Findings Of Fact From the pleadings filed herein, and argument of counsel, the following facts are determined. Petitioner filed its initial administrative complaint on August 11, 1981, alleging generally that in conjunction with the arrangement of an out-of-state funeral (1) Respondents were guilty of fraud, deceit, negligence, incompetency or misconduct in the conduct of their business of funeral directing, and (2) Respondents were guilty of misrepresentation and fraud in the conduct of their profession. Still pending are Count II, Count III (which has been dismissed this date by separate order for failure to state a cause of action without prejudice to Petitioner refiling a proper charge), and Counts IV and V (which are sought to be added to this proceeding through Petitioner's second amended administrative complaint). Petitioner accordingly sought to take disciplinary action against Respondents' licenses as funeral director, embalmer and funeral establishment. Upon a motion to dismiss being filed by Respondents, the complaint was dismissed for failure to state a cause of action. Thereafter, Petitioner filed its first amended administrative complaint on October 1, 1981, charging, inter alia, that Respondents were guilty of negligence or misconduct in the practice of funeral directing within the meaning of Subsection 470.036(1)(g), Florida Statutes. These charges again stemmed from a funeral purchase agreement entered into by Respondents on or about June 24, 1980, which required Respondents to pay from the proceeds of a funeral arranged by them a $1,250 payment to a Nebraska funeral establishment to handle the actual burial of the deceased. This payment was not made to the other funeral establishment until on or around February, 1981. Respondents thereafter filed a motion to dismiss Count I of the complaint on October 21, 1981, contending, inter alia, that Petitioner failed to state a cause of action under the facts alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents' motion to dismiss Count I of the First Amended Administrative Complaint with prejudice be and it is hereby GRANTED, DONE and ENTERED this 28th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of April, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Wilson W. Wright, Esquire 217 South Adams Street Tallahassee, Florida 32301
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 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 issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Michael W. Thomas has been a licensed funeral director and embalmer in the state of Florida, having been issued license number FE0003256. In November of 1993, Richard Hector was extremely ill and dying at A Better Way in Christ Mission in Ft. Pierce, Florida, a homeless shelter for men where he had lived and worked. In his final days, he was attended by a hospice agency. The Mission employees summoned Lena Cohens, Hector's sister, to travel from New York where she lived to Ft. Pierce to be with her brother. The St. Lucie County Department of Human Services maintains a rotation list for the funeral homes in the area to be responsible to care for the remains of indigents. Respondent was the designated business for the month of November, 1993. Under local ordinances, if there is no next of kin or if the next of kin files for indigency, the County will determine if the death is a County case and eligible for payment of burial expenses by the County. On November 15, 1993, at 2:40 p.m., Hector died at the Mission. The hospice employees advised the Mission employees that hospice would make arrangements to have his remains transported to a funeral home, and a Mission employee went to the motel where Cohens was staying to bring her back to the Mission. Someone contacted Respondent who dispatched a removal service, Tri- County Mortuary Services, to pick up the body of Hector at the Mission and transport it to Thomas & Sons Funeral Home. On November 16, 1993, Lena Cohens, Hector's sister, and Libby Piersall, one of the directors of the Mission and a friend of Hector, went to Thomas & Sons Funeral Home to make funeral arrangements. They took with them clothes for Hector to be used for his viewing and his burial. Respondent's mother, Eliza Thomas, was present at the funeral home when they arrived, and Respondent was not. Cohens and Piersall identified themselves to Respondent's mother and told her why they had come. They said they wanted a viewing of Hector for family and friends. Eliza Thomas told them that Hector would not need any clothes because they would just dig a hole, put the body in a box, and put the box in the ground. Cohens and Piersall became very upset at Respondent's mother's explanation of how the body would be handled and left the funeral home without authorizing Thomas & Sons Funeral Home to perform any services. Specifically, there was no discussion regarding embalming the body. Cohens and Piersall returned to the Mission and told Chuck Kramer, a Mission employee, what had happened at Thomas & Sons Funeral Home. Cohens told Kramer she wanted a different funeral home to care for her brother's remains. Kramer contacted Buddy Hobbs at Haisley-Hobbs Funeral Home and requested that he take over the arrangements so they could be handled in a better manner and so the family could have a viewing. Based upon what he was told, Hobbs advised Kramer that he could not do anything because the County would take over the arrangements. Hobbs explained to Kramer about the County's rotation list and that Thomas & Sons Funeral Home was on the list for November. The following morning, Piersall and Cohens went to the County's Department of Human Services to apply for County benefits for an indigent funeral. While they were there, Kramer began going through Hector's belongings at the Mission. Kramer found a bank statement and bank book showing that Hector had over $1,300 in the bank. As soon as Piersall and Cohens returned to the Mission, Kramer told them about the bank account. They again telephoned Hobbs, told him how much money Hector had, and Hobbs told them that he would make the arrangements for Hector's funeral for that amount of money. He made an appointment with them for 1:00 that afternoon, November 17. Cohens, Piersall, Kramer, and Reverend Ted Rice from the Mission went to the 1:00 appointment with Hobbs. Hobbs contacted Petitioner for guidance on how to handle the situation and was advised that he should prepare a release to be taken to Thomas & Sons Funeral Home. Hobbs prepared a release directed to Thomas & Sons Funeral Home which read as follows: I, LENA COHENS, sister of RICHARD HECTOR, Deceased, hereby authorize the release of the remains of my brother, RICHARD HECTOR, to Haisley-Hobbs Funeral Home of Ft. Pierce, Florida. The release was signed by Lena Cohens, witnessed by Libby Piersall and Chuck Kramer, and notarized. Cohens, Piersall, Kramer, Rice, Hobbs, and Victor Hankins, an employee of Haisley-Hobbs, then went to Thomas & Sons Funeral Home with the release to pick up the body of Richard Hector. When they arrived there, only Eliza Thomas was present. Hobbs told her who he was and then introduced everyone else. He gave her the release and advised her that they were there to pick up Hector's body. She told him she would not release the body and telephoned Respondent who came to the funeral home. When Respondent arrived, Hobbs gave Respondent the release. Respondent advised Hobbs that he would not release the body until after someone paid him $420 to reimburse him for transporting and embalming the body. Hobbs asked Respondent if Respondent understood what he was saying and that Respondent could not hold the body as ransom. Respondent told Hobbs that Hobbs could call it whatever he wanted but that Respondent would not release the body until after he was paid. Respondent then told the group to leave his place of business. Respondent's refusal and stated reason were heard by Piersall, Rice, and Kramer. Respondent stated no other reason for his refusal to release the body. Specifically, Respondent did not say anything about his belief that Hector was a County case. The group left Thomas & Sons Funeral Home without Hector's remains. On November 18, Hobbs called Petitioner again to advise what had happened. One of Petitioner's attorneys called Hobbs back and advised that the attorney had spoken to Respondent and that Respondent would be calling Hobbs to come and pick up the remains. Instead, Respondent telephoned the Mission and told Kramer to have Haisley-Hobbs come and pick up the body. Kramer then called Hobbs, and Hobbs sent a driver and another employee of Haisley-Hobbs to Thomas & Sons Funeral Home to pick up the body. When they arrived, Respondent refused to give them the body and told them that he would deliver the body to Haisley-Hobbs instead. Hector's body arrived at Haisley-Hobbs later that same day. In a prior administrative proceeding, Petitioner filed an administrative complaint against Respondent on April 4, 1989, alleging, inter alia, that Respondent had refused to promptly surrender the custody of a dead body upon the express order of the legally authorized person, and Respondent requested a formal hearing regarding that administrative complaint. That prior matter was subsequently referred to the Division of Administrative Hearings where the matter was scheduled for formal hearing. After the parties engaged in discovery, that administrative complaint was referred back to the probable cause panel of the Board of Funeral Directors and Embalmers for re-consideration. In that prior action, the probable cause panel determined that although Respondent had violated the statutory requirement to surrender properly the custody of a dead human body upon the express order of the legally authorized person, the circumstances surrounding that refusal dictated that that administrative complaint be dismissed with only a letter of guidance issued to Respondent. That letter of guidance, dated November 22, 1989, and sent to Respondent at Thomas & Sons Funeral Home, became a permanent record in Respondent's licensure file. That letter of guidance does not, however, constitute prior disciplinary action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and requiring Respondent to pay an administrative fine in the amount of $1,000 by a date certain. DONE and ENTERED this 13th day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 13th day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Donnette Reid, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Victor John E. Vale, II, Esquire 205 South Second Street Ft. Pierce, Florida 34950 Susan Foster, Executive Director Department of Business and Professional Regulation Board of Funeral Directors and Embalmers 1940 North Monroe Street Tallahassee, FL 32399-0754 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 =================================================================
