The Issue Whether the licenses of the Respondents, or any of them, should be revoked, annulled or suspended, or whether the Respondents, or any of them, should be otherwise disciplined for "funeral directing" at an unlicensed "funeral establishment."
Findings Of Fact Respondent Carl F. Slade holds funeral director's license number 588 and embalmer's license number 733; Respondent Richard H. Clark holds funeral director's license number 1057 and embalmer's license number 1225; Respondent Vista's Cuban-American Funeral Home, Ltd. holds establishment operating license number 1068. Respondent Slade is the licensed funeral director and embalmer in charge of Respondent Vista's Cuban-American Funeral Home, Ltd. Vista's Memorial Gardens Cemetery has a building on its premises but is not licensed. Respondent Richard Clark is employed, and has been so employed at all times pertinent to this hearing, by both Respondent Vista's Cuban-American Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery. He performs services for both entities but does not work at the funeral home location. Respondent Clark is regularly employed on a forty (40) hours per week basis at the Vista's Memorial Gardens Cemetery and has his office in that location. The locations of Respondent Vista's Cuban-American Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery are several miles apart on Red Road in the Miami, Dade County, area. An administrative complaint was filed against Respondents by Petitioner, State Board of Funeral Directors and Embalmers, on September 8, 1978, alleging that the Respondents were in violation of the statute prohibiting solicitation and, through Respondent Clark, were "directing funerals" at an unlicensed "funeral establishment." The Respondents requested an administrative hearing. A motion to dismiss by the Respondents was denied. At the time of the hearing the charges involving solicitation were abandoned by the Petitioner Board. Vista's Memorial Gardens Cemetery is a division of Pershing Industries, Inc., an interstate public stock company. Pershing Industries, Inc. is an 85 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. The funeral home is located at 1825 NW Red Road, and the cemetery is located at 14200 NW Red Road. The general manager of the cemetery is also a general manager of the funeral home. The other general partner is funeral director, Respondent Carl F. Slade, who is also a 15 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. Respondent Slade owns no stock in Pershing Industries, Inc. The Respondent funeral home is licensed to operate a funeral establishment at 1825 NW Red Road and 57th Avenue in Hialeah, Florida. The building at Vista's Memorial Gardens Cemetery at 14200 Red Road, where Respondent Clark works, has a display room containing four caskets for selection by the customers but has no funeral parlor or embalming room. The duties of Respondent Clark other than the sale of plots at the cemetery include: Meets the public; Discusses funeral arrangements with families and financing, whether for present or future need; Collects details of families' desires for funerals and information required for the removal of remains and release to a funeral home, and information required for the completion of death certificates required by state law; Displays and offers for sale caskets from a display area within the building on the cemetery premises; Forwards information collected and details regarding preliminary arrangements made at the cemetery on forms provided by Respondent Vista's Cuban-American Funeral Home, Ltd. to the funeral home for handling; and Presides at and assists other members or employees of Respondent Vista's Cuban-American Funeral Home, Ltd. in services at the cemetery. On a day prior to September 8, 1978, Ms. Louise Pakenhem went to Vista's Memorial Gardens Cemetery where Respondent Clark was employed. She told Clark her husband, John Pakenham, was critically ill and negotiated a contract with Clark. Ms. Pakenham paid $25.00 down and agreed to pay the balance at the time of her husband's death. She discussed the funeral arrangements with the Respondent, which resulted in a prearrangement. Respondent Clark secured Ms. Pakenham's signature on a prearrangement contract and on a form to release her husband's body to the funeral home. Clark obtained the necessary information for a death certificate. He then sent the form and said information to Respondent Vista's Cuban-American Funeral Home, Ltd. All necessary items had been done with the exception of payment for the services in the amount Respondent Clark had estimated would be needed when Mr. Pakenham died. On the day after the contract and arrangements had been made, Ms. Pakenham, who was in fact a widow, cancelled both the burial rights contract and the arrangements by certified letter. The cemetery and Respondent funeral home cancelled both contracts and returned the $25.00. It is immaterial that Ms. Pakenham deceived Respondent Clark as to her need for a professional funeral director. Respondent Slade receives at his place of business at Respondent Vista's Cuban-American Funeral Home, Ltd. information on funerals from Respondent Clark. Respondent Slade arranges for transportation of bodies and the preparation thereof, and at times supervises and directs funerals in the chapel of Respondent Vista's Cuban-American Funeral Home, Ltd. and at Vista's Memorial Gardens Cemetery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that: Respondent Carl F. Slade and Respondent Richard H. Clark cease and desist from practicing funeral directing at Vista's Memorial Gardens Cemetery; A fine be imposed on Respondent Slade and Respondent Clark of $250.00 each; and The license of Respondent Vista's Cuban-American Funeral Home, Ltd. be suspended until the funeral business in the unlicensed funeral establishment at Vista's Memorial Gardens Cemetery is discontinued, or until such time as no funeral business is referred to Respondent Vista's Cuban-American Funeral Home, Ltd. from that establishment. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 R. G. Maxwell, Esquire 135 Westward Drive Miami Springs, Florida 33166 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Petitioner, vs. CASE NO. 78-1698 CARL F. SLADE, F.D., VISTA'S CUBAN-AMERICAN FUNERAL HOME, LTD., and RICHARD H. CLARK, F.D., Respondent. /
Findings Of Fact At all times relevant hereto Respondent was licensed as a funeral director and embalmer as alleged. Respondent sold preneed burial services without being registered to do so by the Commissioner of Insurance, and he failed to maintain 100 percent of the funds received for the sale of such services as required by Chapter 639, Florida Statutes. When removed from the operations of the North Fort Myers Funeral Home, Respondent refunded all payments, plus interest, received for such preneed burial services. In 1978 Respondent was employed as funeral director at the North Fort Myers Funeral Home which is owned by Eugene White, a first cousin of Respondent. White, who is not licensed, had earlier bought out his original partner and needed a licensed funeral director to run the establishment. He employed Respondent and agreed to turn 25 percent ownership of the funeral home over to Respondent when the debt to his former partner, resulting from the purchase of his interest, was paid off from the profits of the funeral home. White's principal business is the operation of a furniture store in Fort Myers. In this furniture store White employed, during the winter months, Glen Downing as a salesman. Downing had been coming down to Fort Myers during the winter from Ohio for the past few years and while in Fort Myers, worked as a salesman at White Furniture Store. In 1978 Downing's wife died in Fort Myers and her body was delivered to the North Fort Myers Funeral Home for embalming and shipment to Ohio where the funeral services were held. Downing agreed with North Fort Myers Funeral Home that they would prepare the body and ship it to Ohio for a certain sum, that they would bill the Ohio funeral home for these services and that Downing would pay the total cost of the services to the Ohio funeral home. The latter forwarded their check dated January 16, 1978, in the amount of $544 to the North Fort Myers Funeral Home. This check was endorsed by Respondent and either cashed or deposited in the funeral home account. Martha Willis was the executrix of the estate of Jacob Gaberman who died October 30, 1980 and whose funeral arrangements were handled by North Fort Myers Funeral Home. Following his funeral she paid $780 to the North Fort Myers Funeral Home by check dated July 7, 1981 (Exhibit 9), and received satisfaction and release of claim (Exhibit 10). This check was endorsed by Respondent and cashed at the Flagship Bank in Fort Myers. Helen Blow's husband died October 9, 1981 and his funeral services were handled by North Fort Myers Funeral Home. Mrs. Blow paid for these services by check dated October 10, 1981 in the amount of $700. When Mrs. Blow delivered this check to Respondent, the payee was blank and she observed Respondent write his name in the payee space. The check was endorsed by Respondent and cashed at the Flagship Bank in Fort Myers. William T. Ballard maintained a joint checking account with his wife at the Flagship Bank of Fort Myers which he used for personal household type expenses. The North Fort Myers Funeral Home also maintained an account at the Flagship Bank of Fort Myers. Herbert Elkins was employed by Respondent as a funeral director and embalmer in 1980. He prepared and executed the contract signed by Helen Blow (Exhibit 1) in the total amount of $700 and marked this contract paid when the check was delivered. He also prepared, at the direction of Respondent, a similar contract (Exhibit 3) in the name of Blow, containing the same information as Exhibit 1 except the total price on Exhibit 3 is $505. In July 1982 the records of the North Fort Myers Funeral Home showed Blow owed $505 for these services. For the funeral services rendered to Downing, Gaberman and Blow, the books and records of the North Fort Myers Funeral Home do not reflect payment has been received for those funeral services. Exhibit 7, the North Fort Myers Funeral Home financial statement for the year ending December 31, 1979 includes under Bad Debts the Downing services in the amount of $439. White became disenchanted with Respondent when the accountant who handles the funeral home's records advised him the funeral home was accounting for funds six and seven months after services were rendered. White approached Downing after receipt of Exhibit 7 to inquire why he still owed for his wife's funeral. When Downing told White he had paid the bill in full, White asked Downing to get record evidence and instructed his accountant to inquire about all of those debtors listed as overdue accounts. When White asked Respondent about the Downing debt Respondent told him it was not a significant sum but the money had not been received. A couple of days later Respondent told White that the Ohio funeral home had just sent in the money for the Downing services-- almost two years late. White never authorized Respondent to use any of the funeral home funds for his personal use or to do anything with those funds except deposit them in the funeral home checking account, maintain all records of services rendered, accounts billed, funds received, checks written on the account and provide all of this information to the accountant.
Findings Of Fact The Respondent is a licensed funeral director and embalmer holding license numbers 1231 and 1250 respectively. Clarence Quinn, a policeman employed by the Delray Beach Police Force testified that he has known the Respondent for approximately 35 years and at one time lived with the Respondent for an extended period of time. He testified that during the funeral of his mother on or about May 20, 1976, he encountered numerous problems in attempting to make the necessary funeral arrangements. He testified that the Respondent stayed in a drunken state for a two day period beginning May 21 and that due to his inability to make satisfactory arrangements with the Respondent, he had to remove his mother's body to another funeral home to make the necessary embalming and funeral arrangements. Messr. Quinn encountered similar problems with the Respondent during the funeral of his nephew during 1972. Lillian Rohming, Respondent's sister, also corroborated the testimony of Quinn and testified that he is suffering from an alcoholic problem which is, in her opinion, destroying him as a person and impairing his ability to function as a funeral director and embalmer. Messr. Hamon Thompson, presently employed by Meking Industries, was formerly employed by Respondent for approximately 8 or 9 years. During this period of time, he assisted the Respondent in making funeral arrangements and performed general staff duties 3 to 4 hours daily during afternoon and evening hours. He testified that it was not uncommon for the Respondent to remain in an intoxicated state frequently for periods lasting 3 to 4 days. To the best of his ability, he discouraged the Respondent and others from bringing alcohol on the premises. This was done, based on his observation of the Respondent's performance and/or lack thereof when he imbibed alcohol. He testified that without question, the Respondent is one of the more excellent embalmers and funeral directors in the area while sober but that within the last few years, he consumes alcohol excessively which has been detrimental to his performance as an embalmer and funeral director. He, like other witnesses who testified, including Lauren Braxton, Respondent's sister, Joseph Harrington, an acquaintance of Respondent's for approximately 20 years and Joe Poiter Jerkins, another of Respondent's sisters, all testified as to the severity of Respondent's alcoholic problems. The evidence is that while drinking alcohol, the Respondent is generally unresponsive to the requests of families during funerals; he occasionally lies down in empty caskets; he blows the siren while mourners including family members are viewing bodies and he occasionally interrupts funerals when, in the Respondent's opinion, the funeral ceremony lasts too long. James E. Shelton, an assistant of Respondent for numerous years, testified that based on his relationship with the Respondent, he (Respondent) has conducted himself in a mannerable fashion and that alcoholism is in no way a problem which affects the Respondent's ability to function as an embalmer or funeral director. He testified that although it is true that the Respondents business has fallen off recently, he attributes this decline due to conflicts respecting the ownership of the business. Based on the foregoing findings, I am constrained to conclude that the evidence compiled herein necessarily compels a conclusion that the Respondent is an habitual drunkard as alleged in the administrative complaint filed herein and I shall so recommend. Consideration was given to the contrary testimony of witness Shelton and Respondent's wife, Ester B. Poitier. However, on balance, the weight of evidence supports a finding that the Respondent is suffering from an alcoholic problem which has hampered his ability to function as a licensed embalmer and funeral director. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's license to practice as a licensed embalmer and funeral director be revoked. ENTERED this 17th day of March, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones & Gay Florida Title Building Jacksonville, Florida 32202 Hartman Delano Poitier 379 South Dixie Highway Deerfield Beach, Florida 33441 Ronald T. Giddens, Secretary-Treasurer State Board of Funeral Directors and Embalmers 6501 Arlington Expressway, Suite 208 Jacksonville, Florida 32211
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.
