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
The Issue Whether the license of Arnett P. Rogers, Funeral Directors' license number 701 and Embalmers' license number 873 and the license of House of Rogers Funeral Home Establishment Operators' license number 6700 should be revoked, suspended or annulled or whether Arnett P. Roger should be otherwise disciplined.
Findings Of Fact Arnett P. Rogers holds Funeral Directors' license number 701 and Embalmers' license number 873 and is the owner of House of Rogers Funeral Home which was issued Establishment Operating license number 6700. Respondent was charged in a complaint issued by Petitioner with violating Setion 470.12(1)(k); Section 470.12 (2)(c); and section 470.12(2)(p), Florida Statutes, in that as a licensed funeral director and embalmer he was found guilty of, after being charged with, a crime of moral turpitude in this State. More specifically, Respondent was charged with being found guilty of violating Section 409.325, Florida Statutes, which prohibits fraud in the handling of federal food stamps. The Respondent, Arnett P. Rogers, was charged with violating the terms of probation imposed upon him by final order of the State Board of Funeral Directors and Embalmers dated January 31, 1977, which adopted a recommended order dated December 1, 1976, copies of which are attached hereto and made a part hereof, after being charged and found guilty of a crime of moral turpitude in this state. Petitioner charged the Respondent, House of Rogers Funeral Home, with the violation of Section 470.12(4)(a), Florida Statutes, in that Arnett P. Rogers, the licensed funeral director in charge of and owner and operator of said funeral home committed acts in violation of Chapter 470, Florida Statutes, by being found guilty of a crime involving moral turpitude in this state. Respondent, House of Rogers Funeral Home, was charged with having violated the terms of the Order of Probation dated January 31, 1977. Upon examination of the evidence submitted and considering the testimony of a witness produced by the Petitioner, it is found that the Arnett Rogers shown in the information filed and judgment of guilt ordered September 23, 1977, which is attached hereto and made a part hereof, is one and the same person as the Respondent, Arnett P. Rogers. No evidence was offered mitigating the apparent turpitude of the offense for which Respondent Roger was found guilty. The Respondent, Rogers, violated the terms and conditions of the Final Order entered on January 31, 1977, which revoked Respondent's licenses but withheld revocation pending the satisfactory completion of a two year probation period beginning on the date the Order was entered. It is found that the conviction of Respondent by Judgment dated June 27, 1977, and filed by the Clerk of the Circuit Court, Fourth Judicial Circuit of Florida, in and for Duval County, Florida, is a violation of the requirements of Chapter 470, Florida Statutes, and is not a "satisfactory completion of a two year probationary period" required by the foregoing Final Order. The adjudication of guilt of a crime proscribed by Section 409.325, Fraud.-Florida Statutes, is a "crime of moral turpitude" and a violation of Section 470.12(2)(c) Florida Statutes. From the testimony and evidence submitted, it is found that Respondent intended to use food stamps as payment for funeral services to be rendered by him and The House of Rogers when he accepted food stamps in a negotiation for a down payment for a funeral. The proposed orders of the parties have been considered in the rendition of this order and any part thereof not directly treated is found to be without merit.
Recommendation Revoke the licenses of Arnett P. Rogers and the House of Rogers Funeral Home. DONE and ENTERED this 6th day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202
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 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
