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.
The Issue The three administrative complaints in these consolidated cases allege various violation of Chapter 470, Florida Statutes and Chapter 61G8-21, Florida Administrative Code, which regulate funeral directors and the operation of funeral establishments. Specifically, these violations are alleged: Section 470.024(2), Florida Statutes: operating a funeral establishment without a license; Sections 470.024(6), 470.036(1)(h), Florida Statutes and rule 61G8-21.00F(1), Florida Administrative Code: not being available to the public during normal business hours; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(3), Florida Administrative Code: not having the funeral director’s photograph with the license; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(1)(b), Florida Administrative Code: not having the latest inspection reports available for inspections upon demand; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.005(1)(c), Florida Administrative Code: not having a current copy of inspection rules or criteria available for inspection upon demand; Section 470.035(1), Florida Statutes: not having retail price list available upon inquiry; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(6), Florida Administrative Code: not having the name of the establishment and name of the funeral director displayed at the public entrance; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(1)(b), Florida Administrative Code: not having sanitary floors; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.003(5), Florida Administrative Code: not having prices conspicuously marked on the caskets; Section 470.036(1)(a) and 470.031(l)(f), Florida Statutes: employing an unlicensed person in the practice of funeral directing, embalming or direct disposition; Section 470.036(1)(n), Florida Statutes: aiding and abetting an unlicensed person in any licensed activity; and Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.007(3), Florida Administrative Code: failing to insure that all employees comply with laws and rules of the Board. The issues in this proceeding are whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent James B. Kerney, Jr. has been a licensed funeral director in the state of Florida for approximately 28 years, having been issued license number FE 0001557. He has been director in charge of Kerney Funeral Home in Sebring, Florida for approximately 27 years. The business is owned by him and his wife, Nancy Kerney, and is a licensed funeral home, having been issued license number FH 000182. Mr. Kerney is confined to a wheelchair as the result of an automobile accident on December 6, 1993, in which his right leg and his neck were broken. His left leg had been amputated in 1986. Mr. Kerney also requires kidney dialysis, and on Tuesdays, Thursdays and Saturdays he is transported to a renal center where he spends three hours and fifteen minutes in each session. Nancy Kerney describes her husband as “...medically- termed incomplete quadriplegic, which means that he can use his hands to some extent, but he needs assistance with everyday tasks of using his hands.” (transcript, p. 118) Mrs. Kerney is his sole caregiver; she must bathe and dress him with the assistance of an automated lift. She also has a power of attorney which permits her to sign documents on her husband’s behalf. From January 1989 until August 1995, Frank Paolella was employed as an inspector for the Department of Business and Professional Regulation, conducting inspections of various facilities regulated by that agency, including funeral homes. On February 28, 1995, after calling for an appointment the previous day, Mr. Paolella visited Kerney Funeral Home for a routine inspection. Mrs. Kerney met the inspector at the funeral home and opened the office for him. Mr. Kerney was not present. During the course of the inspection, Mr. Paolella observed that the establishment license had expired on November 30, 1994 and had not been renewed. He also observed other violations which he noted on his inspection form: there was no photograph of the funeral director displayed on the director’s license; there were numerous dead roaches on the floor; and the names of the establishment and funeral director were not displayed at the public entrance (noted as a second-time violation). In addition, when the inspector requested certain documents, neither he nor Mrs. Kerney could find them in the office. These missing documents included a copy of inspection rules or criteria, copies of signed need and pre-need contracts, copies of final bills or written agreements, and an itemized price list of merchandise and services with the establishment’s name, address and telephone number. After the inspection, both Mr. Paolella and Mrs. Kerney signed the inspection form. Mr. Paolella returned for a follow up inspection on March 21, 1995. This time he arranged to meet Mr. Kerney at the Kerney home, a couple of blocks from the funeral home. They met at 9:00 a.m. and made arrangements to meet again at the funeral home in the afternoon after Mr. Kerney finished his dialysis. That same afternoon, Mr. Kerney arrived at the funeral home in a handicapped-equipped van driven by his wife. Mr. Kerney was unable to reach the fuse box to turn on the lights, and only with some difficulty, Mrs. Kerney was able to get the lights turned on with instructions from her husband. On this visit, Mr. Paolella again observed many violations. There were still numerous dead roaches on the floor and sheets of plaster that had fallen from the ceiling to the floor. There was no price displayed on the least expensive casket; customers’ written and signed agreements were not available; the latest inspection forms and the copy of inspection rules or criteria were not available; the funeral director’s and establishment licenses were not properly displayed and the director’s and establishment’s names were not displayed at the public entrance. In addition, the funeral home license had still not been renewed. On this, as well as the prior inspection in February, Mr. Paolella noted his concern about whether, as director in charge, Mr. Kerney was reasonably available to the public during normal business hours. On or about April 5, 1995, Mr. Kerney was admitted to Highlands Regional Medical Center and was still in the hospital a month later, on May 2, 1995. (Answer to Administrative Complaint in cases no. 94-07325 and 95-07329.) On April 28, 1995, Mr. Paolella returned to Kerney’s Funeral Home, accompanied by his supervisor, James Potter. The agency had received a complaint that Kerney’s was conducting unlicensed activity. The pair approached the front door of the establishment and found it ajar, with lights on inside. They knocked and shouted out their presence, but there was no answer; they entered and proceeded to the back rooms, thinking that the inhabitant must be in the back, out of hearing range. The last room in the back is the preparation room. There they found a body laid out on the table, but no living person was present. Concerned that there may have been a problem, the inspectors went to the Sebring police station and returned to the Kerney Funeral Home with two policemen, a sergeant and a photographer. There was still no living person on the premises and the photographer took a series of photographs. The photographs accurately reflect what Mr. Paolella observed on the April 28th inspection: many dead roaches on the floor, fallen plaster from the ceiling, opened bottles and jugs of unidentified liquids, a dirty sink, tools and instruments laid out on a dirty linen, hairbrushes and combs with hairs still embedded, and the body laid out, covered except for the head. A photograph of the exterior of the building shows a permanent sign in the lawn, separate from, but in front of the building, with the name “Kerney Funeral Home”. The inspectors called the Kerney residence and Mrs. Kerney came to the funeral home. She opened the office and responded to questions. She said the Mr. Kerney was in the hospital and their son, James Kerney, III, had picked up the body and had embalmed it. The inspectors called another funeral home and arrangements were made to have the body picked up and a service and burial conducted. Mr. Kerney concedes that the funeral home license was allowed to lapse and he sent the check to renew it after the inspection by Mr. Paolella. From the end of November 1994 until the handling of Mr. Johnson (the corpse found by the inspectors) in April 1995, the home did not handle any bodies, according to Mr. Kerney. He submitted monthly affidavits to the agency reflecting this non-activity, but there is no monthly affidavit on file for the month of December 1994. By April, the license was apparently renewed. Mr. Kerney also concedes that there are long periods of time during which he is not able to be at the funeral home. The business phone rings at his residence and he arranges to meet clients at the facility. He sold Mrs. Johnson the casket for her husband by dealing with her by telephone from the hospital. He denies that he told his son to embalm Mr. Johnson, but Mr. Kerney could not explain how the body did get embalmed or why it was at his establishment unattended. Mr. Kerney signed the Johnson death certificate as the funeral service licensee. Mr. Kerney insists that he is able to embalm bodies from his wheelchair. He mixes the fluid and makes the incisions or he directs someone in his presence to perform these tasks. According to Mr. Kerney, he deliberately left roaches on the floors because after he set off aerosol sprays he let the poison keep working before cleaning up the bugs. He attributed the fallen ceiling to a water leak caused by the upstairs tenant. He also claimed that the other violations found by the inspectors were just temporary lapses and that all of the problems were quickly corrected. It is evident that serious violations occurred and that Mr. Kerney has to rely on his family, his son and his wife, to perform functions for which he is responsible. Neither Mrs. Kerney nor James Kerney, III are licensed funeral directors. Mr. Kerney is unable to spend the time at his facility to keep it in compliance with licensing regulations and criteria even if he is able to personally supervise or conduct the embalming of the occasional body handled by the funeral home.
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 =================================================================
Findings Of Fact Petitioner is the governmental agency responsible for licensing funeral home directors and embalmers. Respondent is currently licensed as a funeral home director and embalmer under license number FE 0001751. On February 5, 1993, Petitioner conducted a routine inspection of Burrell's Funeral Home (the "funeral home"). The funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell. Mr. Urey Burrell has never been licensed by the state as a funeral home director and embalmer. Mr. Urey Burrell was the only person present at the funeral home at the time of the inspection. The funeral home failed to maintain a casket price list and a copy of the current rules and inspection criteria. All of those documents were requested by Petitioner's inspector, and none of them were made available to the inspector. Respondent did not display his current Funeral Director in Charge license in a conspicuous place. The license was hidden behind other documents on the wall. Respondent signed blank contracts for services and left them at the funeral home for use in his absence. A forged license purporting to license Mr. Urey Burrell as a funeral home director and embalmer was conspicuously displayed on the wall of the funeral home. The operating table in the preparation room was broken and rusty. The table was broken because Mr. Urey Burrell had just embalmed a lady who was so large that she broke the table. The broken operating table was reinforced on two sides with unfinished wood. Unfinished wood is a porous surface. An operating table must be nonporous in order to avoid contamination by contagious disease and to prevent the spread of such disease to employees and others who may come in contact with the table. The preparation room was not clean and sanitary. There were piles of trash littering the room. Junk and clothes were scattered about the rooms and hallways of the funeral home. The funeral home must be kept clear of debris so that it can be easily cleaned and disinfected. This safeguards against the spread of contagious disease. Otherwise, the public may be exposed to contagious disease that can be tracked out of the funeral home. The floor of the funeral home was dirty. Baseboards were splitting from the walls. The space between the baseboard and walls created another porous surface that can spread infectious disease. The master trocar and scalpels were rusted. A master trocar is used to aspirate cavities that can not be prepared by embalming the venous and arterial system. Instruments must be kept clean in order to avoid the spread of infectious disease. The funeral home failed to maintain an adequate supply of hardening compound. There was little or no hardening compound left in the container made available to the inspector. Mr. Urey Burrell stated that he had ordered additional compound. Hardening compound is essential to the services performed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 470.035(1)(h) and Rule 21J-30.001(4)(h), but guilty of violating Sections 470.036(1)(g) and (n) and Rules 21J-21.003(1)(b), (c), (f), (g), and (h). It is further recommended that the Final Order suspend Respondent's license and place Respondent on probation in accordance with this Recommended Order. In the event Respondent chooses no to comply with the terms of suspension and probation, it is recommended that Respondent's license be revoked. RECOMMENDED this 18th day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1995.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 470, Florida Statutes. At all times material to this proceeding, Respondent was a licensed funeral establishment in the State of Florida known as Marion Community Funeral Chapel (Community Chapel), located at 917 South Delaney Avenue, Avon Park, Florida, and issued license number FH 0001398. At all times material to this proceeding, Eloise Marion (Marion) was the sole owner of Community Chapel. Eddie J. Wyche, a 60 year old male, died while a patient in the care of Florida Hospital, Avon Park, Florida. A death certificate issued on March 29, 1995, shows the time of death to be 2:00 p.m. on March 23, 1995. Jannie L. Wyche, wife of Eddie J. Wyche (deceased), was present at the hospital at the time of Eddie Wyche's death. Jannie L. Wyche (wife) was the "legally authorized person" to direct the disposition of the decedent's body. Hospital officials advised the wife that the hospital did not have the necessary refrigeration facility to hold the dead body and that the body had to be removed immediately. Thereafter, the hospital furnished a release form for the wife to sign which legally allowed Community Chapel to remove the body of the deceased from the hospital and to transport the body to Community Chapel's place of business. Later on that same day, March 23, 1995, Marion, along with Leroy Brown, transported the body to Community Chapel. In the early evening of March 23, 1995, Marion went to the deceased mother's home to inquire about making funeral arrangements but was advised that the wife would be handling the funeral arrangements. Later on that same evening, Marion went to the wife's home to make an appointment to discuss the funeral arrangements. After Marion advised the wife that she had picked up the body, the wife told Marion "do what you have to do" or words to that effect. In response to the wife's inquiry of getting together to "make arrangements", Marion advised the wife that Marion did not have time at the moment to discuss the funeral arrangements due to a prior appointment, and because of a "viewing", which was scheduled for Friday, March 24, 1995, and a "burial" scheduled for Saturday, March 25, 1995, she would not be available until sometime between 3:00 p.m. and 6:00 p.m. on Saturday, March 25, 1995. No specific time for an appointment to discuss the "arrangements" was agreed upon at this time. Because there was nothing further, other than embalming, which needed to be done to the body, Marion interpreted the wife's response of "do what you have to do" as the wife's verbal permission to proceed with embalming the body. Marion proceeded with having the body embalmed. Although the wife and Cheryl Johnson testified that the wife did not make such a statement, I find Marion's testimony to be more credible in this regard. Previously, Marion had previously handled the arrangements for the funerals of the wife's mother and sister, and it does not seem logical that Marion would have moved forward with the embalming body without some indication from the wife to do so. Not completely satisfied with Marion's response about a time for making "arrangements", the wife, on the advice of her sister, decided to engage another funeral establishment to handle the funeral. Several hours later, the wife contacted Marion and advised Marion that she had decided to engage another funeral establishment to handle the funeral arrangements. At this time, the wife neither advised Marion as to the name of the other funeral establishment that was to handle the funeral arrangements nor give Marion any express order for the release of the body. Later on in the evening of March 23, 1995, the wife telephoned Ed Harrell in regards to his funeral establishment handling the funeral arrangements for her late husband. Harrell advised the wife to contact and advise Marion of her decision, and that he would come by Marion Community the next day to pick up the body. After talking with the wife, sometime around 10:00 p.m. on March 23, 1995, Ed Harrell telephoned Marion to advise her of the wife's decision to engage his establishment in handling the funeral arrangements. Harrell also told Marion that he had a release form to pick up the body and would be around on Friday, March 24, 1995, to pick-up the body. Upon inquiry by Harrell, Marion advised Harrell that the family owed for transporting and embalming the body. There is no evidence that a release form was presented to Marion at any time before, or at the time, the body was released to Harrell by Marion. Sometime on Friday, March 24, 1995, the wife advised Marion that Ed Harrell would be handing the arrangements for the funeral and would be by to pick up the body. At this time, Marion advised the wife that the wife owed Marion for transporting and embalming the body, and that "someone got to pay me for transporting and embalming." The amount owed was not discussed at this time. Marion did not tell the wife that the body would not be released unless, and until, the amount owed was paid. After the wife talked with Marion, on Friday, March 24, 1995, Ed Harrell attempted to visit Marion in regards to picking up the body, but Community Chapel was closed. Ed Harrell then went to the wife's home. Later that day, Harrell contacted Marion by telephone, and was informed that there was a charge of $90.00 for transporting the body and $375.00 for embalming the body which had to be paid. Marion did not tell Ed Harrell the body would not be released unless, and until, the amount was paid. On each occasion (at least three) when Harrell called Marion about picking up the body, Marion insisted that she must be paid for the embalming (there was no dispute about the transport fee), and each time Marion was told by Harrell that the wife would not pay the embalming fee. And each time that Marion was told that the wife would not pay the embalming fee, Marion would hang up the telephone. However, the more credible testimony is that Marion did not tell Harrell that the body would not be released unless, and until, the amount owed was paid. Apparently, Harrell considered Marion's hanging up the telephone as a refusal to release the body without first being paid. Although it may have been frustrating, Marion's hanging up the telephone when told she was not going to be paid, does not rise to the level of refusing an express order to release the body. On Saturday, March 24, 1995, Marion released the body to Ed Harrell, and at the same time, Respondent was paid $465.00 for services rendered. Marion assumed, based on the wife instructing Marion to "do what you have to do", that she had oral permission from the wife to embalm the body of the deceased, However, Marion neither attempted, nor was she given, written permission or authority from the wife to embalm the body of the deceased. Other than advising Marion that Ed Harrell would be by to pick up the body, there is no evidence that the wife gave Marion an express order, requiring Respondent to promptly surrender the body to Ed Harrell. Likewise, there is insufficient evidence to show that Marion refused to release the body unless, and until paid, after being given an express order by Harrell, on instructions from the wife, to release the body, notwithstanding the testimony of Ed Harrell which I find lacks credibility
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the disciplinary guidelines set out in Rule 61G8-30.001(4), Florida Administrative Code, it is recommended that the Board enter a final order finding that Respondent did not violate Section 470.036(1)(p), Florida Statutes (1993), and dismissing Count I of the Administrative Complaint. It is further recommended that the Board finds that Respondent violated Section 470.036(12)(t), Florida Statutes (1993), and that such violation was a "technical violation" requiring only a written reprimand and an assessment of an administrative fine in the amount of Five Hundred Dollars. RECOMMENDED this 26th day of June, 1996, at 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 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5940 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 Department in this case. Department's Proposed Findings of Fact. Proposed findings of fact 1-8, 10-14, 16 and 18 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed finding of fact 9, as stated, is not a finding of fact but a conclusion of law. Proposed findings of fact 15 and 17 are not supported by evidence in the record. As to proposed finding of fact 19, Respondent was paid $465.00 which was calculated as $375.00 for embalming and 90.00 for transporting. There is an error in calculating the total amount due on Department's exhibit 4 since $375.00 plus $95.00 equals $470.00, not $465.00 as indicated on exhibit 4. The evidence shows that Respondent was paid $465.00 at the time the body was released but the release of the body was not condition upon the payment. Proposed findings of fact 20 and 21 are neither material nor relevant. Respondent's Proposed Findings of Fact. Respondent elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 7, Suite 728 Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830 R. E. D. (Address of Record)
The Issue Whether Respondent's personal and operating licenses should be suspended, revoked, or withdrawn.
Findings Of Fact The State Board of Funeral Directors and Embalmers charged Respondent, Elmer E. Hewitt, as follows: The Respondent, Elmer E. Hewitt, violated Section 470.30(4), Florida Statutes, and Rule 21J7-08 of the Rules of the State Board of Funeral Directors and Emba1mers for Florida in that he permitted Evergreen Mortuary to be operated without the full charge, control and supervision of an individually licensed funeral director and licensed embalmer, and in that he suffered Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embaliningby ban improper use of his license, to wit by representing himself to be the regularly employed licensed funeral director and embalmer in charge of such establishment when he was not so employed but rather employed full time as a social worker in Miami, Dade County, Florida; The Respondent , Elmer E. Hewitt, violated Section 470.12(1)(k), Florida Statutes, in that as a licensed embalmer he violated the provisions of Chapter 470, Florida Statutes, and in particular, Section 470.30(4). The Respondent, Elmer E. Hewitt, violated Section 470.l2(2)(p), Florida Statutes, in that as a license funeral director he violated provisions of Chapter 470, Florida Statutes, and in particular Section 470.30(4). The Respondent, Elmer E. Hewitt, is listed in the records of the State Board of Funeral Directors and Embalmers of Florida as a licensed funeral director and embalmer regularly employed in charge of Evergreen Mortuary located at 325 Julia Street, Key West, Florida. Mr. Hewitt executed an affidavit on a formal application supplied by the Board stating that he was a licensed funeral director and embalmer regularly employed and in charge of the Evergreen Mortuary. Respondent also executed an affidavit in which it appears that he is a funeral director of Evergreen Mortuary and the only one licensed embalmer and funeral director employed by that establishment on a regular and full time basis. Mr. Hewitt is employed as a Social Worker I for the Comprehensive Alcohol Program, 1400 Northwest Tenth Avenue, Miami, Florida, and maintains a residence in Miami, Florida. The Board contends: (a) That the establishment operating license and the accompanying affidavits executed by Elmer E. Hewitt were false in that Mr. Hewitt was not and is not the licensed funeral director regularly employed in charge of Evergreen Mortuary and that he is not employed by Evergreen Mortuary on a regular and full time basis at his location in Key West, Florida, but rather is employed full time in Miami, Florida; That Mr. Hewitt acted as agent for or in behalf of or in furtherance of the interests of the Respondent Evergreen Mortuary in obtaining an establishment operating license; That he suffered the owners of Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embalming by improper use of his license; That Mr. Hewitt was not employed and in charge of Evergreen Mortuary within the meaning of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent, Elmer E. Hewitt, violated Sections 470.30(4), 470.12(1)(k), and 470.12(2)(p), Florida Statutes; That Respondent, Evergreen Mortuary, violated Section 470.12(4)(a), Florida Statutes, in that Elmer E. Hewitt, a person connected with Evergreen Mortuary as am employed agent, committed violations while acting as agent for or in behalf of or in furtherance of interests of Evergreen Mortuary. Respondent, Elmer E. Hewitt, contends: That he in fact has a residence in Key West, Florida; That he devotes his full time as funeral director and emba1mer to the business of Evergreen Mortuary; That although he is employed on a full time basis at the Comprehensive Alcohol Program, he fulfills his obligations to that job at night and on weekends and other times when he is not performing his duties as a full time employee of Evergreen Mortuary. The Hearing Officer further finds: That under the terms of Respondent Hewitt's employment for the Comprehensive Alcohol Program in Miami, Florida, he is required to work a 40-hour week, but there was no evidence submitted to show' that Respondent Hewitt does in fact work a 40- hour week in his employment in Miami, Florida; The evidence shows and it is found that Elmer E. Hewitt is a full time funeral director and embalmer within the requirements of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent Hewitt is employed by Evergreen Mortuary on a regular basis as required by the statutes and the Rules of the State Board of Funeral Directors and Embalmers; That air transportation and telephone service from Miami to Key West provide current information and valid transportation so that the business of Evergreen Mortuary can be conveniently performed even though Respondent Hewitt may be in Miami, Florida.
Recommendation Dismiss the proceedings for the suspension of Elmer E. Hewitt, licensed funeral director and embalmer and dismiss the petition for revocation of the operating license of Evergreen Mortuary. DONE and ORDERED this 12th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth Norrie, Esquire Counsel for Petitioner Robert I. Spiegelman, Esquire Counsel for Respondent =================================================================
