Findings Of Fact In September, 1975 two sons of Mrs. Pearlene Dillard were drowned. At the hospital Mrs. Dillard selected Stevens Funeral Home to provide the burial services. Later that evening she was visited by Rudolph Gilliam who was a friend of one of her sons. Mr. Gilliam had been phoned by a roommate of one of these sons who was very upset and requested he go to Mrs. Dillard's home to assist in the funeral arrangements. At the time Mr. Gilliam was not an employee of Johnson's Funeral Home, but he had on occasion worked at the funeral home as an assistant at funerals. Gilliam is self-employed and owns a restaurant. When Gilliam talked to Mrs. Dillard and learned that she had already engaged the services of another funeral director he did not pursue the matter. However, Mrs. Dillard asked him to take her to Johnson's Funeral Home which he did on the evening of September 18, 1975. He also took her brother, a daughter, and a niece. Upon arrival at Johnson's Funeral Home Gilliam introduced Mrs. Dillard to Joe Johnson and departed the room. Johnson showed Mrs. Dillard caskets and explained to her some of the provisions relating to funeral arrangements. Thereupon Mrs. Dillard decided that she preferred to use Johnson's Funeral Home. She thereafter went to the hospital and signed a second consent to have the bodies committed to Johnson's Funeral Home. Under oath Mrs. Dillard denied that Gilliam had told her that Johnson could provide a cheaper funeral as she alleged in an affidavit that was admitted into evidence as Exhibit 2. She further indicated that she had made up her mind independent of anything that Gilliam had said and that she was happy with the arrangements that she had procured from Johnson's Funeral Home. She acknowledged that she had changed her mind before the bodies had ever been released by the hospital to Stevens Funeral Home and considered that she had the right to do so. Subsequent to this incident, Jerome Stevens, the licensed Funeral Director of Stevens Funeral Home, filed a complaint that led to these charges. His affidavit was admitted into evidence without objection as Exhibit 1. Exhibit 3, the Affidavit of Fannie Mae Goodman was admitted into evidence without objection. Therein Mrs. Goodman stated that Rudolph Gilliam came to her house three times trying to get her to take the body from Stevens Funeral Home and give it to Johnson's Funeral Home which she declined to do. Rudolph Gilliam testified on behalf of Respondent. He does not know Fannie Mae Goodman and denied any attempt on his part to request her to change from Stevens Funeral Home to Johnsons'. He was a classmate of Mrs. Goodman's daughter, and went to the house after learning of her father's death. He did talk to Mrs. Goodman's daughter but he did not talk to Mrs. Goodman. On September 19, 1975 Stevens went to Mrs. Dillard's home to inquire why she had changed the funeral services to Johnson. She told him that she had changed her mind and was going to use Johnson's for the burial services. Mrs. Dillard made no deals with Gilliam and did not discuss any funeral arrangements with him. The discussions pertaining to funeral arrangements were made between her, her brother, and Johnson. Joe Johnson testified in his own behalf. He handled the funeral arrangements for Mrs. Dillard, and Mrs. Dillard did come to his funeral home on the evening of September 18, 1975 in company with Gilliam. He stated that Gilliam was not working for him, that Gilliam did occasionally work for him as an assistant during funerals. At the funeral services for Mrs. Dillard's sons Gilliam acted as an attendant and drove a family car. For these services Gilliam was paid $10.00 for the use of Gilliam's car and $10.00 for his services as an attendant. Johnson at no time paid any commission to Gilliam or offered to pay any commission to Gilliam. Prior to the arrival of Mrs. Dillard Johnson was not in contact with Gilliam and Gilliam was not working for him. Johnson has not had enough business for the past several months to warrant the employment of any assistants other than himself and his father, who is also a licensed funeral director and embalmer. Johnson acknowledged that he placed the advertisement in the newspaper that is contained in Exhibit 4.
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 Upon consideration of the oral and documentary evidence produced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding Respondent Larkins was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued licensed numbers FE 2310, E 2310 and FD 2106. At all times pertinent to this proceeding the Respondent Anderson was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 2204, E 2204 and FD 2003. At all times pertinent to this proceeding Respondent Evans was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 790, E 790 and 672. At all times pertinent to this proceeding Respondent Stone was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 459, E 459 and 205. At all times pertinent to this proceeding Respondent Stone Funeral Home was licensed as a funeral establishment by the Board of Funeral Directors and Embalmers, having been issued license number FH 214. The corporate officers of said establishment are Fannie B. Stone, President; Rosalyn Gordon, Secretary- Treasurer; and Raymond S. Gordon, Vice-President. Raymond S. Gordon's address is the same as the Respondent funeral establishment, 2401 East Columbus Drive, Tampa, Florida. Neither Raymond S. Gordon nor Rosalyn Gordon have ever been licensed as a funeral director, embalmer, funeral director intern or embalmer intern by the Florida Board of Funeral Directors and Embalmers. James Williams was a licensed funeral director in charge of Williams Funeral Home, Plant City, Florida, between October 1979 and March 1980. Williams was never the licensed funeral director in charge of the Respondent funeral establishment. On or about October 28, 1976, the Board of Funeral Directors and Embalmers was advised that Respondent F.B. Stone had replaced William Gordon as the funeral director in charge of the Respondent funeral establishment. The Respondent Anderson replaced Respondent F.B. Stone as the funeral director in charge of Respondent establishment on August 4, 1980, and prior to that time, Respondent Anderson was the funeral director in charge of a Lakes Wales funeral home. The Respondent Anderson notified the Board of Funeral Directors and Embalmers that he was no longer the funeral director in charge of Respondent funeral establishment as of August 27, 1980. It was not until on or about October 1, 1980, that the Board of Funeral Directors and Embalmers was advised that Respondent Evans was the funeral director in charge of Respondent funeral establishment. By letter dated May 14, 1981, Respondent Larkins notified the Board of Funeral Directors and Embalmers that he was the funeral director in charge of Respondent funeral establishment as of April 1, 1981. As a normal course of conduct, affidavits of cases embalmed and bodies handled by the Respondent funeral establishment were filed with the local registrar of vital statistics, more than five working days after the end of each month The following chart sets forth the months in question and the actual date of filing of the affidavits with the local registrar of vital statistics: MONTH ACTUAL DATE OF FILING AFFIDAVIT January 1980 February 28, 1980 February 1980 April 7, 1980 March 1980 October 14, 1980 April 1980 October 14, 1980 May 1980 October 14, 1980 June 1980 October 14, 1980 July 1980 October 14, 1980 August 1980 October 14, 1980 September 1980 (Signed October 7, 1980) October 1980 (Received by Board December 1, 1980) November 1980 (Signed December 9, 1980) December 1980 January 29, 1981 January 1981 February 5, 1981 February 1981 March 18, 1981 March 1981 June 26, 1981 April 1981 June 26, 1981 May 1981 June 26, 1981 June 1981 July 9, 1981 July 1981 (Signed August 5, 1981) August 1981 November 4, 1981 September 1981 November 4, 1981 October 1981 January 3, 1982 November 1981 January 3, 1982 December 1981 January 3, 1982 January 1982 February 14, 1982 February 1982 April 9, 1982 March 1982 April 9, 1982 April 1982 May 6, 1982 May 1982 June 4, 1982 June 1982 July 12, 1982 (Petitioner's Exhibit 1) The Respondents were placed on notice, both written and oral, of the lateness of filing the affidavits of cases embalmed and bodies handled. A review of Petitioner's Exhibit 1, the affidavits of cases embalmed and bodies handled, reflects that between July 1979 and September 1979, the affidavits were signed by Elliot C. Bruton as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge. Between October 1979, and March 1980, James Williams signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge and Williams was the licensed funeral director in charge of another establishment. Between the dates of April 1980, and July 1980, Respondent Anderson signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the funeral director in charge and Respondent Anderson was employed as the funeral director in charge during this same time period at a Lake Wales funeral home. Respondent Anderson informed an investigator for the Department of Professional Regulation that affidavits for the months of April through July were signed by him and submitted based upon the request of a previous Executive Director of the Board of Funeral Directors and Embalmers. However, Respondent Anderson also informed the investigator that after submitting the affidavits he remembered that the affidavits were incorrect in certain material respects as to the embalmer, but Respondent Anderson has never attempted to amend the affidavits. While the affidavit for September 1980, lists E. Marion Evans as the embalmer and the funeral director in charge, by letter dated October 7, 1980, the Respondent Evans informed the Board that he was the funeral director in charge as of October 1, 1980. On or about November 1981, the Respondent funeral establishment amended its exterior sign to delete the name of Respondent F.B. Stone as the funeral director in charge and display instead the name of the actual full-time funeral director in charge, at that time, Respondent Larkins. In late March 1981, Dessie Alexander's son, Alfred Alexander, died and Mrs. Alexander made arrangements through Respondent funeral establishment to have her son buried. She called the Respondent funeral establishment and left word for Raymond Gordon to call her back. Raymond Gordon then called her and she told him she wanted to release her son's body to him. Raymond Gordon then came to Dessie Alexander's home and asked her to sign a release paper so that he could pick up the body at the morgue, which she signed. Raymond Gordon called her later and asked her to come to the Respondent funeral establishment to make funeral arrangements. She and her family arrived at the Respondent funeral establishment and, with the assistance of Raymond Gordon, chose a funeral casket. Raymond Gordon took the family to the cemetery to purchase a cemetery lot for the burial. At the Respondent funeral establishment, Raymond Gordon assisted the family in determining the exact funeral arrangements necessary. Marion Evans, although present at the funeral establishment building at certain times, was not involved in the formulation of the funeral arrangements and did not act in a supervisory capacity over Raymond Gordon. Raymond Gordon wrote the funeral purchase contract, and after determining and itemizing the charges, had the family sign the contract. At the funeral service of Alfred Alexander at a local church, Raymond Gordon and Rosalyn Gordon were present, with Ms. Gordon making the payments to the pianist and minister while Raymond Gordon coordinated the funeral services. Respondent Evans was not involved in conducting the funeral service of Alfred Alexander. During this time period, Respondent Evans was the funeral director in charge of the Respondent funeral establishment. Thelma Collins utilized the Respondent funeral establishment on April 29, 1981, when her son, Anthony Bethea, died. Ms. Collins spoke with Raymond Gordon and then he, Stanley Larkins and another unidentified person came to her home. Raymond Gordon spoke with Ms. Collins at her home. At this time, Ms. Collins and Raymond Gordon discussed picking up the body, the time of death and other information concerning the deceased. Ms. Collins' funeral purchase agreement, Petitioner's Exhibit 4, was executed at the Respondent funeral establishment and was drafted, discussed and explained by Raymond Gordon to Ms. Collins when no other employees or agent of the Respondent funeral establishment was present. The funeral service was conducted at a local church and Raymond Gordon, Rosalyn Gordon and an unlicensed workman for the Respondent funeral establishment attended. Ms. Collins does not remember the presence of Respondent Larkins at the funeral service. Marie Butler's sister, Cora Evans, died in January 1980, and the Respondent funeral establishment handled the funeral arrangements and services. Raymond Gordon arranged the funeral service, determined prices and contractual terms and conditions, assisted in determining the arrangements to be made for the funeral service, and conducted and directed the funeral services at the church and grave site. In June 1980, when Respondent Larkins was the registered funeral director in charge of the Respondent funeral establishment, Marie Butler's brother died. Raymond Gordon again personally handled all the funeral arrangements and services by arranging the funeral service, determining prices and contractual terms and conditions, assisting in determining the arrangements to be made for the funeral service, and conducting and directing the funeral services. Respondent Larkins was physically present during most of these activities but did not directly supervise the arrangements of the funeral services. Virgilio O'Farrell died on May 11, 1981, during the time that Respondent Larkins was the funeral director in charge of Respondent funeral establishment. Gail Blackman arranged the funeral services for Mr. O'Farrell through Respondent funeral establishment. Ms. Blackman did not recall dealing with Respondent Larkins in arranging the funeral services through Respondent funeral establishment, but dealt instead with two unknown men from the Respondent funeral establishment. Respondent Larkins testified that during his employ at Respondent funeral establishment, April 1980 through the present, he has been the only licensed funeral director representing the Respondent funeral establishment. Respondent Larkins remembered the Thelma Collins' transaction. On this occasion as well as others, Raymond Gordon was present but Larkins did most of the talking regarding the funeral arrangements. He remembered this particular case because it was the first funeral arrangement he handled in Progress Village. The affidavits of cases embalmed and bodies handled were late in being properly filed due to the fact that Raymond Gordon was acting as the courier of the affidavits and he failed to timely post the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered placing the Respondents Larkins, Evans, Anderson, Stone and Stone Funeral Home on reporting probation for a period of two years and imposing an administrative fine of $750 per Respondent. During the probationary period, the Respondents should be required to regularly certify to the Board that they are complying with all requirements of Chapter 470, Florida Statutes in a timely and accurate manner. DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1981.
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 James E. Collison is a licensed embalmer and funeral director, and Collison Memorial Chapel, Ltd., is a licensed funeral home holding licenses issued by the Board of Funeral Directors and Embalmers. Orange County Memorial Society (OCMS) is a nonprofit corporation. OCMS exists for the purpose for providing information and assistance to its members on low-cost funeral arrangements. OCMS has approximately 750 members and is funded through their small initial membership or transfer fee. Thomas E. White, who is employed full-time as an engineer by Stromberg Carlson was president of OCMS at all times relevant to this complaint. His wife, Helen, was secretary of this organization. At the time White assumed the presidency of OCMS, OCMS had existing arrangements with two local funeral homes. Upon joining, members were assigned to one or the other of these establishments, based upon the members' geographical residential location. Both the establishments provided the same services at essentially the same prices. Prices for various services from these homes had been made available to the members of OCMS. Mr. White was concerned about the geographic assignment of OCMS members and desired to alter this arrangement and allow members to choose the funeral home which they desired. In approximately August of 1976, James Collison contacted Mr. Harris, the attorney for OCMS, one of the original incorporators, and a former president of the organization. Collison advised Harris that he desired to participate with OCMS in providing services to its members. Mr. Harris wrote Mr. White, who eventually contacted Collison to discuss Collison Memorial Chapel's participation. In this regard, Collison provided Mr. White a list of funeral services which Collison Memorial Chapel could provide together with cost in a letter dated September 4, 1976. Mr. White and another member of the Board visited with Collison and inspected Collison Memorial Chapel. Thereafter Mr. White presented Collison's proposal to the Board of Directors of OCMS. Collison's offer was accepted, and this fact was subsequently communicated to Collison by White. At this time, Collison was advised that OCMS would advise its members of Collison Memorial Chapel's participation by letter when the notice of the organization's annual membership meeting was mailed. An earlier mailing could not be made by OCMS due to a lack of funds. Collison desired to make Collison Memorial Chapel's participation immediately known to the membership of OCMS, and offered to White to pay for the additional mailing. Mr. White accepted this offer, feeling that this was in the best interest of the membership of OCMS and permitted earlier implementation of his plan to permit members to choose the funeral home with which they desired to make their arrangements. The mailing was handled solely by White and his wife, and at all times, OCMS, through its president, maintained total control of the content of the materials sent to its members. This mailing contained a letter from Mr. White to the members, a comparative list of services and prices offered by the three participating funeral homes, a stamped, self-addressed envelope to Collison Memorial Chapel, and a form indicating that members desired to change his or her selection of a funeral home to Collison Memorial Chapel. The letter to the members was composed by Mr. White. The comparison of services and prices was prepared by Collison at Mr. White's request. The change form was prepared by Collison; however, both Mr. and Mrs. White stated that they had made some minor changes in its format after they received Collison's draft copy. White, in response to the specific question regarding why the form had not been prepared to permit a member to change between the two other participating funeral homes, stated that he had not mailed the form in that format because he did not believe any of the members would elect to change their membership among the two original participating homes. The fact that Collison obviously wanted communicated to the OCMS members was the fact that his funeral home was participating with OCMS because the prices which were quoted to OCMS members were the same being advertised to the public generally. White, as president of OCMS, desired to implement his project of permitting freedom of selection among members of OCMS, and to advise members that Collison's funeral home was now a participating home. Collison's offer was a means to both White's and Collison's objections. The Whites had the material printed, prepared the mailing, and sent Collison a statement of cost of the mailing. Collison paid these costs in the amount of $191.87 directly to OCMS. As a result of this mailing, approximately thirty (30) of the 750 members elected to change their arrangements in favor of Collison Memorial Chapel, Ltd. Several others elected to make other changes by contacting White and having new forms sent to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against James E. Collison and Collison Memorial Chapel, Ltd. be dismissed. DONE and ORDERED this 1st day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: W. Thomas Lovett, Esquire Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801 Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202 Mr. R. C. Blanton, Coordinator Funeral Directors and Embalmers Suite 208, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
