Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that (1) Respondent Randell E. Aultman be found guilty of violating Sections 470.036(1)(e) and (o) on three occasions by reason of his failure to timely file death certificates and that Aultman be found guilty of violating the same statutes for failure on three occasions to timely obtain a burial-transit permit and to see that such permits accompanied the bodies when being transported out-of-state, and (2) Respondent The American Funeral Home be found guilty of violating Subsections 470.036(1)(e) and (o) on four occasions by reason of its failure to timely file death certificates, and that American be found guilty of violating the same statutes for failure to timely obtain burial- transit permits on five occasions and to see that such permits accompanied the bodies when being transported out-of-state. It is further RECOMMENDED that Respondent Aultman be given a public reprimand and that Respondent The American Funeral Home be given a public reprimand and required to make six monthly filings as set forth in the Conclusions of Law portion of this order. DONE and ENTERED this 5th 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 5th day of April, 1982.
Recommendation For the violations as established in the course of this complaint it is recommended that the license of Arnett P. Rogers to practice as the funeral director, license no. 703, and to practice as an embalmer, license no. 873, be revoked but that such revocation be withheld pending the satisfactory completion of a two year probationary term. It is recommended that the license of the Respondent, House of Rogers Funeral Home, license no. 670, be revoked, but that revocation be withheld pending the satisfactory completion of a two year probationary term. DONE and ENTERED this 1st day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G. Kenneth Norrie, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 D. Chanslor Howell, Esquire 606 Fletcher Building 1000 Riverside Avenue Jacksonville, Florida 32204
Findings Of Fact William E. Manker, Jr. and Manker Funeral Home are licensed as Funeral Director License No, 905 and Embalmer License No. 1007. Accordingly the Hearing Officer has jurisdiction over the Respondents and the alleged offenses. In October, 1977 Hobby Tillman, a registered nurse who worked part time for Manker, told Louis C. Slater, a forensic technician at the DCMEO that he could make it worthwhile to Slater if he could provide information on bodies at the morgue which led to these bodies being turned over to Manker for interment. Manker suggested to Tillman that such representation be made to an employee of DCMEO. Tillman was paid by Manker only for services he performed at specific funerals. No agreement was made between Manker and Tillman whereby the latter would receive additional compensation for any business he brought to the funeral home. Tillman had worked for several other funeral homes in the Miami area and had picked up bodies at the DCMEO for these other homes. He was a salaried employee for House of Albert funeral home for a period of time but in October and November 1976 the only funeral home at which he was working was Mankers. Slater reported this offer to his superiors who notified the Dade County Public Safety Department. The case was assigned to Detective Buckley and Sergeant Beirne who arranged for Slater to call Tillman at the Manker Funeral Home to accept his offer and arrange a meeting for the exchange of information for money. On November 9, 1976 Slater called the number of Manker Funeral Home and asked to speak to Bobby. An individual purporting to be Tillman talked with Slater, and Manker was made aware of this conversation. This call was taped when both police officers assigned to this investigation were present in the room with Slater. During this conversation Slater stated he would accept Tillman's offer and would call later for an appointment to meet him. The tape and transcription thereof constituted Exhibits 2 and 1 respectively. The police officer who was present and transcribed a copy of this tape testified that the transcription was an accurate reproduction of the conversation; however, the other police officer who was also present, testified that only Slater's voice could be heard in the room. Absent evidence of an open mike in the room the testimony that only Slater's voice could he heard by the police officer is obviously correct. No witness identified the voice purporting to be Bobby on the other end of the line; and Tillman, in whose presence the copy offered as the new Exhibit 2 was played, denied that the voice was his or that he ever talked to Slater over the phone. On November 17, 1976 Slater called the Manker Funeral Home to speak to Hobby to set up a meeting to pass to him the name of a body at the morgue. At this point the testimony diverges. Slater testified the call was made between 12 noon and 1:00 p.m. Tillman testified that he was told the call came about 10:00 a.m. Slater testified he talked to Tillman while the latter's testimony was that he was working at his nursing job at the time of the call and didn't arrive at the funeral home until after 1:00 p.m. Upon Tillman's arrival at the funeral home he was advised by another Manker employee of the message received from Slater to meet him at the South China Cafe at 2:00 p.m. that day. Tillman was in his nurse's uniform and was driven home by Manker to change clothes. Then he was driven by Manker to the South China Cafe, stopping en route at a drug store where Manker had a prescription filled and purchased sun glasses. Upon arrival at the South China Cafe on Northwest Tenth Street Manker remained in the car while Tillman entered the cafe and met with Slater. Slater told Tillman he had the name of a body and next of kin and asked if Tillman would give him something for the information. Tillman left the cafe and went to Manker's car, spoke to Manker and returned to the cafe. Before returning to the table where Slater was waiting Tillman ordered a hot dog and coke and took these to the table where Slater waited. With respect to these events again the testimony varied principally as to detail. Slater testified he didn't give the paper containing the fictitious name that had been supplied him by the police until after Tillman gave him ten dollars. Tillman testified he took the piece of paper with the names to show Manker from whom Tillman got twenty dollars. Part of this twenty dollars was used to purchase his hot dog and coke, ten dollars was given to Slater for the information and the balance was pocketed by Tillman. Manker's version of the events was that Tillman wanted a ride to pick up a prescription at Jackson Memorial Hospital Pharmacy on Northwest Tenth Street across from the South China Cafe, and since he had to go in that direction to pick up his own prescription he agreed to take him. Manker drove Tillman home to change clothes then drove him to Northwest Tenth Avenue. Tillman came back to the car for a short visit to advise Manker he would be a few minutes longer, but according to Manker, Tillman made no request for money nor did he give him any money. Manker further testified he did not even know Tillman was to meet with Slater. Slater had been wired for sound for the cafe meeting with Tillman but background noises rendered their conversation unintelligible to the police officer monitoring the conversation a few tables away. After the paper with the names had been exchanged for ten dollars, Slater, as a prearranged signal to the police of this fact, dropped a coin on the floor as he got up to leave. When exiting the cafe Tillman was arrested and booked at county jail. A preliminary search at the jail did not produce the paper that had been given Tillman by Slater but shortly thereafter one of the wardens saw Tillman throw something in the waste basket which the warden retrieved and turned over to Detective Buckley who identified it as the paper he had given to Slater with the fictitious names. Prior to his subsequent trial Tillman agreed with the State's Attorney that in exchange for a plea of guilty and testimony against Manker he would be given probation. Tillman pleaded guilty to offering a bribe and was placed on probation.
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.
The Issue Whether Respondent's personal and operating licenses should be suspended, revoked or withdrawn.
Findings Of Fact The licenses of Gary Jack Faircloth, licensed funeral director and embalmer were suspended during the period of July 25, 1974, through October 25, 1974. Gary Jack Faircloth, Petitioner, vs. State Board of Funeral Directors and Embalmers, 312 So. 22nd 222, (Florida Appellate, 1st 1975). The Respondent performed funeral directing and embalming services with respect to the remains of: Eugene S. Francis who died October 1, 1974; Ethel Morse Collins who died July 25, 1974. Death Certificate for Ethel M. Collins was received by the local registrar March 14, 1975. Death Certificate for Eugene S. Francis was received by the local registrar January 17, 1975. The embalming and funeral arrangements for the two above named individuals were performed by Gary Jack Faircloth while acting as agent for on in behalf of or in the furtherance of the interests of Faircloth Funeral Home. Gary Jack Faircloth has failed to promptly secure licenses for himself as an embalmer and as a funeral director and he has failed to promptly secure licenses for the Faircloth Funeral Home which he owns and operates. Gary Jack Faircloth performed funeral and embalming services during the time he was under suspension by the State Board of Funeral Directors and Embalmers. Gary Jack Faircloth failed to execute and record each death certificate for the foregoing named decedents within the time required by Section 382.081, Florida Statutes, which requires a death certificate be sent for recordation within three (3) days after death.
Recommendation It is recommended that the personal licenses of Respondent, Gary Jack Faircloth, for embalming and for funeral directing be revoked. It is further recommended that the establishment operating license of Respondent Faircloth for Faircloth Funeral Home be revoked. August 21, 1975 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G. Kenneth Norrie, Counsel for the Board R. C. Blanton, Executive Director of the Board Dabney Ramseur, Jr., Trust Officer, Commercial Bank Gary Jack Faircloth, Respondent
