact Dale Woodward, the Respondent, holds Funeral Director's License No. 671 and Embalmer's License No. 536 at the present time, and during the times pertinent to 1978 and January through 1979. The Respondent Dale Woodward is the owner of the Dale Woodward Funeral Home of Holly Hill, Florida. The Dale Woodward Funeral Home holds an establishment operating License No. 123. During all times relevant to the allegations in the complaint, Ricky Charles Vyse and Richard G. McCafferty were employees of Dale Woodward and the Dale Woodward Funeral Home. In early 1978, one Howard McMurray made arrangements with Dale Woodward for his own funeral seven to eight months prior to his death. Mr. McMurray stated that he would prefer to have his funeral similar to that of his wife, which arrangements had earlier been handled by the Dale Woodward Funeral Home. On December 19, 1978, Howard McMurray passed away and his body was delivered to the Dale Woodward Funeral Home. On the morning of December 20, Violet Eggleston, his executrix, and her husband Raymond, came to the funeral home. Mrs. Eggleston was met by Mr. Woodward and Mr. McCafferty and introduced to Mr. McCafferty by Mr. Woodward. Although Mrs. Eggleston stated in her deposition (Exhibit 12) that she did not meet Mr. Woodward upon coming into the funeral home, she did state that he might have been painting or hanging wallpaper and that she would not have recognized him with painting clothes on and in fact Mr. Woodward's testimony establishes that he was painting the funeral home that day and was dressed in old clothes and his presence at the funeral home on that morning is corroborated by Mrs. Eggleston's later statement that Mr. Woodward introduced her to Mr. McCafferty at the time they began to discuss funeral arrangements. Mr. McCafferty was introduced to Mrs. Eggleston and obtained some information for the preparation of death certificates as well as for Mrs. Eggleston's desires regarding arrangements for funeral services. Mr. McCafferty also assisted Mrs. Eggleston on behalf of the family in making funeral selections from the Respondent's stock of caskets and urns. Mrs. Eggleston was not the person considered in sole charge of arranging for Mr. McMurray's funeral in that she was not the next of kin, rather the deceased's daughter Diana Keeley apparently had some responsibility in arranging for the funeral, although Mrs. Eggleston was primarily responsible for making the subject arrangements and indeed paid for the Respondent's services herself. Mr. McCafferty did not complete a sale of a casket or urn to Mrs. Eggleston, although she did select a salix casket that day. These preliminary negotiations and discussions of the funeral arrangements and the obtaining of a casket engaged in by Mr. McCafferty with Mrs. Eggleston were at the direction of Respondent Dale Woodward, the subject licensed funeral director, and Mr. McCafferty himself was not present at the funeral. On or about December 22, 1978, the same day, Mrs. Eggleston signed an authorization for the cremation of the body of Howard McMurray and he was subsequently cremated at the Cedar Hill Crematory in Daytona Beach, Florida. The body was removed from the casket in which it had been placed for viewing and was cremated in a cardboard cremation container, The value of that cremation container or the sales price, was substantially less than that of the $865 casket. Neither Mrs. Eggleston nor Diana Keeley, the decedent's daughter, ever gave any written instructions regarding the manner of cremation of the body of Howard McMurray as to the container which should be used, nor does the record reflect that any written instructions or understandings passed between these two ladies and Mr. Woodward or his employees. Mrs. Eggleston's instructions regarding the cremation were verbal and made no provision for the type container to be used in the cremation process. Ricky Charles Vyse was employed by the Dale Woodward Funeral Home on or about June, 1978. At that time, and at times subsequent thereto, he represented that he was qualified to embalm human bodies as an apprentice or intern embalmer in that he had submitted papers registering him for such internship to the Florida Board of Funeral Directors. Dale Woodward and Dale Woodward Funeral Home believed and relied upon that representation, thus permitting Ricky Vyse to assist or participate in embalming procedures. The Respondent Dale Woodward supervised any embalming procedures in which Ricky Vyse participated. Particularly, Dale Woodward did virtually all cosmetic work, including that in the cases involving the decedent, Howard McMurray, as well as with regard to the funeral and embalming of Mary Salvonge. Further, evidence adduced at the hearing revealed that Ricky Vyse had never actually been registered as an intern embalmer with the Board of Funeral Directors and the testimony of four of Respondent's witnesses revealed that Ricky Vyse had been detected on a number of occasions stealing office records and various items of property from the funeral home, including an embalming machine, a Beethoven bust, a desk globe, and other items. After repeated warnings, the Respondent Dale Woodward through his employees Franklin Muffley and Richard McCafferty terminated Ricky Vyse's employment. It was evident from the demeanor of Ricky Vyse on the witness stand that he was a disgruntled employee and hostile former employee of the Respondents, and that be approached the State Attorney in January, 1979 with accusations against Dale Woodward and the Dale Woodward Funeral Home involving violations such as those involved herein. The record reflects that no prosecution was initiated by the State Attorney's office. Franklin Muffley is the internal auditor and bookkeeper for the Dale Woodward Funeral Home. As such he is responsible for the billing in cases such as the McMurray case. It is his practice and custom to gather all figures and data regarding funeral arrangements, verify them and routinely mail a statement within approximately two weeks following a funeral service. In the McMurray case however, the executrix, Mrs. Eggleston, made payment on the day the funeral arrangements were made before any written itemization for funeral services to be rendered was finalized or verified by Muffley. As a result, after having been shown the salix casket priced at $865, she proceeded to pay for the casket, as well as for the other arrangements for a total of $1,785. The record is not clear whether Franklin Muffley or Richard McCafferty who were privy to the discussions of arrangements and price with Mrs. Eggleston that morning knew that the decedent would be cremated in a cardboard container. Dale Woodward, the Respondent in this case, did not learn of the fact that Mrs. Eggleston had been billed for the casket which was not used in the ultimate disposition of the body of Mr. McMurray until approximately three months later, in about March of 1979, when, as it was his regular custom and practice, he instituted his quarterly review of his business's billing and receipts. Having been closely acquainted with the McMurray family and being aware of the arrangements Mrs. Eggleston had requested for Mr. McMurray's funeral (i.e., cremation), Mr. Woodward detected an error in billing due to the charge for the casket which was not ultimately used except for display purposes. Mr. Woodward thereupon immediately made a refund to Mrs. Eggleston of $805 representing the price charged her for the casket less the $60 charge legitimately due and owing for the cardboard cremation container. Dale Woodward and Dale Woodward Funeral Home have been in operation and licensed approximately 25 years and have never been the subject of such complaints and charges heretofore. The Respondents Dale Woodward and Dale Woodward Funeral Home, as established by the four "character witnesses," enjoy a good reputation for truth and veracity in the community
Findings Of Fact Respondent is a licensed Funeral Director and Embalmer. Respondent was a full-time employee of State Society for Cremation, Inc.; hereinafter referred to as the Society. Respondent's duties included picking up the deceased, transporting the deceased to the crematory, placing the deceased in a lined (container), placing the deceased in refrigerated storage for 48 hours as required by law, contacting the family, preparing paper work, signing death certificates, obtaining cremation permit, supervision cremation and disposal of the remains. Respondent's picture together with information about the Society was published in a local paper as an advertisement. (See Plaintiff's' Exhibit D.) Respondent did sign death certificates in block 25b; FUNERAL DIRECTOR, and the name of State Society for Cremation, Inc., was entered in block 25a, FUNERAL HOME - NAME AND ADDRESS. Respondent called upon Mabel Jensen and Leonard Jensen and obtained their signatures on two contracts upon payment of $22 each, however, according to the Society's President, the Society never used door to door solicitation. The Society maintains a specific location for the preparation and maintenance of dead human bodies prior to cremation and for its crematorium. The Society did actively seek business by various means of directly contacting individual members of the public to include direct mailings and telephone solicitation, although telephone solicitation was stopped in October 1975.
Recommendation The Hearing Officer based on the foregoing findings of fact and conclusions of law recommends that the Respondent's license be revoked with consideration for reinstatement in six months. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Douglas R. Evenue 4114 11th Street North St. Petersburg, Florida 33701 Mr. R. C. Blanton, Jr. Executive Secretary State Board of Funeral Directors and Embalmers Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 G. Kenneth Norrie, Esquire 1300 Florida Title Building Jacksonville, Florida 32202
Findings Of Fact The Respondent is a licensed funeral director and embalmer holding license numbers 1231 and 1250 respectively. Clarence Quinn, a policeman employed by the Delray Beach Police Force testified that he has known the Respondent for approximately 35 years and at one time lived with the Respondent for an extended period of time. He testified that during the funeral of his mother on or about May 20, 1976, he encountered numerous problems in attempting to make the necessary funeral arrangements. He testified that the Respondent stayed in a drunken state for a two day period beginning May 21 and that due to his inability to make satisfactory arrangements with the Respondent, he had to remove his mother's body to another funeral home to make the necessary embalming and funeral arrangements. Messr. Quinn encountered similar problems with the Respondent during the funeral of his nephew during 1972. Lillian Rohming, Respondent's sister, also corroborated the testimony of Quinn and testified that he is suffering from an alcoholic problem which is, in her opinion, destroying him as a person and impairing his ability to function as a funeral director and embalmer. Messr. Hamon Thompson, presently employed by Meking Industries, was formerly employed by Respondent for approximately 8 or 9 years. During this period of time, he assisted the Respondent in making funeral arrangements and performed general staff duties 3 to 4 hours daily during afternoon and evening hours. He testified that it was not uncommon for the Respondent to remain in an intoxicated state frequently for periods lasting 3 to 4 days. To the best of his ability, he discouraged the Respondent and others from bringing alcohol on the premises. This was done, based on his observation of the Respondent's performance and/or lack thereof when he imbibed alcohol. He testified that without question, the Respondent is one of the more excellent embalmers and funeral directors in the area while sober but that within the last few years, he consumes alcohol excessively which has been detrimental to his performance as an embalmer and funeral director. He, like other witnesses who testified, including Lauren Braxton, Respondent's sister, Joseph Harrington, an acquaintance of Respondent's for approximately 20 years and Joe Poiter Jerkins, another of Respondent's sisters, all testified as to the severity of Respondent's alcoholic problems. The evidence is that while drinking alcohol, the Respondent is generally unresponsive to the requests of families during funerals; he occasionally lies down in empty caskets; he blows the siren while mourners including family members are viewing bodies and he occasionally interrupts funerals when, in the Respondent's opinion, the funeral ceremony lasts too long. James E. Shelton, an assistant of Respondent for numerous years, testified that based on his relationship with the Respondent, he (Respondent) has conducted himself in a mannerable fashion and that alcoholism is in no way a problem which affects the Respondent's ability to function as an embalmer or funeral director. He testified that although it is true that the Respondents business has fallen off recently, he attributes this decline due to conflicts respecting the ownership of the business. Based on the foregoing findings, I am constrained to conclude that the evidence compiled herein necessarily compels a conclusion that the Respondent is an habitual drunkard as alleged in the administrative complaint filed herein and I shall so recommend. Consideration was given to the contrary testimony of witness Shelton and Respondent's wife, Ester B. Poitier. However, on balance, the weight of evidence supports a finding that the Respondent is suffering from an alcoholic problem which has hampered his ability to function as a licensed embalmer and funeral director. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's license to practice as a licensed embalmer and funeral director be revoked. ENTERED this 17th day of March, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones & Gay Florida Title Building Jacksonville, Florida 32202 Hartman Delano Poitier 379 South Dixie Highway Deerfield Beach, Florida 33441 Ronald T. Giddens, Secretary-Treasurer State Board of Funeral Directors and Embalmers 6501 Arlington Expressway, Suite 208 Jacksonville, Florida 32211
