Findings Of Fact Upon consideration of the oral and documentary evidence produced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding Respondent Larkins was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued licensed numbers FE 2310, E 2310 and FD 2106. At all times pertinent to this proceeding the Respondent Anderson was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 2204, E 2204 and FD 2003. At all times pertinent to this proceeding Respondent Evans was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 790, E 790 and 672. At all times pertinent to this proceeding Respondent Stone was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 459, E 459 and 205. At all times pertinent to this proceeding Respondent Stone Funeral Home was licensed as a funeral establishment by the Board of Funeral Directors and Embalmers, having been issued license number FH 214. The corporate officers of said establishment are Fannie B. Stone, President; Rosalyn Gordon, Secretary- Treasurer; and Raymond S. Gordon, Vice-President. Raymond S. Gordon's address is the same as the Respondent funeral establishment, 2401 East Columbus Drive, Tampa, Florida. Neither Raymond S. Gordon nor Rosalyn Gordon have ever been licensed as a funeral director, embalmer, funeral director intern or embalmer intern by the Florida Board of Funeral Directors and Embalmers. James Williams was a licensed funeral director in charge of Williams Funeral Home, Plant City, Florida, between October 1979 and March 1980. Williams was never the licensed funeral director in charge of the Respondent funeral establishment. On or about October 28, 1976, the Board of Funeral Directors and Embalmers was advised that Respondent F.B. Stone had replaced William Gordon as the funeral director in charge of the Respondent funeral establishment. The Respondent Anderson replaced Respondent F.B. Stone as the funeral director in charge of Respondent establishment on August 4, 1980, and prior to that time, Respondent Anderson was the funeral director in charge of a Lakes Wales funeral home. The Respondent Anderson notified the Board of Funeral Directors and Embalmers that he was no longer the funeral director in charge of Respondent funeral establishment as of August 27, 1980. It was not until on or about October 1, 1980, that the Board of Funeral Directors and Embalmers was advised that Respondent Evans was the funeral director in charge of Respondent funeral establishment. By letter dated May 14, 1981, Respondent Larkins notified the Board of Funeral Directors and Embalmers that he was the funeral director in charge of Respondent funeral establishment as of April 1, 1981. As a normal course of conduct, affidavits of cases embalmed and bodies handled by the Respondent funeral establishment were filed with the local registrar of vital statistics, more than five working days after the end of each month The following chart sets forth the months in question and the actual date of filing of the affidavits with the local registrar of vital statistics: MONTH ACTUAL DATE OF FILING AFFIDAVIT January 1980 February 28, 1980 February 1980 April 7, 1980 March 1980 October 14, 1980 April 1980 October 14, 1980 May 1980 October 14, 1980 June 1980 October 14, 1980 July 1980 October 14, 1980 August 1980 October 14, 1980 September 1980 (Signed October 7, 1980) October 1980 (Received by Board December 1, 1980) November 1980 (Signed December 9, 1980) December 1980 January 29, 1981 January 1981 February 5, 1981 February 1981 March 18, 1981 March 1981 June 26, 1981 April 1981 June 26, 1981 May 1981 June 26, 1981 June 1981 July 9, 1981 July 1981 (Signed August 5, 1981) August 1981 November 4, 1981 September 1981 November 4, 1981 October 1981 January 3, 1982 November 1981 January 3, 1982 December 1981 January 3, 1982 January 1982 February 14, 1982 February 1982 April 9, 1982 March 1982 April 9, 1982 April 1982 May 6, 1982 May 1982 June 4, 1982 June 1982 July 12, 1982 (Petitioner's Exhibit 1) The Respondents were placed on notice, both written and oral, of the lateness of filing the affidavits of cases embalmed and bodies handled. A review of Petitioner's Exhibit 1, the affidavits of cases embalmed and bodies handled, reflects that between July 1979 and September 1979, the affidavits were signed by Elliot C. Bruton as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge. Between October 1979, and March 1980, James Williams signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge and Williams was the licensed funeral director in charge of another establishment. Between the dates of April 1980, and July 1980, Respondent Anderson signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the funeral director in charge and Respondent Anderson was employed as the funeral director in charge during this same time period at a Lake Wales funeral home. Respondent Anderson informed an investigator for the Department of Professional Regulation that affidavits for the months of April through July were signed by him and submitted based upon the request of a previous Executive Director of the Board of Funeral Directors and Embalmers. However, Respondent Anderson also informed the investigator that after submitting the affidavits he remembered that the affidavits were incorrect in certain material respects as to the embalmer, but Respondent Anderson has never attempted to amend the affidavits. While the affidavit for September 1980, lists E. Marion Evans as the embalmer and the funeral director in charge, by letter dated October 7, 1980, the Respondent Evans informed the Board that he was the funeral director in charge as of October 1, 1980. On or about November 1981, the Respondent funeral establishment amended its exterior sign to delete the name of Respondent F.B. Stone as the funeral director in charge and display instead the name of the actual full-time funeral director in charge, at that time, Respondent Larkins. In late March 1981, Dessie Alexander's son, Alfred Alexander, died and Mrs. Alexander made arrangements through Respondent funeral establishment to have her son buried. She called the Respondent funeral establishment and left word for Raymond Gordon to call her back. Raymond Gordon then called her and she told him she wanted to release her son's body to him. Raymond Gordon then came to Dessie Alexander's home and asked her to sign a release paper so that he could pick up the body at the morgue, which she signed. Raymond Gordon called her later and asked her to come to the Respondent funeral establishment to make funeral arrangements. She and her family arrived at the Respondent funeral establishment and, with the assistance of Raymond Gordon, chose a funeral casket. Raymond Gordon took the family to the cemetery to purchase a cemetery lot for the burial. At the Respondent funeral establishment, Raymond Gordon assisted the family in determining the exact funeral arrangements necessary. Marion Evans, although present at the funeral establishment building at certain times, was not involved in the formulation of the funeral arrangements and did not act in a supervisory capacity over Raymond Gordon. Raymond Gordon wrote the funeral purchase contract, and after determining and itemizing the charges, had the family sign the contract. At the funeral service of Alfred Alexander at a local church, Raymond Gordon and Rosalyn Gordon were present, with Ms. Gordon making the payments to the pianist and minister while Raymond Gordon coordinated the funeral services. Respondent Evans was not involved in conducting the funeral service of Alfred Alexander. During this time period, Respondent Evans was the funeral director in charge of the Respondent funeral establishment. Thelma Collins utilized the Respondent funeral establishment on April 29, 1981, when her son, Anthony Bethea, died. Ms. Collins spoke with Raymond Gordon and then he, Stanley Larkins and another unidentified person came to her home. Raymond Gordon spoke with Ms. Collins at her home. At this time, Ms. Collins and Raymond Gordon discussed picking up the body, the time of death and other information concerning the deceased. Ms. Collins' funeral purchase agreement, Petitioner's Exhibit 4, was executed at the Respondent funeral establishment and was drafted, discussed and explained by Raymond Gordon to Ms. Collins when no other employees or agent of the Respondent funeral establishment was present. The funeral service was conducted at a local church and Raymond Gordon, Rosalyn Gordon and an unlicensed workman for the Respondent funeral establishment attended. Ms. Collins does not remember the presence of Respondent Larkins at the funeral service. Marie Butler's sister, Cora Evans, died in January 1980, and the Respondent funeral establishment handled the funeral arrangements and services. Raymond Gordon arranged the funeral service, determined prices and contractual terms and conditions, assisted in determining the arrangements to be made for the funeral service, and conducted and directed the funeral services at the church and grave site. In June 1980, when Respondent Larkins was the registered funeral director in charge of the Respondent funeral establishment, Marie Butler's brother died. Raymond Gordon again personally handled all the funeral arrangements and services by arranging the funeral service, determining prices and contractual terms and conditions, assisting in determining the arrangements to be made for the funeral service, and conducting and directing the funeral services. Respondent Larkins was physically present during most of these activities but did not directly supervise the arrangements of the funeral services. Virgilio O'Farrell died on May 11, 1981, during the time that Respondent Larkins was the funeral director in charge of Respondent funeral establishment. Gail Blackman arranged the funeral services for Mr. O'Farrell through Respondent funeral establishment. Ms. Blackman did not recall dealing with Respondent Larkins in arranging the funeral services through Respondent funeral establishment, but dealt instead with two unknown men from the Respondent funeral establishment. Respondent Larkins testified that during his employ at Respondent funeral establishment, April 1980 through the present, he has been the only licensed funeral director representing the Respondent funeral establishment. Respondent Larkins remembered the Thelma Collins' transaction. On this occasion as well as others, Raymond Gordon was present but Larkins did most of the talking regarding the funeral arrangements. He remembered this particular case because it was the first funeral arrangement he handled in Progress Village. The affidavits of cases embalmed and bodies handled were late in being properly filed due to the fact that Raymond Gordon was acting as the courier of the affidavits and he failed to timely post the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered placing the Respondents Larkins, Evans, Anderson, Stone and Stone Funeral Home on reporting probation for a period of two years and imposing an administrative fine of $750 per Respondent. During the probationary period, the Respondents should be required to regularly certify to the Board that they are complying with all requirements of Chapter 470, Florida Statutes in a timely and accurate manner. DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1981.
Findings Of Fact Respondent, 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.
