Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: COUNT I During a portion of and prior to 1979, the respondent National Cremation Society (NCS) operated in conjunction with a licensed funeral home known as the Home for Funerals in Largo, Florida. In September of 1979, Charles E. Jordan, as General Manager of NCS, notified the Department of Professional Regulation that the NCS had acquired the "Home for Funerals, Funeral Home and Crematory," desired to change the name to National Cremation Society Crematory and to operate the facility as a "direct disposal establishment." A "direct disposal establishment" was a new entity created pursuant to legislation enacted in 1979. Chapter 79-231, Laws of Florida (1979). Mr. Jordan informed the Department that the facility was presently licensed as follows: "Home for Funerals-994-Expires 10/31/80 Home for Funerals Crematory-054-Expires 6/30/80" The Department was requested to "please register this facility as a Direct Disposal Establishment and provide us with any forms we may need for this registration." By letter dated September 11, 1979, Mr. Jordan was notified by the Department that the Department was in the process of adopting rules by which to issue permits for direct disposal establishments and that he would be notified when the rules were finalized and the forms were available. On or about November 11, 1979, respondent applied for registration as a direct disposal establishment on the form provided by the Department. By memorandum dated April 29, 1980, the respondent was informed by the Department that its registration was confirmed "based upon the investigative report that all requirements for a direct disposal establishment have been met." An inspection of the National Cremation Society Crematory had been performed on April 17, 1980 and the inspector made comments about the crematory equipment and noted that the "facilities are more than adequate." The licensure and regulation of direct disposers and direct disposal establishments does not include the licensure or regulation of a cinerator facility. A cinerator facility is separately licensed and regulated by the Board of Funeral Directors and Embalmers. Section 470.025, Florida Statutes. The respondent operated as a cinerator facility without a cinerator facility license from June 30, 1980 through January 11, 1982. The licensed direct disposers for the respondent establishment, Mr. Jordan and Frances Cannizzaro, believed that the respondent's direct disposal establishment license included permission to operate the cinerator or cremation retort. The establishment had been inspected on several occasions prior to November 17, 1981, and had not been cited for any violations. On November 17, 1981, the Department's Inspector Huddleston inspected the respondent's facility. Upon inquiry as to the existence of a cinerator facility license, he was told by Mrs. Cannizzaro that it was her understanding that the respondent's licensure as a direct disposal establishment permitted the respondent to perform all functions necessary for the disposition of dead human bodies, including cremation. Huddleston expressed his uncertainty at that time as to the need for a direct disposal establishment to also possess a separate cinerator facility license, and told Mrs. Cannizzaro that he would check into the matter. On December 15, 1981, respondent was issued a citation that it was in violation of Section 470.025, Florida Statutes, for operating without a cinerator facility license. Respondent immediately applied for such a license on December 18, 1981, and the Board of Funeral Directors and Embalmers requested the Department of Professional Regulation to issue respondent a cinerator facility license to be effective January 11, 1982. Prior to January 11, 1982, the respondent did not submit to the Board or the Department monthly reports containing the names of persons cremated and other related information. After January 11, 1982, much reports were properly submitted. COUNT II Prior to his death, James E. Smith contracted with the respondent on a prepaid basis for cremation. After a protracted bout with cancer, he died on or about February 13, 1981, weighing less than 100 pounds at the time of his death. His widow, Ursula Smith, went to respondent's establishment on February 21, 1981, to obtain her late husband's cremains. She was "overwhelmed" by the large volume of the cremains represented to her as being those of her husband. She had had previous experience with the respondent which had provided for the cremation of two of her in-laws. In early June, 1981, while in the process of disposing of the ashes, Mrs. Smith discovered an approximate two-inch long metal piece of dental bridge work within the cremains of her deceased husband. Mr. Smith did not have that piece of bridge work or any other dental bridge work at the time of his death. No competent evidence was adduced in this proceeding as to the appropriate volume of cremains that could be reasonably expected from the cremation of an individual human body. When petitioner's Inspector Huddleston inspected the respondent's establishment in November of 1981, he observed that the cremation retort had an eroded floor "due to the falling off of the fire brick in the floor of the retort from the heat." He estimated that the indentations in the floor of the retort were up to one-half or three-quarters of an inch in depth at a time when the retort was cool and had been swept clean. Two other persons observed the rough floor of the retort in February of 1982. An inspection performed on January 11, 1982, by the Department noted no violations concerning the physical condition of the cremation retort. As noted above, respondent's cinerator facility license became effective on that date. There are no existing statutes or rules which establish any criteria, standards or guidelines relating to the physical conditions required for a cremation retort or a cinerator facility or acceptable procedures for the operation thereof. Industrial Equipment and Engineering Company of Orlando, Florida, manufactures and sells over one-half of the existing cremation retorts in the United States and Canada. Kenneth Robinson, a vice president of that company who qualified and was accepted as an expert witness in the area of manufacturing, installing, maintaining and operating cremation retorts, has overseen the maintenance, repairs and overhaul of the respondent's retort since 1974 or 1975. One month prior to the hearing in this cause, Mr. Robinson found that the respondent's retort was operating in an efficient manner and in a manner acceptable to the standards of the industry. Respondent's staff possesses and utilizes the types of implements and tools customarily used in the industry for operation of the cinerator facility. It was Mr. Robinson's opinion that the operation of the respondent's retort and the procedures utilized would allow the cremains of one individual to be separated and contained separately from other cremains. He did admit that it was impossible to guarantee a 100 percent separation of each set of cremains. The flooring in the respondent's retort has been replaced, but not after February of 1981. Mr. Robinson observed in September of 1982 that the respondent's retort floor was depressed, but the depression was not excessive or unusual based upon the amount of use it receives. It is possible that a piece of metal the size and configuration of the bridge work discovered by Mrs. Smith could become lodged into the uneven floor or a seam of a usable retort and not be extracted until a later cremation. During the useful life of a retort, it is anticipated that a certain degree of wear to the floor in the form of depressions and unevenness will occur. Retort floors do erode over a period of time and cracks do appear. A crack less than three-eighths of an inch is acceptable before repair is required. When the equipment is heated, the material expands and seals off the crack.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding respondent guilty of violating Sections 470.025(1) and 470.036(1)(h) and (o), Florida Statutes, for operating between June 30, 1980 and January 11, 1982, without a valid cinerator facility license and for failing to file the reports required by Rule 21J-28.01, Florida Administrative Code, and imposing an administrative fine against the respondent in the amount of $100.00. It is further RECOMMENDED that the remaining charges and allegations of the Complaint be dismissed. Respectfully submitted and entered this 7th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of March, 1983. COPIES FURNISHED: Grover C. Freeman, Esquire 4600 West Cypress (Suite 410) Tampa, Florida 33607 Fred W. Baggett, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Edward P. O'Dowd Executive Director Board of Funeral Directors & Embalmers Room 407 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The issue in the case is whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a Florida-licensed removal service, holding a license issued by the Florida Board of Funeral Directors and Embalmers. Although the Administrative Complaint identifies the license number as FR-0000016, a notarized Certification of Licensure (Petitioner's Exhibit 1) does not include the license number, but references the company and owner by name and sets forth relevant dates of licensure and inspection. The Petitioner's principal owner is an individual identified as Joseph Damiano. According to a lawsuit filed in 1995, a woman identified as Joyce Read died in 1994. Her family, through the Bay Pines Funeral Home, arranged for disposition of the body by cremation. The funeral home forwarded the body to the Respondent and to Cremation Systems International, Inc., another company owned by Joseph Damiano, for cremation. The family received an urn containing ashes that they believed were those of Joyce Read. Subsequently, the family became convinced that the ashes were not those of Joyce Read. They obtained legal representation, an investigation ensued, and eventually a lawsuit was filed. Howard Read and Patricia Read v. Cremation Systems International, Inc.; Professional Transport Systems, Inc.; Memorial Services International, Inc.; and or Memorial Services of Florida, Inc., d/b/a Bay Pines Funeral Home; and Joseph Damiano. Pinellas County Circuit Court, Case No. 95-6994-CI. The Amended Complaint in the lawsuit alleges that the actions of the Professional Transport Systems, Inc.; Cremation Systems International, Inc.; and Joseph Damiano, constitute intentional infliction of emotional distress and civil conspiracy. The factual allegations of the lawsuit indicate: that bodies were improperly transported and stored prior to cremation; that little to no effort was made to segregate the ashes of one body from another prior to being packaged for return to families; that ashes were improperly scattered in a parking lot; and that burials "at sea" were sometimes accomplished by flushing ashes down a toilet. The lawsuit alleges that the actions taken by employees of the Professional Transport Systems, Inc., and Cremation Systems International, Inc., occurred with the knowledge and approval of Joseph Damiano. After a jury trial on the lawsuit, the Reads prevailed. A Final Judgment was entered awarding $1,750,000 in compensatory damages to Howard Read, $1,750,000 in compensatory damages to Patricia Read, and entering total punitive damages against the Professional Transport Systems, Inc., Cremation Systems International, Inc., and Joseph Damiano in the amount of $30,000,000, for a total award of $33,500,000. The attorney who represented the Reads in the lawsuit testified in the instant hearing as to the difficulty encountered in attempting to collect the final judgment against the Respondent and the co-defendants in the case. His testimony essentially indicates that owner Damiano was uncooperative, refused to present himself for deposition, and hired and fired a series of lawyers. Eventually, the Reads settled the case after agreeing to receive substantially less than the jury awarded them after the trial. In a similar case, Cremation Systems International, Inc., was found by a jury to have engaged in substantially the same behavior. (Heather Smith v. Cremation Systems International, Inc., Pinellas County Circuit Court, Case No 96-6141 CI-19). The jury awarded compensatory damages in the amount of $500,000 and punitive damages in the amount of $5,000,000 to the Plaintiffs in the case. At the time of the behavior, Joseph Damiano was a principal owner of Cremation Systems International, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Funeral Directors and Embalmers, enter a final order revoking the licensure of Professional Transport Systems, Inc., and imposing a fine of $10,000. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 11th day of July, 2002. COPIES FURNISHED: Professional Transport Services, Inc. c/o Joseph S. Damiano 1420 Southwest 27th Terrace Fort Lauderdale, Florida 33312 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Respondent John Competiello currently holds Funeral Director's License No. 1468, and Embalmer's License No. 1656, both of which were issued by the Petitioner. Mr. Competiello is the licensed funeral director and embalmer in charge of the Respondent Home for Funerals, Inc. The Respondent Home for Funerals, Inc. holds Establishment Operating License No. 994 issued by the Petitioner. The Respondent Competiello has been a licensed funeral director for approximately eight years. Prior to his employment with the Respondent Home for Funerals, Inc., Competiello had never served as the general manager of a funeral home. Competiello was hired as the general manager of Home for Funerals, Inc., and he commenced work on August 8, 1976. Home for Funerals, Inc. was an operating funeral home and crematory when Competiello became general manager. Home for Funerals, Inc. had been properly licensed with the Petitioner as a crematory. Prior to September 1, 1976, the license of Home for Funerals, Inc. expired, and no application was made on behalf of Home for Funerals, Inc. for inspection and licensing of the crematory. From September 1, 1976 until approximately September 23, 1976, approximately 54 cremations were performed at Home for Funerals, Inc. by John Competiello. Competiello did not know that Home for Funerals, Inc. had not been properly inspected and licensed by the Petitioner, and as soon as he was advised of that fact he immediately ceased all cremation activities at Home for Funerals, Inc. Competiello was never formally advised by the Petitioner that Home for Funerals, Inc. was not properly licensed, but this fact was communicated to him orally by a representative of the Petitioner. Petitioner issued a permit for a crematory at Home for Funerals, Inc., on October 23, 1976. From the date that Competiello was advised of the licensing failure until the date that a new permit was issued, no cremations were performed at Home for Funerals, Inc. The permit for a crematory at Home for Funerals, Inc. was issued by the Petitioner with full knowledge that cremations had been performed at Home for Funerals, Inc. during a time when Home for Funerals, Inc. was not properly licensed with the Petitioner as a crematory. There was no evidence offered at the hearing from which it could be determined that any of the cremations performed at Home for Funerals, Inc. during the time that it was not properly licensed with the Petitioner were performed in other than a proper manner. During the time that Competiello has been the licensed funeral director in charge of Home for Funerals, Inc., Home for Funerals has had a business relationship with an entity known as the National Cremation Society, Inc. The National Cremation Society, Inc. is a membership organization. Members of the public pay a fee to become members of the society. The fee entitles members to certain services including cremation upon death at a set price which cannot be increased. National Cremation Society, Inc. utilized the services of Home for Funerals. If a member of the Society died within the service area of Home for Funerals, the member's family would first notify the National Cremation Society, which would in turn notify Home for Funerals. Home for Funerals would conduct the cremation. The National Cremation Society has been Home for Funerals' largest account. There was evidence offered at the hearing which would appear to indicate that Home for Funerals and the National Cremation Society have more than merely a close business relationship. For example, one employee of National Cremation Society was paid on checks from Home for Funerals. The evidence would not, however, support a finding that Home for Funerals and National Cremation Society were alter egos of one another, or were other than separately operating entities. The National Cremation Society maintains an office in Miami Beach, Florida. Ms. Martha Lewis is the office manager. Ms. Lewis is not a licensed funeral director nor an embalmer. Martha Lewis' duties with the National Cremation Society were generally as follows: (a) to receive incoming calls regarding the deaths of Society members or other persons who desired cremation services; (b) to contact a removal service to pick up the deceased's body; (c) to obtain information required for the death certificate from the deceased's family or friends, and to collect money owing to the National Cremation Society; (d) to obtain the necessary medical certification required for the death certificate; (e) to deliver the completed death certificate and burial transit permit application to the Bureau of Vital Statistics for filing and to obtain the necessary burial transit permit; and (f) after cremation, if desired by the deceased's family, to pick up the deceased's remains from the funeral home and to deliver them to the family. Prior to November 1, 1976 Martha Lewis obtained the information for death certificates, signed the certificates herself, and filed them with the Bureau of Vital Statistics in Miami. Subsequent to November 1, 1976, Ms. Lewis was advised by an employee of the Bureau of Vital Statistics that they would no longer accept death certificates that were signed by her, but rather that the death certificates would need to be signed by a licensed funeral director. During this period the National Cremation Society was utilizing the services of Slade Funeral Home in Dade County, Florida to conduct cremations of Society members. The director of the Slade Funeral Home did not wish to sign the death certificates. The National Cremation Society arranged with Mr. Competiello to sign the certificates. Ms. Lewis would prepare the certificates, and forward them by bus to Mr. Competiello. Mr. Competiello would pick up the certificates at the bus terminal, sign them, and return them, also by bus, to Ms. Lewis. This pattern was followed in connection with the deaths of Leonard Schmidt, Joseph Miller, Leonard Scott, Winifred Piepper, Lina Bracher, Elizabeth Spray, James Halpin, Gertrude Keller, and others. The deaths occurred in Dade County, and the cremations were performed at the Slade Funeral Home. Neither Competiello nor Home for Funerals ever had any connection with the deceased persons other than through Competiello's signing of the death certificates. Neither Home for Funerals nor Competiello ever had custody of the bodies. Competiello did not gather any of the information that was set out on the death certificates and he made no examination as to the accuracy of the information. Competiello performed this service as a favor to Home for Funerals' largest account in order to facilitate the filing of death certificates by the National Cremation Society. Neither Competiello nor Home for Funerals had any formal relationship with Slade Funeral Home. Mr. Competiello testified that Slade Funeral Home acted as the agent for Home for Funerals in performing the cremations; however, insufficient evidence was offered to establish that Slade Funeral Home was in fact the agent for Home for Funerals for these purposes. In fact, Slade Funeral Home did not consider itself Home for Funerals' agent. Barbara Reynolds was employed by the National Cremation Society from October 12, 1976 through March 30, 1977 at its Sarasota office. Barbara Reynolds' duties with National Cremation Society were essentially as follows: the secretary or office manager would advise her that a death had occurred, and she would contact Home for Funerals to make arrangements to remove the body; she would contact the deceased's relatives, and obtain information for the death certificate which was not already in National Cremation Society's files, and fill out the death certificate; (c) obtain the required medical certification for the death certificates (d) file the completed death certificates and the burial transit permit applications and receive the burial transit permit; (e) at the request of the deceaseds family, she would pick up the deceased's remains at Home for Funerals, and deliver them to the family; (f) at the deceased's family's request she would place newspaper obituary notices; (g) she would handle paper work for application for the deceased's Social Security benefits or Veterans Administration benefits. Death certificate forms utilized were signed by Mr. Competiello. Mr. Competiello signed the forms in blank and provided them to National Cremation Society. Ms. Reynolds would file the completed death certificate when she obtained all of the information. Since the certificates had already been signed by Mr. Competiello, she would not need to obtain any further signature from him. Mr. Competiello did not gather any of the information for the death certificates and he made no independent examination of the facts set out on the certificates. In fact, Mr. Competiello never saw the death certificates after he signed them in blank. Mr. Competiello provided National Cremation Society a supply of signed blank burial transit permit applications in the same manner. There was no evidence offered at the hearing from which it could be concluded that either Home for Funerals, Inc. or John Competiello received any direct compensation from the National Cremation Society in connection with cremations of Society members conducted by the Slade Funeral Home in Dade County. It does not appear from the evidence that any of the cremations were performed in other than a proper manner, or that any member of the public was directly injured by the activities of Competiello and Home for Funerals, Inc. It does appear that the office of the Bureau of Vital Statistics in Dade County was uncertain as to the necessity for having death certificates signed by a licensed funeral director. Prior to November 1, 1976, the office accepted death certificates for filing which were not signed by a licensed funeral director. At no time did the Bureau of Vital Statistics either in Dade County or any place else complain to Competiello about his practices in connection with the signing of death certificates or burial transit permit applications.
Recommendation That a final order be entered adjudicating the Respondent John Competiello guilty of performing cremations at Home for Funerals, Inc., at a time when Home for Funerals, Inc. was not properly registered as a crematory; and reprimanding him for such conduct. That a final order be entered adjudicating the Respondent Home for Funerals, Inc. guilty of performing cremations at a time when it was not properly registered as a crematory, and reprimanding it for such conduct. That a final order be entered adjudicating the Respondent John Competiello guilty of violations of Section 382.081 Florida Statutes (1975), and Section 470.1D(6), Florida Statutes (1976 Supp.) as set out in Paragraphs 4 and 5 of the Conclusions of Law above, and suspending the licenses of John Competiello to practice as an embalmer and as a funeral director for a period of one year. That a final order be entered adjudicating the Respondent Home for Funerals, Inc. in violation of Chapter 470.12 (4)(a), Florida Statutes (1976 Supp.) and suspending the license of Home for Funerals, Inc. as a funeral establishment for a period of one year. RECOMMENDED this 2nd day of November, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 James A. Devito, Esquire Devito and Colen 5362 Central Avenue St. Petersburg, Florida 337D7
The Issue Whether the Funeral Director's license and/or the Embalmer's License of Donald B. Johns should be suspended or revoked. Whether the license of the Donald B. Johns Funeral Home should be suspended or revoked.
Findings Of Fact The Respondent, Donald B. Johns, holds a Funeral Director's license, No. 1473, and an Embalmer's license, No. 1633. The Donald B. Johns Funeral Home is licensed as No. 827. A complaint was filed against Respondent by Petitioner for the violation of Section 470.10(6), 470.12(1)(k), and 470.12(2)(p), Florida Statutes, and the Respondent Donald B. Johns Funeral Home was charged with violations of Section 470.12(4)(a), 470.12(4)(c), and 470.30(6), Florida Statutes. A request for a formal hearing for an appointment of a hearing officer was made by the Respondent, Donald B. Johns, and the Petitioner, State Board of Funeral Directors and Embalmers, petitioned for this hearing. Notice to appear were duly sent to the parties. Mr. and Mrs. James Jesse and the decedent's grandmother, Mrs. Jesse, contacted the Donald B. Johns Funeral Home in arranging for the funeral of the decedent, Jason Jesse, an infant. The Respondent, Donald B. Johns, as the funeral director and embalmer, appointed one Thomas Davis to make the arrangements for said funeral. The negotiations and arrangements included meeting the family at the funeral home; inquiry as to the desired services; quotation of the costs thereof; showing the family a casket catalog and ordering a casket for the family; requiring the family to complete the paperwork for the cremation; offering a cremation urn for sale; arranging a viewing for the family at the funeral home; advising the family on the availability of services at the cemetery selected by the family; discussing the availability of a sign-in book and name cards at the funeral home; attending services at the church; and attempting to correct defects in the casket and presentation of the body at the viewing. The Respondent Donald B. Johns was aware of and permitted Thomas Davis to handle the funeral arrangements on behalf of the funeral home which the Respondent owned and operated as the licensed funeral director in charge, when he knew that said Thomas Davis was only an attendant and not licensed as a funeral director. The funeral arrangements were not satisfactory to the family of the decedent and there were misunderstandings and unnecessary and trying experiences for the family.
Recommendation Revoke the licenses of Donald B. Johns and the Donald B. Johns Funeral Home, impose a fine under Section 470.34 in an amount not to exceed $1,000.00. DONE and ORDERED this 27th day of March, 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: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville Florida 32202 Donald B. Johns 3890 Andrews Avenue Ft. Lauderdale, Florida 33309
