The Issue The issue is whether Petitioner's application for licensure as a funeral director and embalmer should be denied on the grounds set forth in the Board of Funeral, Cemetery and Consumer Services' March 1, 2019, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Charles Williams, born on February 12, 1976, attended Gumpton-Jones College of Funeral Service in Atlanta, Georgia, graduating in February 1998. Mr. Williams received his embalmer license in March 1999 and became a licensed funeral director on April 12, 1999. Mr. Williams was working as a licensed funeral director and embalmer at George H. Hewell and Son Funeral Home in Jacksonville when he was arrested in 2004 and charged with sexual battery under section 794.011(2)(a), Florida Statutes (2004), which makes a capital felony of an adult’s committing sexual battery upon, or in an attempt to commit sexual battery injuring the sexual organs of, a person less than 12 years of age. The facts alleged in the charging affidavit were that Mr. Williams committed the violation by putting his mouth on the penis of a person less than 12 years of age. Mr. Williams stipulated that his victim was an 11-year-old boy. On March 6, 2006, Mr. Williams entered a plea of nolo contendere to a charge of lewd and lascivious molestation against a victim less than 12 years of age, a life felony under section 800.04(5)(b), Florida Statutes (2006). The court adjudicated him guilty and sentenced him to 12 years in prison followed by 13 years of probation/community control upon release. His conviction under section 800.04 means that Mr. Williams is designated a sexual predator under section 775.21(4)(a), Florida Statutes. Mr. Williams testified on his own behalf via deposition. He described going to work part-time for Masters Funeral Home in Palatka in 1993, while he was still in high school. He washed cars, dug graves, and removed bodies for Masters Funeral Home while learning about the funeral business. He graduated high school in 1994, the same year he served a one-year apprenticeship at Masters Funeral Home. In 1995, Mr. Williams obtained an intern license for embalming. He served a one-year internship at Masters Funeral Home and then began his studies at Gupton-Jones College of Funeral Service in September 1996. He graduated with an associate of science degree on February 27, 1998. Mr. Williams returned to Palatka and applied for his funeral director intern license. In his deposition, Mr. Williams explained that the internship lasts one year. He performed the bulk of his internship at Masters Funeral Home. Mr. Williams also spent about one month at Hardage-Giddens Funeral Home in Jacksonville, part of the Service Corporation International chain of funeral homes. Mr. Williams described Hardage-Gibbons as an “assembly line.” He quit the job because he did not wish to employ his training working in a “factory.” He came back to Masters Funeral Home to complete his internship. Mr. Williams obtained his embalmer license in March 1999 and his funeral director license on April 12, 1999. For a time after receiving his funeral director license, Mr. Williams left the profession to work as a uniformed security guard at the Clay County Courthouse. In October 1999, Mr. Williams decided to join the United States Air Force because jobs were scarce in the funeral industry at that time. His initial enlistment was for four years but he lasted only six months. Mr. Williams testified that he did not disclose his homosexuality when he enlisted, but that word eventually got around that he was gay. Because this was during the period of the military’s “don’t ask, don’t tell” policy, Mr. Williams was granted an entry level separation from the Air Force after completing basic and security forces training. From 2000 until late 2003, Mr. Williams worked at Moring Funeral Home in Melrose. He described it as a small, family-run funeral home at which he performed every conceivable service that a licensee could, including meeting with families, embalming, digging graves, and transporting bodies. He did whatever needed doing. In December 2003, Mr. Williams went to work for George H. Hewell and Son Funeral Home in Jacksonville, another family-owned funeral home. They had two funeral homes and were very busy, going out on over 400 calls per year. Mr. Williams worked there until November 2004, when he was arrested. Mr. Williams testified that he was sentenced in 2006 and served 10 years and three months of his 12-year sentence. Mr. Williams credibly testified that he was a model prisoner. He was released on November 15, 2015. Since his release, Mr. Williams has been on sex offender probation, and will remain so until November 15, 2028. The terms of sex offender probation are fully described at section 948.30, Florida Statutes. Mr. Williams wears a monitoring bracelet on his ankle, is required to participate in a sex offender treatment program, reports regularly to his probation officer, and is restricted in terms of his proximity to children and places where children regularly congregate. Mr. Williams is required to disclose his status to prospective employers. The evidence established that Mr. Williams has abided by all terms of his sex offender probation. Mr. Williams testified that his first job upon release was at Gator Communications Service in Gainesville, where he worked answering phones for several months. He next went to work for Kirkland Enterprises, a landscape company in Green Cove Springs. Mr. Williams worked for about 10 months at Kirkland Enterprises, then took a job with Roller Die + Forming, a metal fabrication plant in Green Cove Springs. Since mid-2016, Mr. Williams has worked as a receiver and forklift operator at KeHE Distributors, a distributor of organic foods. While he was incarcerated, Mr. Williams allowed his funeral director and embalmer licenses to lapse. On May 31, 2018, Mr. Williams submitted to the Board his application for a “Combination Funeral Director and Embalmer License by Florida Internship and Examination.” The Board deemed his application complete on June 27, 2018. On March 1, 2019, the Board denied the application for the reasons set forth in the extended quotation in the Preliminary Statement, supra. At the hearing and by deposition, several witnesses testified on behalf of Mr. Williams, attesting to his abilities as a funeral director, and more generally, as to his good character. Charles Miller is a receiving lead at KeHE Distributors, supervising about a dozen stockers. He has known Mr. Williams since May 2018. Mr. Miller is not Mr. Williams’s direct supervisor, but does oversee his work from time to time. Mr. Miller testified that Mr. Williams is conscientious, punctual, helpful, efficient, and diligent. He takes his job seriously and takes direction well. He is a good communicator, a “people person.” Mr. Miller stated that Mr. Williams has a clean work record and is one of the most popular members of the workforce at KeHE Distributors. Mr. Miller testified that he knows Mr. Williams wears an ankle bracelet. Mr. Williams told Mr. Miller that he had been incarcerated for a lewd and lascivious act, but did not say with whom or whether the victim was a minor. Mr. Miller did not press Mr. Williams for details. Mr. Miller’s wife, Ruth Ann Miller, also testified on behalf of Mr. Williams. Ms. Miller met Mr. Williams at the funeral of a person who had worked with her husband and Mr. Williams at KeHE Distributors. She also saw Mr. Williams at the funeral of his sister. On both occasions, she was impressed by his demeanor and helpfulness to the mourners, even at his own sister’s service. Ms. Miller stated that she does not know Mr. Williams well but that she could be his friend. She testified that Mr. Williams is attentive and “bubbly,” and has a way of putting people at their ease. Ms. Miller knew little about Mr. Williams’s criminal past. She knew he had been in prison and wore an ankle bracelet, but she did not know why. Eric Altman is a funeral director at Johnson Overturf Funeral Home in Palatka. He is a few years older than Mr. Williams and has known Mr. Williams since they were both children in the same small town, Bostwick. Mr. Altman did not interact much with Mr. Williams until the latter showed an interest in the funeral business as a teenager. Mr. Williams went to work for the “competition,” Masters Funeral Home in Palatka. They would run into each other and talk about the business. In 2001, Mr. Altman was working at a small funeral home in Green Cove Springs that he was hoping to buy. The home was shorthanded and Mr. Altman arranged for Mr. Williams to come to work there. Mr. Altman and Mr. Williams worked together for a few months. After this stint as a co- worker, Mr. Altman did not see Mr. Williams regularly. Mr. Altman testified that everything Mr. Williams did as a funeral director was appropriate. Mr. Williams showed initiative and ensured that things ran smoothly. Mr. Altman pointed out that a funeral is a bad place to make mistakes because people never forget them. A funeral director must pay close attention to detail, and Mr. Williams did that. Mr. Williams always made a good public appearance and was very compassionate, professional, and respectful. Mr. Altman noted that even now when he sees Mr. Williams in the public eye, he is always wearing a coat and tie, making the proper appearance. Mr. Altman testified that he had been aware that Mr. Williams went to prison for 10 years but did not have any firsthand knowledge of the facts of his case. Mr. Altman stated that he would hire Mr. Williams and would have no problems working with him. Mr. Altman stated that he could see from the beginning that Mr. Williams wanted to succeed in the funeral business. “It’s kind of in our blood . . . . It’s just not for everybody . . . . It has to be in you. You have to have the heart for it. And you want to succeed and do well and be well thought of in the community and the people you serve. And he has that.” Tony Sweat is a self-employed truck driver who met Mr. Williams when they both worked for Kirkland Enterprises in 2015 and 2016. Mr. Sweat was the lead foreman when Mr. Williams was hired as a driver and laborer. Mr. Sweat joked that as landscapers, he and Mr. Williams spent more time with each other than with their families. They became friends. After both men left Kirkland Enterprises, they stayed in touch by telephone but did not see much of each other, which Mr. Sweat attributed to their living in different towns. Mr. Sweat stated that he has only seen Mr. Williams two or three times in the last six months. Mr. Sweat testified that in January 2019, his mother- in-law died. He and his wife Summer had no clue how to even begin arranging for a funeral. Mr. Sweat knew that Mr. Williams had been in the funeral business and called him for advice. Mr. Williams recommended Masters Funeral Home in Palatka and accompanied the Sweats to the funeral home to assist them with the paperwork. He came to the funeral and was a support and comfort to Ms. Sweat. Summer Sweat testified that Mr. Williams was helpful, professional, supportive, and possessed a lot of technical knowledge regarding the funeral industry. He helped select the urn for her mother’s remains, set up a website for friends and family to make gifts in honor of the deceased, and did most of the speaking on behalf of the family at the funeral. Ms. Sweat testified that this was her only real exposure to her husband’s friend but that she was very happy with everything he did. Mr. Sweat testified that he spoke with Mr. Williams about his criminal conviction. Mr. Williams told Mr. Sweat that he had been charged with molesting a little girl. Mr. Williams said that he pled guilty but did not actually commit the crime. Mr. Williams used his homosexuality as an alibi, stating that he was a gay man and would never want to molest a little girl. Mr. Sweat believed Mr. Williams’s story. When counsel for the Board showed him the actual arrest affidavit, Mr. Sweat stated, “That’s crazy.” However, Mr. Sweat then defended Mr. Williams’s lack of candor. Mr. Sweat reasoned that Mr. Williams is gay, had just been released from prison for child molestation, and was going to work with “a bunch of roughnecks” at Kirkland Enterprises. It made sense that Mr. Williams would choose to shade his story in order to avoid ostracism, or worse, from a group of co-workers who are likely homophobic. Mr. Williams was not required to give his employer the full details of his criminal activity and understandably did not volunteer the true gender of his victim. Mr. Sweat concluded his testimony by stating, “I think y’all should give him a chance, maybe . . . I mean, the business side of it--like as far as handling funerals and stuff, I--he seems to thoroughly enjoy that and is pretty decent at comforting people.” Tiffany Desjardins is Mr. Williams’s immediate supervisor at KeHE Distributors. She testified that Mr. Williams is diligent, punctual, attentive to detail, and a hard worker. Ms. Desjardins attended the funeral of Mr. Williams’s sister. Though he was not working in any official capacity, Mr. Williams assisted the funeral director, Quincey Masters, in escorting and seating the family. Ms. Desjardins noted that Mr. Williams conducted himself in a professional manner. Ms. Desjardins stated that she would not hesitate to have Mr. Williams make final arrangements for her loved ones, even in light of his criminal past. She was aware that he went to prison, that his offense involved an 11-year-old boy, and that Mr. Williams is not allowed around children. Kale Cooper is the inbound supervisor at KeHE Distributors. He is Mr. Williams’s ultimate supervisor. Mr. Cooper also was aware of the details of Mr. Williams’s offense and also stated that he would not hesitate to have Mr. Williams assist in the burial or cremation of his loved one. Paul Roach is the head of maintenance at KeHE Distributors. He attended the funeral of Mr. Williams’s sister and was impressed by Mr. Williams’s professional manner under such difficult circumstances. Mr. Roach knew that Mr. Williams had been imprisoned for the sexual molestation of an 11-year-old boy. He nonetheless stated that he would hire Mr. Williams to conduct the funeral services of his wife, son, or daughters. Mr. Roach testified that he had already entrusted Mr. Williams with the remains of a loved one. When Mr. Roach’s mother died about three years ago, everyone in his family was “too brokenhearted” to retrieve her cremated remains from the funeral home in St. Augustine. Mr. Roach asked Mr. Williams to do it. Mr. Williams put on a suit, drove to St. Augustine, and made sure that the mother’s remains were safely delivered to the family. Jennifer Brown testified that in June 2016, her father died in a nursing home in Jacksonville. Ms. Brown’s daughter, Angie Knighten, had known Mr. Williams since childhood. Ms. Knighten immediately suggested to her mother that they call Mr. Williams for assistance in making the arrangements. Mr. Williams rode to Jacksonville with someone from the Masters Funeral Home to remove the body. Ms. Brown was impressed that Mr. Williams arrived wearing a suit and also by his professional manner. Mr. Williams assisted the family through the entire cremation process. Ms. Brown stated that she lacked the words to say how much she appreciated everything Mr. Williams did for her family. Ms. Brown did not know of Mr. Williams’s criminal history at the time of her father’s death. By the time of the hearing, she was aware of the details of Mr. Williams’s offense. Ms. Brown testified that, even knowing what Mr. Williams had done, she would still not hesitate to call on Mr. Williams to handle the final arrangements for her loved one. Angie Knighten, Ms. Brown’s daughter, also testified on behalf of Mr. Williams. She had known Mr. Williams when they were children and they remained friendly through their teen years. Mr. Williams went away for about ten years. Then, in 2016, Ms. Knighten met Mr. Williams while they were both working at Roller Die + Forming. Ms. Knighten asked Mr. Williams about the ankle bracelet he was wearing and he told her where he had been for the past ten years. Mr. Williams told her that he had been convicted of lewd and lascivious assault on a child. Ms. Knighten did not pry into details, but she did ask Mr. Williams if he did it. Mr. Williams told her that he did not, but that he went to prison rather than put the child through the ordeal of a trial. Ms. Knighten stated that this conversation occurred in about 2016 or 2017 and that she had not discussed the matter again with Mr. Williams. She conceded that she had no way of knowing whether Mr. Williams was continuing to deny culpability for his crime. Quincey Masters III is the owner and operator of Masters Funeral Home in Palatka and Interlachen. Mr. Masters is a second-generation funeral director and has been in and around the funeral business for his entire life. Though not formally proffered or accepted as an expert, Mr. Masters is clearly knowledgeable about all aspects of the funeral business. His opinion regarding the appropriateness of Mr. Williams’s re-entry into the profession is deserving of special consideration. Mr. Masters testified that he first saw Mr. Williams when Mr. Williams was about six years old. Mr. Williams’s grandmother had brought him to the Baptist church for a funeral in his little black suit. In about 1993, Mr. Williams approached Mr. Masters about coming to the funeral home to learn about the profession. Mr. Williams went to work for Masters Funeral Home while still in high school and was trained in the business there. Mr. Masters testified that Mr. Williams worked for him for at least two years after graduating from high school and before getting his funeral director license. Mr. Williams was separately licensed as an embalmer and, according to Mr. Masters, was very good at it. Mr. Williams made funeral arrangements and helped conduct funerals. Even after he obtained his funeral director’s license, Mr. Williams was willing to wash cars and answer the phone at the funeral home. Mr. Masters testified that the public never sees the majority of the work done in his profession: the dressing, cosmeticizing, and placement of bodies in caskets. Mr. Masters observed Mr. Williams performing these tasks and testified that he did them well. Mr. Masters stated that Mr. Williams excelled in the public aspects of the funeral director’s job. He was always very professional when working with the public. He was caring and well-dressed. Mr. Masters stated that family members are in a vulnerable state during a time of mourning. It is important that the funeral director show an appropriate degree of concern and understanding, and Mr. Williams never failed in that respect. Mr. Masters testified that Mr. Williams did a lot of body removals when he worked for Masters Funeral Home, even before he was licensed. The removal person goes into the home, nursing home, hospice, or worksite, and assesses the layout. He must determine the best way to remove the body with the proper respect, compassion, and tenderness, whether or not the family is present to witness the removal. Mr. Masters usually sends two people to do the job, but on out-of-town removals he might send only one. He recalled sending Mr. Williams alone to Gainesville at least once. Mr. Williams always showed the proper respect and was always available to go out on removal jobs when called. Mr. Masters was aware of Mr. Williams’s crime and conviction. In fact, Mr. Masters visited Mr. Williams in prison. Mr. Masters testified that he would have no problem working with Mr. Williams in any aspect of the funeral business. Mr. Masters testified as follows, addressing his words to Mr. Williams: I believe, beyond shadow of a doubt, that you should have the opportunity to be a licensed funeral director and embalmer. I believe you have a lot to offer, to give back I don’t believe the State would have to worry one bit about you. The public would be safe. And, in all candor, and as sincere as I can say it, I believe you would be an asset to the profession once again. Teresa Perez is a licensed mental health therapist with ITM Group in Gainesville. She is specifically trained in the treatment of sexual abusers. Ms. Perez has been Mr. Williams’s therapist for sex-offender treatment for the past two years. She testified that he has made progress and is currently in the “maintenance” phase of treatment, which will be completed in March 2020. Ms. Perez stated that only a minority of her clients achieve the maintenance level of treatment. Ms. Perez testified that Mr. Williams’s risk assessments show him to be in the lowest risk category for recidivism for a sexual offense. Mr. Williams has been administered the Rapid Risk Assessment for Sexual Offense Recidivism (“RRASOR”) static risk factor tool, the STATIC-99 test, and a dynamic risk factors test, all of which indicate a low potential for a repeated offense. Ms. Perez agreed with Board counsel’s statement that the RRASOR tool suggests that Mr. Williams is part of a group having an expected recidivism rate of seven percent within five years, and a recidivism rate of 11 percent over 10 years. Board counsel placed great emphasis on the risk posed by Mr. Williams as expressed by the 11-percent recidivism rate in the RRASOR testing. The undersigned is less troubled by that statistic because of the great confidence Ms. Perez placed in Mr. Williams’s progress in treatment. The undersigned reads the 11-percent recidivism rate not as an expression of Mr. Williams’s personal risk, but as a general statistic about the subjects of the RRASOR testing. The number does not mean that every individual in the group of 100 subjects has an 11-percent risk of relapse. Rather, it indicates that the group includes 11 men who are virtually certain to be repeat offenders, and 89 who in all likelihood will not commit a repeat offense. Based upon her professional qualifications and experience, Ms. Perez seemed sure that Mr. Williams would be one of the 89. The undersigned credits her opinion. Ms. Perez testified that Mr. Williams consistently engages meaningfully in treatment. He is self-disclosing and helpful to other members of his group therapy sessions. Ms. Perez stated that Mr. Williams has consistently acknowledged that he committed a sex offense in the past. She stated that the Association for the Treatment of Sexual Offenders has in recent years questioned the utility of requiring persons receiving treatment for sexual offenses to continue identifying themselves as “sex offenders.” If polygraph tests and continued monitoring during probation prove that the client is not engaging in negative behaviors and if therapy shows the client is addressing the roots of the issues influencing his choices, then it may be counter-therapeutic to insist that the client continue to identify himself as a sex offender. Ms. Perez believes that Mr. Williams meets these criteria. Ms. Perez testified that, in her professional opinion, Mr. Williams would not pose a risk to the health and safety of the public if he were to receive a license to be a funeral director and embalmer. Ms. Perez testified that Mr. Williams has taken full responsibility for his actions in molesting an 11-year-old boy in 2004. She was unaware that Mr. Williams had, outside of the therapeutic setting, denied committing the offense. Ms. Perez stated that she intended to discuss that issue with Mr. Williams and could adjust his course of treatment in light of their discussion. On his own behalf, Mr. Williams testified that he knows a lot more about himself, after 10 years in prison and ongoing therapy, than he did at the time of his offense. He noted that a funeral director deals almost exclusively with adults and that there is almost nothing a funeral director does that is outside of the public eye. He would never be with an unaccompanied minor when performing his duties. He believed there are no triggers in the funeral service profession that might cause him to relapse. Mr. Williams testified that he poses no danger to the public. Counsel for the Board points out that funeral directors meet with families to make funeral arrangements and in the course of performing their services come into contact with family members of all ages during times of extreme vulnerability. Though this point is valid, it does not undermine Mr. Williams’s contention that he would never be alone with a vulnerable child in the course of his duties. Counsel also notes that funeral directors may make contact with family and friends in the removal and transport of the deceased, although the evidence at the hearing established that no license is required to remove and transport a body. In summary, the Board has stipulated that Mr. Williams possesses the skills, knowledge, and technical qualifications for licensure as a funeral director and embalmer. Therefore, the only issues in this proceeding are Mr. Williams’s good character and whether granting him the license he seeks would create a danger to the public. Mr. Williams presented the testimony of friends, acquaintances, co-workers, current and former employers, fellow funeral directors, and his mental health therapist, who all recommended that Mr. Williams be granted licensure as a funeral director and embalmer. Mr. Williams’s entire criminal record consists of one crime, of an especially heinous nature, for which he faultlessly served his sentence and continues to comply with all terms of his probation. Mr. Williams’s personal demeanor at the hearing and his deposition testimony bespeak a man who has acknowledged his transgression, accepted his guilt, and seeks to continue repaying his debt. Twice after his release from prison, out of understandable shame and fear, Mr. Williams did not tell the full truth about his crime, once to an employer and once to an old friend. However, the evidence supports a finding that Mr. Williams has consistently acknowledged his guilt during therapy. Ms. Perez testified that it is not uncommon for an offender’s ability to relate the truth to persons outside the therapeutic setting to evolve over time. At the time of the hearing, Mr. Williams was forthright in stating that he had committed the act of lewd and lascivious molestation of an 11-year-old boy. Mr. Masters was a particularly impressive witness. His time in the industry and his lifelong knowledge of Mr. Williams combined to make his plea on behalf of Mr. Williams’s licensure moving and convincing. However, it was not just Mr. Masters but every testifying character witness who expressed complete confidence in Mr. Williams’s reformation and his ability to skillfully perform the duties of a funeral director. Even knowing that Mr. Williams had committed a terrible crime, witness after witness stated that they would, without hesitation, employ Mr. Williams to make the final arrangements for their loved ones. The undersigned noted how often witnesses told of Mr. Williams dropping whatever he was doing to help a friend with some funeral-related need--helping to arrange and host the service, picking up the body of a recently deceased relative, assuming responsibility for the safe transport of a loved one’s ashes--without thought of remuneration. Mr. Masters and Mr. Altman spoke in terms of the funeral business having to be in one’s blood. It is a calling, a vocation that is not for everyone. The evidence presented at the hearing made clear that Mr. Williams felt this calling from an early age, pursued it with diligence and vigor, and now seeks to resume his career in the funeral industry. Mr. Williams has demonstrated his reformed good character and that his licensure would not create a danger to the public. The undersigned finds that the Board should give him the opportunity to return to his profession.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Board Funeral, Cemetery and Consumer Services enter a final order granting Petitioner's application for licensure as a funeral director and embalmer. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2019.
Findings Of Fact Respondent, Florida Mortuary Services (FMS), is a licensed funeral establishment at 1495 N.W. 17th Avenues Miami, Florida, having been issued license number FH 661 by petitioner; Department of Professional Regulations Board of Funeral Directors and Embalmers (Board). Respondent, William F. Richardt, is a licensed funeral director and embalmer having been issued license numbers FE 0001490, EM 001490 and FD 0001334 by petitioner. He has been a licensed funeral director since 1967 and is owner and funeral director in charge of the funeral establishment. Respondent, Robert Healy Jr., is also a licensed funeral director and embalmer having been issued license numbers FE 000650, EM 000650 and FD 000500 by petitioner. At all times relevant hereto Richardt and Healy were employees of FMS. A preneed contract is defined by Subsection 639.07(6), Florida Statutes, as "a contract to furnish funeral merchandise or service in the future." A funeral homed or its agents and employees is authorized to sell preneed funeral contracts if a certificate of authority is obtained from the Department of Insurance (Department). In early January 1964, the Department received an anonymous complaint by mail that FMS was offering preneed burial service contracts without having first obtained a certificate of authority. On January 27, 1984, the Department issued a letter to FMS reciting that certain information concerning the sale of preneed contracts by FMS had been brought to its attention, that Department records indicated that FMS had no license under Chapter 639, and that if the allegations were true, FMS must cease and desist from such activities until the firm complied with the law. The Department also furnished FMS with a copy of an application and the applicable law. On February 2, 1984, counsel for FMS advised the Department by letter that he had instructed his client to cease and desist such activities, and that an application to sell preneed contracts would be forthcoming. In May 1964 FMS sought the services of Funeral Services, Inc. (FSI), a holding company of funeral directors and others formed to facilitate the sale of preneed contracts and to aid funeral directors in obtaining licensure under Chapter 639. However, FSI declined to act as agent for FMS because of the earlier cease and desist order issued by the Department and because it believed that FMS had continued to advertise the availability of preneed contracts after that order had been issued. In its proposed application filed with FSI, FMS stated that no contracts for preneed funeral services had been entered into prior to its licensure application being filed. It did so on advice of legal counsel since it did not consider the services previously offered to be preneed contracts within the meaning of Chapter 639. Instead it construed them to be "pre-planning agreements" and not subject to the provisions of Chapter 639. An application was then filed by FMS with the Department on August 22, 1984. After review and processing, a certificate of authority was issued by the Department effective October 24, 1984. In its application FMS certified that there were no preneed contracts in existence which predated the October 24, 1984 registration date. Through complaints of unknown origin; the activities of respondents were brought to the attention of petitioner, who issued an administrative complaint on July 15, 1985. That prompted the instant proceeding. Records of FMS confirms and respondents conceded that during the period from 1976 through 1983, Richardt as the owner and funeral director in charge of the funeral homed and the funeral homed entered into agreements to provide funeral services and merchandise with at least 130 individuals, including the 113 listed in the administrative complaint. The agreements with consumers reflected that FMS was providing "Services for Preneed" for the particular consumer. They specifically referred to FMS providing professional funeral directing services; provision for funeral home facility use, transportation, funeral merchandise and cash advances for the funeral at an agreed upon price. The agreement itself read as follows: The foregoing contract has been read by (to) me, and I hereby acknowledge receipt of a copy of same and agree to pay the above funeral account and such additional services and merchandise as ordered by me on or before 19 . The liability hereby assumed is in addition to the liability imposed by law upon the estate and others, and shall not constitute a release thereof. The contract then contained a signature of the customer and the funeral director. Those contracts were entered into and signed by Healy or Richardt on behalf of FMS. Prior to October 1984, Richardt and FMS advertised the availability of a preneed trust plan through local telephone directories, business signs and radio advertising. In addition, approximately 20,000 advertising flyers were mailed to Broward County residents. These flyers stated that by signing up for the plan a consumer could avoid future price increases. They also stated that an installment payment plan was available, and that all monies received by FMS would be placed in a trust account at a banking institution in Miami. It also required a minimum payment of $100 in the form of a check or money order made payable to Florida Mortuary Services. Although the contract itself did not provide for refunding of the monies, the advertising flyer stated that the contract could be cancelled by the consumer. According to respondents, it was the intent of the contract to provide a guarantee of provision of the stated funeral services once the customer executed the agreement and made the required minimum down payment of at least $100. After an agreement was executed an account was set up at Amerifirst Federal in Miami with the following designation: "Florida Mortuary Services, in trust for 'Name of Customer'." Monthly bank statements showing the activity on each account were thereafter sent to FMS. If a person holding a preneed contract died, Richardt would present the banking institution with the death certificate and receive all monies in the account, including interest collected to date. Based upon the foregoing findings, it is found that the "agreements" sold or offered to be sold by respondents were in actuality preneed funeral contracts which cannot be sold unless approval from the Department of Insurance is obtained. After receiving the Department of Insurance certificate of authority in October, 1984, Richardt and FMS took all preexisting contracts and incorporated them into "new" contracts utilizing the contract format approved by the Department of Insurance. They were given new dates beginning with the date of licensure (October 24, 1984) and continuing through the end of the year. By doing so, FMS and Richardt made it appear that the contracts were entered into subsequent to the date of licensure. When the Department of Insurance conducted its annual audit of the insurance funds, it was informed by FMS that the contracts existed as of the new dates indicated on the contracts. The Department was never told about the original contracts, or the fact that such contracts were revised to meet the new Department format. Indeed, in its sworn annual statement filed with the Department, FMS represented that the first contract was entered into on October 24, 1984, and the other 129 contracts were entered into between that date and December 31, 1984. According to Richardt, FMS did not change its method or manner of transacting preneed business after October 1954, except to utilize the new contract form required by the Department. FMS continued to use the same method to create and make withdrawals from the trust account, and to provide the same contractual guarantees to the customer. Respondents maintain that the preneed agreements were just that and were not the contracts contemplated by Chapter 639. However, this position conflicts with the testimony of F. James Wylie, a Florida funeral director and administrative officer of FSI whose testimony is accepted as being more persuasive on the issue. According to Wylie, the contracts and advertising used by FMS prior to October 24, 1984, constituted the sale of preneed funeral service contracts. Wylie also opined that by engaging in this activity without a license, a funeral director was guilty of misconduct in the practice of funeral directing. Phillip S. Bennett, Jr., a preneed burial examiner for the Department of Insurance, corroborated Wylie's opinion and opined that FMS's activities constituted the sale and offering for sale of preneed contracts without licensure.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that respondents be found guilty as charged in the administrative complaint, and the licenses of respondents Florida Mortuary Services and William F. Richardt be suspended for two years with said suspension stayed and their licenses placed on probation for five years, subject to such terms and conditions as the Board deems appropriate. The license of respondent Robert Healy, Jr., should be placed on probation for two years. DONE and ORDERED this 17th day of February 1986, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 17th day of February 1986.
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 =================================================================
