Findings Of Fact Robert L. Brown is licensed as a funeral director and embalmer and Brown's Paradise Memorial, Chapel is licensed as a funeral establishment, and both were so licensed at all times here relevant. Vincent Foster was involved in an industrial accident at approximately 4:30 p.m. on Friday, August 13, 1982, while working on a building which collapsed. He was taken to Central Florida Regional Hospital, Sanford, Florida, where he was pronounced dead shortly after 6:00 p.m. The deceased was survived by his common-law wife of ten years, three children, mother and father, and several brothers and sisters. Vincent's brother, James Foster, resides in Sanford, Florida, as do his parents. James learned of the accident around 5:30 p.m., went to the construction site where he found the body had been taken to the hospital. He proceeded to the hospital, where his mother, Armetta Foster, had already arrived, and learned his brother was dead. He discussed funeral arrangements with his mother and they agreed they preferred Wilson-Eichelberger Funeral Home. That evening James called Eunice Wilson and left the message for her to call back. The following morning James went to his mother's house while awaiting the arrival of Vincent's common-law wife, Lelia May Dellafield. James and his mother agreed Lelia should make the decision about which funeral home to use. Lelia was the beneficiary of Vincent's insurance policy and was expected to pay for the funeral. Lelia tended towards Respondent's services and wanted to talk to Respondent about providing services. James then contacted Brown's assistant, Howard LaFair, and told him Lelia wanted to talk to Brown about picking up the body and conducting funeral services. James then went to the hospital where he was told an autopsy was in progress and it would be at least two hours before the body could be picked up. Leaving the hospital, he encountered LaFair in Brown's hearse and told him pickup of the body was delayed at least two hours due to the autopsy. The hospital subsequently released the body to Respondent without obtaining a release to do so from Vincent's surviving relatives. Saturday afternoon Brown came over to Lelia's apartment where James, his wife, and his mother were waiting. Upon his arrival Brown led them in prayer, following which he inquired who would be paying for the funeral services, and a general discussion followed. No specific terms were agreed upon. During this discussion Respondent told Lelia she should call him when the insurance agent arrived. Before leaving Brown advised them he would pick them up Monday to visit the casket house in Orlando to pick out a casket. Monday morning the insurance agent, who had recently sold Vincent a $5,000 life insurance policy with triple benefits for accidental death, came to Lelia's apartment and she called Brown, who came over. Brown asked questions about the policy and wanted the insurance agent to hand the policy to him. The latter refused to do so, saying the only one who could give him the policy was Lelia. When James Foster, who had left before the agent arrived, returned around 10:00 a.m., the agent had departed but Brown was still there and had possession of the policy. That afternoon Brown and his secretary took James, Lelia, and her brother to the Orange County Casket Company. Lelia was too upset to stay in the room with the caskets and remained outside while the other three looked at caskets. James testified that Brown selected the wood-grained casket stating he "wanted my boy [Vincent] to go out in style." Respondent testified that James picked out the casket and they told Lelia which one was selected and she agreed. They then returned to Sanford to Respondent funeral home where arrangements for the funeral were discussed. No contract was signed at this time. Exhibit 1, which is a contract for funeral services, preparation of body, supplies, etc., indicates it was approved by Lela[sic] Dellafield, However, Lelia testified that was not her signature. The signature on Exhibit 5, a subsequent contract with Wilson-Eichelberger funeral home was identified by Lelia as her signature. On Exhibit 5 the signature is "Lelia Dellafield." On Exhibit 1 the signature is "Lela Dellafield." Exhibit 1 first appeared when James, Lelia, and her brother returned to the funeral home from the casket house. The contract was first seen by James when he returned to the room after briefly leaving to go to the bathroom. Lelia was upset because Brown had not returned her insurance policy. When they returned to Lelia's apartment from the funeral home, Lelia told James that Brown still had her insurance policy and she wanted it back. Later that evening she told James she did not want Brown to handle the services. He advised her to so advise Brown on Tuesday. On Tuesday Brown received the word that Lelia wanted another funeral home to handle the funeral. His assistant, LaFair, telephoned Lelia to berate her for not using Brown. Respondent was out of town Wednesday when James went to the funeral home to get Lelia's insurance policy. However, Brown's secretary got Brown on the phone and James talked to him. He told Brown he wanted the policy back and he did not intend to allow Brown to take anything away from his brother's kids. Wilson-Eichelberger funeral establishment sent a car to Respondent's funeral home Wednesday to pick up Vincent's body, but LaFair would not let them have the body. He told them the funeral home was locked, Brown was out of town, and he, LaFair, would not release the body. By Wednesday evening Vincent's brothers and sisters had arrived, were told the events that had transpired, and all proceeded to the funeral home to find out why the body had not been released. Upon their arrival Brown was out of town and LaFair said he did not have a key to get in the funeral home. On Thursday the Fosters proceeded to the State Attorney's Office to instigate charges against Brown for refusing to release Vincent's body. Also on Thursday morning, Brown had returned to Sanford and telephoned Susan Foster, a Department of Professional Regulation Complaint Analyst, in Tallahassee, to inquire about his right to hold a body until he had received payment far his services. He was told by Ms. Foster that he was entitled to fees for services he had performed if such services had been authorized in writing but that he had no right to hold the body. Later that afternoon James Foster called Susan Foster requesting Petitioner's assistance in getting his brother's body released. After leaving the State Attorney's Office, the Fosters, accompanied by a TV news cameraman, proceeded to Respondent's establishment. Brown was present, as was James Golden, Brown's lawyer, who Brown testified he did not hire and did not know why he was at the funeral home on Thursday. Upon the arrival of the Fosters, Golden came out and told them Brown would only talk to Lelia Dellafield. However, the family was allowed in. During this time Lelia's policy was returned. Brown told them he wanted $3,400 for services he had performed before he would release the body. After some heated discussion Brown got up and went into his office. The others present, including Golden, thought Brown was going for a weapon and ran. Shortly thereafter Brown turned himself into the hospital with a nervous breakdown. Brown testified he called Wilson- Eichelberger on Thursday to come pick up the body but they told him they would not touch it because the state had become involved. Friday morning Brown called Winfred Burrell, a licensed funeral director. Burrell was not at home but his wife could get in touch with him and have him call Brown at the hospital. Burrell called Brown who asked Burrell to go to the funeral home and take over the job of getting the body released and to have the Fosters agree to pay for the services Brown had rendered. He gave Burrell full authority to act for Brown. Burrell arrived at the funeral home late Friday afternoon, met with the Fosters, and entered into an agreement with them to pay Respondent $300 for embalming the body and $45.00 each for two trips with the body, one from the hospital to the funeral home and one to the other funeral home. The body was delivered to Wilson-Eichelberger Friday night and the funeral was held Saturday. Lelia Dellafield has little recall of what took place immediately following Vincent's death. She does not recall specifically what she did and did not do. The only reason she maintained she did not sign Exhibit 1 is because that is not her signature on that document. In addition to the insurance policy, Lelia and her children are the beneficiaries of Vincent's worker's compensation. This is a $100,000 benefit which Lelia receives in biweekly installments from her lawyer and trustee. She has no idea how long these payments will continue. In addition to the triple indemnity insurance policy and the survivor's benefit from worker's compensation, the worker's compensation coverage also provided $2,500 for funeral services. The insurance carrier for the construction company for whom Vincent worked is Florida Farm Bureau Insurance Company (FFB). FFB paid the bill for services in the amount of $2,366.50 to Wilson-Eichelberger. Later FFB received a letter from the attorney for Lelia asking for payment of the $390 paid to Brown and FFB wrote to Brown asking if that amount was correct. FFB then paid the balance of the $2,500 (less the $2,366.50 paid to Wilson-Eichelberger) or $133.50 to Lelia. Upon receipt of the inquiry from FFB Brown prepared a bill for services performed for Vincent Foster in the amount of $1,170 and forwarded it to FFB for reimbursement (Exhibit 4). Brown testified he did not expect to get paid for the services listed in the bill, which included arranging, supervising, and conducting a funeral, but sent it in because FFB "asked him to."
Findings Of Fact The Respondent, James Cusack, is a licensed funeral director and embalmer, having been issued licenses numbered FE 2036, EM 2036 and FD 1842 by the Board of Funeral Directors and Embalmers. During the periods of time relevant to this proceeding he was the licensed funeral director in charge of Sunset Funeral Home. The Respondent, Sunset Funeral Home, is a licensed funeral establishment, holding establishment license number FH 974 issued on March 27, 1975. The present owner of Sunset Funeral Home is Amos Lewis, although there have been other owners in partnership with Mr. Lewis since the establishment became licensed. George Williams of Titusville was employed by Sunset Funeral Home for the purpose of removing dead human remains from hospitals and other institutions. George Williams also signed such release forms as were required to remove human remains to the Sunset Funeral Home, as a mortician for the Respondent funeral establishment. In particular, George Williams performed this service on February 28, 1979, when he secured the release of James Whittenburg, deceased, from a Melbourne hospital by signing as mortician, and removing the remains to Sunset Funeral Home. George Williams is not a licensed mortician. Amos Lewis, who is the owner of the Respondent funeral establishment but not licensed as a funeral director, took orders from families of decedents for caskets which were shown at Sunset Funeral Home by Amos Lewis. Amos Lewis also prepared the sales contracts for pre-need funeral services, and for the final disposition of decedents. Timothy Stokes and Ethel Stokes own Stokes Ambulance Service in Melbourne, but neither is licensed as a funeral director. These persons retained an inoperative ambulance parked in front of their residence. This residence had previously been the location of Sunrise Funeral Home in Melbourne. The Stokes also retained a telephone directory advertisement in the name of Sunrise Funeral Home, and have retained the prior business telephone number of Sunrise Funeral Home as their home telephone number. This arrangement served to solicit clients for the Respondent, Sunset Funeral Home and its owner, Amos Lewis. In July of 1981, Ethel Stokes made arrangements for funeral services for one Dan Drasson, deceased, for the Respondent, Sunset Funeral Home, although she was not licensed as a funeral director. In October of 1978, Timothy Stokes signed mortuary release forms for Brevard Hospital in Melbourne, releasing the remains of Joe McCray to Sunrise Funeral Home, as a mortician and representative of Sunset Funeral Home. Timothy Stokes also provided pre-need funeral services for Diana Tolbert at the request of the Tolbert family, making arrangements for shipping the body of Diana Tolbert, preparing insurance papers, obtaining a death certificate, and shipping the body of Diana Tolbert to another state, as the representative of Sunset Funeral Home. Timothy Stokes has no license authorizing him to perform these functions. In May of 1980, the Respondent, Sunset Funeral Home arranged for embalming the dead body of Joe Thomas without the consent of any person with authority to provide such consent. Sunset Funeral Home's representative, Ethel Stokes, provided a copy of an authorization to embalm which bore the forged signature of Joe Thomas' son, Frederick Montgomery. The Respondent, Sunset Funeral Home, knowingly, employed and compensated Timothy Stokes and Ethel Stokes, unlicensed persons, for the purpose of practicing funeral directing and soliciting contracts for the same in the name of Sunset Funeral Home. The Respondent, James Cusack, was associated with the Respondent, Sunset Funeral Home, as licensed funeral director but not as an owner. There was not sufficient evidence presented to demonstrate that he was involved in the activities described above, or that he had any direct or specific knowledge that such activities occurred, to support a finding of fact that James Cusack was guilty of any more than negligent supervision of the Respondent funeral establishment. James Cusack has removed himself from any association with Sunset Funeral Home, and he now works as a funeral director in Deland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent, James Cusack, and the Respondent, Sunset Funeral Home be found guilty of violating subsections 470.036(1)(a), (h) and (n) and 470.031(1)(a) and (f), Florida Statutes, as charged. It is further RECOMMENDED That license number FH 974 held by Sunset Funeral Home be revoked, and that Sunset Funeral Home be assessed an administrative fine of $3,000. It is further RECOMMENDED That James Cusack receive a reprimand, and be placed on probation for a period of one year, subject to such conditions as the Board may specify in the Final Order herein. THIS RECOMMENDED ORDER entered this 15th day of November, 1982. WILLIAM B. THOMAS, 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 15th day of November, 1982. COPIES FURNISHED: James H. Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 James E. Cusack Post Office Box 2009 Deland, Florida 32720 Sunset Funeral Home 611 South Washington Avenue Titusville, Florida 32780 Mr. Edward P. O'Dowd Executive Director Florida Board of Funeral Directors and Embalmers Room 507, 111 E. Coastline Drive Jacksonville, Florida 32202 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is a licensed Funeral Director and Embalmer. Respondent was a full-time employee of State Society for Cremation, Inc.; hereinafter referred to as the Society. Respondent's duties included picking up the deceased, transporting the deceased to the crematory, placing the deceased in a lined (container), placing the deceased in refrigerated storage for 48 hours as required by law, contacting the family, preparing paper work, signing death certificates, obtaining cremation permit, supervision cremation and disposal of the remains. Respondent's picture together with information about the Society was published in a local paper as an advertisement. (See Plaintiff's' Exhibit D.) Respondent did sign death certificates in block 25b; FUNERAL DIRECTOR, and the name of State Society for Cremation, Inc., was entered in block 25a, FUNERAL HOME - NAME AND ADDRESS. Respondent called upon Mabel Jensen and Leonard Jensen and obtained their signatures on two contracts upon payment of $22 each, however, according to the Society's President, the Society never used door to door solicitation. The Society maintains a specific location for the preparation and maintenance of dead human bodies prior to cremation and for its crematorium. The Society did actively seek business by various means of directly contacting individual members of the public to include direct mailings and telephone solicitation, although telephone solicitation was stopped in October 1975.
Recommendation The Hearing Officer based on the foregoing findings of fact and conclusions of law recommends that the Respondent's license be revoked with consideration for reinstatement in six months. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Douglas R. Evenue 4114 11th Street North St. Petersburg, Florida 33701 Mr. R. C. Blanton, Jr. Executive Secretary State Board of Funeral Directors and Embalmers Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 G. Kenneth Norrie, Esquire 1300 Florida Title Building Jacksonville, Florida 32202
