The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Michael W. Thomas has been a licensed funeral director and embalmer in the state of Florida, having been issued license number FE0003256. In November of 1993, Richard Hector was extremely ill and dying at A Better Way in Christ Mission in Ft. Pierce, Florida, a homeless shelter for men where he had lived and worked. In his final days, he was attended by a hospice agency. The Mission employees summoned Lena Cohens, Hector's sister, to travel from New York where she lived to Ft. Pierce to be with her brother. The St. Lucie County Department of Human Services maintains a rotation list for the funeral homes in the area to be responsible to care for the remains of indigents. Respondent was the designated business for the month of November, 1993. Under local ordinances, if there is no next of kin or if the next of kin files for indigency, the County will determine if the death is a County case and eligible for payment of burial expenses by the County. On November 15, 1993, at 2:40 p.m., Hector died at the Mission. The hospice employees advised the Mission employees that hospice would make arrangements to have his remains transported to a funeral home, and a Mission employee went to the motel where Cohens was staying to bring her back to the Mission. Someone contacted Respondent who dispatched a removal service, Tri- County Mortuary Services, to pick up the body of Hector at the Mission and transport it to Thomas & Sons Funeral Home. On November 16, 1993, Lena Cohens, Hector's sister, and Libby Piersall, one of the directors of the Mission and a friend of Hector, went to Thomas & Sons Funeral Home to make funeral arrangements. They took with them clothes for Hector to be used for his viewing and his burial. Respondent's mother, Eliza Thomas, was present at the funeral home when they arrived, and Respondent was not. Cohens and Piersall identified themselves to Respondent's mother and told her why they had come. They said they wanted a viewing of Hector for family and friends. Eliza Thomas told them that Hector would not need any clothes because they would just dig a hole, put the body in a box, and put the box in the ground. Cohens and Piersall became very upset at Respondent's mother's explanation of how the body would be handled and left the funeral home without authorizing Thomas & Sons Funeral Home to perform any services. Specifically, there was no discussion regarding embalming the body. Cohens and Piersall returned to the Mission and told Chuck Kramer, a Mission employee, what had happened at Thomas & Sons Funeral Home. Cohens told Kramer she wanted a different funeral home to care for her brother's remains. Kramer contacted Buddy Hobbs at Haisley-Hobbs Funeral Home and requested that he take over the arrangements so they could be handled in a better manner and so the family could have a viewing. Based upon what he was told, Hobbs advised Kramer that he could not do anything because the County would take over the arrangements. Hobbs explained to Kramer about the County's rotation list and that Thomas & Sons Funeral Home was on the list for November. The following morning, Piersall and Cohens went to the County's Department of Human Services to apply for County benefits for an indigent funeral. While they were there, Kramer began going through Hector's belongings at the Mission. Kramer found a bank statement and bank book showing that Hector had over $1,300 in the bank. As soon as Piersall and Cohens returned to the Mission, Kramer told them about the bank account. They again telephoned Hobbs, told him how much money Hector had, and Hobbs told them that he would make the arrangements for Hector's funeral for that amount of money. He made an appointment with them for 1:00 that afternoon, November 17. Cohens, Piersall, Kramer, and Reverend Ted Rice from the Mission went to the 1:00 appointment with Hobbs. Hobbs contacted Petitioner for guidance on how to handle the situation and was advised that he should prepare a release to be taken to Thomas & Sons Funeral Home. Hobbs prepared a release directed to Thomas & Sons Funeral Home which read as follows: I, LENA COHENS, sister of RICHARD HECTOR, Deceased, hereby authorize the release of the remains of my brother, RICHARD HECTOR, to Haisley-Hobbs Funeral Home of Ft. Pierce, Florida. The release was signed by Lena Cohens, witnessed by Libby Piersall and Chuck Kramer, and notarized. Cohens, Piersall, Kramer, Rice, Hobbs, and Victor Hankins, an employee of Haisley-Hobbs, then went to Thomas & Sons Funeral Home with the release to pick up the body of Richard Hector. When they arrived there, only Eliza Thomas was present. Hobbs told her who he was and then introduced everyone else. He gave her the release and advised her that they were there to pick up Hector's body. She told him she would not release the body and telephoned Respondent who came to the funeral home. When Respondent arrived, Hobbs gave Respondent the release. Respondent advised Hobbs that he would not release the body until after someone paid him $420 to reimburse him for transporting and embalming the body. Hobbs asked Respondent if Respondent understood what he was saying and that Respondent could not hold the body as ransom. Respondent told Hobbs that Hobbs could call it whatever he wanted but that Respondent would not release the body until after he was paid. Respondent then told the group to leave his place of business. Respondent's refusal and stated reason were heard by Piersall, Rice, and Kramer. Respondent stated no other reason for his refusal to release the body. Specifically, Respondent did not say anything about his belief that Hector was a County case. The group left Thomas & Sons Funeral Home without Hector's remains. On November 18, Hobbs called Petitioner again to advise what had happened. One of Petitioner's attorneys called Hobbs back and advised that the attorney had spoken to Respondent and that Respondent would be calling Hobbs to come and pick up the remains. Instead, Respondent telephoned the Mission and told Kramer to have Haisley-Hobbs come and pick up the body. Kramer then called Hobbs, and Hobbs sent a driver and another employee of Haisley-Hobbs to Thomas & Sons Funeral Home to pick up the body. When they arrived, Respondent refused to give them the body and told them that he would deliver the body to Haisley-Hobbs instead. Hector's body arrived at Haisley-Hobbs later that same day. In a prior administrative proceeding, Petitioner filed an administrative complaint against Respondent on April 4, 1989, alleging, inter alia, that Respondent had refused to promptly surrender the custody of a dead body upon the express order of the legally authorized person, and Respondent requested a formal hearing regarding that administrative complaint. That prior matter was subsequently referred to the Division of Administrative Hearings where the matter was scheduled for formal hearing. After the parties engaged in discovery, that administrative complaint was referred back to the probable cause panel of the Board of Funeral Directors and Embalmers for re-consideration. In that prior action, the probable cause panel determined that although Respondent had violated the statutory requirement to surrender properly the custody of a dead human body upon the express order of the legally authorized person, the circumstances surrounding that refusal dictated that that administrative complaint be dismissed with only a letter of guidance issued to Respondent. That letter of guidance, dated November 22, 1989, and sent to Respondent at Thomas & Sons Funeral Home, became a permanent record in Respondent's licensure file. That letter of guidance does not, however, constitute prior disciplinary action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and requiring Respondent to pay an administrative fine in the amount of $1,000 by a date certain. DONE and ENTERED this 13th day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Donnette Reid, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Victor John E. Vale, II, Esquire 205 South Second Street Ft. Pierce, Florida 34950 Susan Foster, Executive Director Department of Business and Professional Regulation Board of Funeral Directors and Embalmers 1940 North Monroe Street Tallahassee, FL 32399-0754 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's personal and operating licenses should be suspended, revoked, or withdrawn.
Findings Of Fact The State Board of Funeral Directors and Embalmers charged Respondent, Elmer E. Hewitt, as follows: The Respondent, Elmer E. Hewitt, violated Section 470.30(4), Florida Statutes, and Rule 21J7-08 of the Rules of the State Board of Funeral Directors and Emba1mers for Florida in that he permitted Evergreen Mortuary to be operated without the full charge, control and supervision of an individually licensed funeral director and licensed embalmer, and in that he suffered Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embaliningby ban improper use of his license, to wit by representing himself to be the regularly employed licensed funeral director and embalmer in charge of such establishment when he was not so employed but rather employed full time as a social worker in Miami, Dade County, Florida; The Respondent , Elmer E. Hewitt, violated Section 470.12(1)(k), Florida Statutes, in that as a licensed embalmer he violated the provisions of Chapter 470, Florida Statutes, and in particular, Section 470.30(4). The Respondent, Elmer E. Hewitt, violated Section 470.l2(2)(p), Florida Statutes, in that as a license funeral director he violated provisions of Chapter 470, Florida Statutes, and in particular Section 470.30(4). The Respondent, Elmer E. Hewitt, is listed in the records of the State Board of Funeral Directors and Embalmers of Florida as a licensed funeral director and embalmer regularly employed in charge of Evergreen Mortuary located at 325 Julia Street, Key West, Florida. Mr. Hewitt executed an affidavit on a formal application supplied by the Board stating that he was a licensed funeral director and embalmer regularly employed and in charge of the Evergreen Mortuary. Respondent also executed an affidavit in which it appears that he is a funeral director of Evergreen Mortuary and the only one licensed embalmer and funeral director employed by that establishment on a regular and full time basis. Mr. Hewitt is employed as a Social Worker I for the Comprehensive Alcohol Program, 1400 Northwest Tenth Avenue, Miami, Florida, and maintains a residence in Miami, Florida. The Board contends: (a) That the establishment operating license and the accompanying affidavits executed by Elmer E. Hewitt were false in that Mr. Hewitt was not and is not the licensed funeral director regularly employed in charge of Evergreen Mortuary and that he is not employed by Evergreen Mortuary on a regular and full time basis at his location in Key West, Florida, but rather is employed full time in Miami, Florida; That Mr. Hewitt acted as agent for or in behalf of or in furtherance of the interests of the Respondent Evergreen Mortuary in obtaining an establishment operating license; That he suffered the owners of Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embalming by improper use of his license; That Mr. Hewitt was not employed and in charge of Evergreen Mortuary within the meaning of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent, Elmer E. Hewitt, violated Sections 470.30(4), 470.12(1)(k), and 470.12(2)(p), Florida Statutes; That Respondent, Evergreen Mortuary, violated Section 470.12(4)(a), Florida Statutes, in that Elmer E. Hewitt, a person connected with Evergreen Mortuary as am employed agent, committed violations while acting as agent for or in behalf of or in furtherance of interests of Evergreen Mortuary. Respondent, Elmer E. Hewitt, contends: That he in fact has a residence in Key West, Florida; That he devotes his full time as funeral director and emba1mer to the business of Evergreen Mortuary; That although he is employed on a full time basis at the Comprehensive Alcohol Program, he fulfills his obligations to that job at night and on weekends and other times when he is not performing his duties as a full time employee of Evergreen Mortuary. The Hearing Officer further finds: That under the terms of Respondent Hewitt's employment for the Comprehensive Alcohol Program in Miami, Florida, he is required to work a 40-hour week, but there was no evidence submitted to show' that Respondent Hewitt does in fact work a 40- hour week in his employment in Miami, Florida; The evidence shows and it is found that Elmer E. Hewitt is a full time funeral director and embalmer within the requirements of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent Hewitt is employed by Evergreen Mortuary on a regular basis as required by the statutes and the Rules of the State Board of Funeral Directors and Embalmers; That air transportation and telephone service from Miami to Key West provide current information and valid transportation so that the business of Evergreen Mortuary can be conveniently performed even though Respondent Hewitt may be in Miami, Florida.
Recommendation Dismiss the proceedings for the suspension of Elmer E. Hewitt, licensed funeral director and embalmer and dismiss the petition for revocation of the operating license of Evergreen Mortuary. DONE and ORDERED this 12th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth Norrie, Esquire Counsel for Petitioner Robert I. Spiegelman, Esquire Counsel for Respondent =================================================================
Findings Of Fact Respondent, Sowell, is currently a licensed funeral director and embalmer in the State of Florida. Respondent, Sowell's Funeral Home, is a licensed funeral establishment in the State of Florida. Sowell is the licensed funeral director and embalmer in charge of Sowell's Funeral Home. On April 19, 1978, Mr. Eston Singletary died in Jacksonville, Florida. His divorced wife, Gussie Wright Singletary, called the Reverend Charles James Crosby to come to her former husband's death bed. Reverend Crosby is minister of the New Trinity Baptist Church in Jacksonville, and, while never a licensed funeral director and embalmer, he worked for the Sowell Funeral Home from 1949 to 1952 and from 1960 to 1968. Reverend Crosby has no financial interest in Sowell Funeral Home. Mrs. Singletary claims that Reverend Crosby represented to her that he owned Sowell's Funeral Home. It was for this reason, says Mrs. Singletary, that she contacted Reverend Crosby and agreed to turn her former husband's body over to Sowell's. However, there is no evidence to establish that Sowell either authorized or knew about such a representation on the part of Reverend Crosby, if it in fact occurred. Upon the advice of Reverend Crosby, Mrs. Singletary released her former husband's body to Sowell at the hospital. Mrs. Singletary did not have adequate funds to cover the expense of the funeral preparations so Reverend Crosby paid for the funeral and Mrs. Singletary agreed to reimburse him. Mrs. Singletary asked Reverend Crosby to handle the details of the funeral for her. Thereafter, Sowell handled the body of Eston Singletary, embalmed it and signed the required death certificate as funeral director. The evidence shows that in connection with Singletary's death, the Reverend Charles Crosby met with the family of the deceased, including Mrs. Singletary; assisted the deceased's family in planning the details of the funeral; advised the family regarding the release of the body to Sowell; arranged for flowers for the funeral; accompanied the family to a local casket company for its selection of a casket in which to inter the deceased; met with members of the family to collect information for completion of the required death certificate; and received case and checks from family members and other sources in an amount exceeding Sowell's charges by $142.76. When Sowell was contacted by Reverend Crosby, Crosby represented that he was acting on behalf of the deceased's family. It was to Reverend Crosby and not to the family that Sowell delivered the receipt for the services he rendered. On April 27, 1978, Reverend Crosby, on behalf of the family and Sowell, on behalf of the funeral home, entered into a contract for services to be provided in connection with the funeral of Eston Singletary. Reverend Crosby obtained personal information regarding the deceased from the family for Sowell. Sowell then arranged for the obituary notice. The night before the funeral there was a viewing of the deceased at the funeral home. Reverend Crosby was there escorting the widow. The following day, Reverend Crosby served as master of ceremonies at deceased's funeral which was conducted at a church other than the one with which the Reverend Crosby was associated. Sowell was in attendance at the deceased's funeral. While the widow testified that she had not seen Sowell at the funeral, such testimony is insufficient to overcome Sowell's testimony that he did attend the funeral since the widow, having never met Sowell, would not have recognized him if she had seen him. Sometime subsequent to the funeral, the widow went to the funeral home to get a receipt. Since the funeral home was closed at the time, she called Sowell at his home. Sowell informed her that the receipt had been given to Reverend Crosby. With regard to the remaining charge, the evidence was incontrovertible that the funeral directors and embalmers licenses of Sowell were suspended pursuant to section 470.10(1), Florida Statutes, when he performed the duties of a funeral director in connection with the death and funeral of Willy D. Whitehead on or about September 15, 1978. The suspension was occasioned by the timely payment of the annual license fee. Payment was made of renewal on October 19, 1978, at which time the licenses were reinstated.
The Issue The issue is whether Petitioner's application for licensure as a funeral director and embalmer should be denied on the grounds set forth in the Board of Funeral, Cemetery and Consumer Services' March 1, 2019, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Charles Williams, born on February 12, 1976, attended Gumpton-Jones College of Funeral Service in Atlanta, Georgia, graduating in February 1998. Mr. Williams received his embalmer license in March 1999 and became a licensed funeral director on April 12, 1999. Mr. Williams was working as a licensed funeral director and embalmer at George H. Hewell and Son Funeral Home in Jacksonville when he was arrested in 2004 and charged with sexual battery under section 794.011(2)(a), Florida Statutes (2004), which makes a capital felony of an adult’s committing sexual battery upon, or in an attempt to commit sexual battery injuring the sexual organs of, a person less than 12 years of age. The facts alleged in the charging affidavit were that Mr. Williams committed the violation by putting his mouth on the penis of a person less than 12 years of age. Mr. Williams stipulated that his victim was an 11-year-old boy. On March 6, 2006, Mr. Williams entered a plea of nolo contendere to a charge of lewd and lascivious molestation against a victim less than 12 years of age, a life felony under section 800.04(5)(b), Florida Statutes (2006). The court adjudicated him guilty and sentenced him to 12 years in prison followed by 13 years of probation/community control upon release. His conviction under section 800.04 means that Mr. Williams is designated a sexual predator under section 775.21(4)(a), Florida Statutes. Mr. Williams testified on his own behalf via deposition. He described going to work part-time for Masters Funeral Home in Palatka in 1993, while he was still in high school. He washed cars, dug graves, and removed bodies for Masters Funeral Home while learning about the funeral business. He graduated high school in 1994, the same year he served a one-year apprenticeship at Masters Funeral Home. In 1995, Mr. Williams obtained an intern license for embalming. He served a one-year internship at Masters Funeral Home and then began his studies at Gupton-Jones College of Funeral Service in September 1996. He graduated with an associate of science degree on February 27, 1998. Mr. Williams returned to Palatka and applied for his funeral director intern license. In his deposition, Mr. Williams explained that the internship lasts one year. He performed the bulk of his internship at Masters Funeral Home. Mr. Williams also spent about one month at Hardage-Giddens Funeral Home in Jacksonville, part of the Service Corporation International chain of funeral homes. Mr. Williams described Hardage-Gibbons as an “assembly line.” He quit the job because he did not wish to employ his training working in a “factory.” He came back to Masters Funeral Home to complete his internship. Mr. Williams obtained his embalmer license in March 1999 and his funeral director license on April 12, 1999. For a time after receiving his funeral director license, Mr. Williams left the profession to work as a uniformed security guard at the Clay County Courthouse. In October 1999, Mr. Williams decided to join the United States Air Force because jobs were scarce in the funeral industry at that time. His initial enlistment was for four years but he lasted only six months. Mr. Williams testified that he did not disclose his homosexuality when he enlisted, but that word eventually got around that he was gay. Because this was during the period of the military’s “don’t ask, don’t tell” policy, Mr. Williams was granted an entry level separation from the Air Force after completing basic and security forces training. From 2000 until late 2003, Mr. Williams worked at Moring Funeral Home in Melrose. He described it as a small, family-run funeral home at which he performed every conceivable service that a licensee could, including meeting with families, embalming, digging graves, and transporting bodies. He did whatever needed doing. In December 2003, Mr. Williams went to work for George H. Hewell and Son Funeral Home in Jacksonville, another family-owned funeral home. They had two funeral homes and were very busy, going out on over 400 calls per year. Mr. Williams worked there until November 2004, when he was arrested. Mr. Williams testified that he was sentenced in 2006 and served 10 years and three months of his 12-year sentence. Mr. Williams credibly testified that he was a model prisoner. He was released on November 15, 2015. Since his release, Mr. Williams has been on sex offender probation, and will remain so until November 15, 2028. The terms of sex offender probation are fully described at section 948.30, Florida Statutes. Mr. Williams wears a monitoring bracelet on his ankle, is required to participate in a sex offender treatment program, reports regularly to his probation officer, and is restricted in terms of his proximity to children and places where children regularly congregate. Mr. Williams is required to disclose his status to prospective employers. The evidence established that Mr. Williams has abided by all terms of his sex offender probation. Mr. Williams testified that his first job upon release was at Gator Communications Service in Gainesville, where he worked answering phones for several months. He next went to work for Kirkland Enterprises, a landscape company in Green Cove Springs. Mr. Williams worked for about 10 months at Kirkland Enterprises, then took a job with Roller Die + Forming, a metal fabrication plant in Green Cove Springs. Since mid-2016, Mr. Williams has worked as a receiver and forklift operator at KeHE Distributors, a distributor of organic foods. While he was incarcerated, Mr. Williams allowed his funeral director and embalmer licenses to lapse. On May 31, 2018, Mr. Williams submitted to the Board his application for a “Combination Funeral Director and Embalmer License by Florida Internship and Examination.” The Board deemed his application complete on June 27, 2018. On March 1, 2019, the Board denied the application for the reasons set forth in the extended quotation in the Preliminary Statement, supra. At the hearing and by deposition, several witnesses testified on behalf of Mr. Williams, attesting to his abilities as a funeral director, and more generally, as to his good character. Charles Miller is a receiving lead at KeHE Distributors, supervising about a dozen stockers. He has known Mr. Williams since May 2018. Mr. Miller is not Mr. Williams’s direct supervisor, but does oversee his work from time to time. Mr. Miller testified that Mr. Williams is conscientious, punctual, helpful, efficient, and diligent. He takes his job seriously and takes direction well. He is a good communicator, a “people person.” Mr. Miller stated that Mr. Williams has a clean work record and is one of the most popular members of the workforce at KeHE Distributors. Mr. Miller testified that he knows Mr. Williams wears an ankle bracelet. Mr. Williams told Mr. Miller that he had been incarcerated for a lewd and lascivious act, but did not say with whom or whether the victim was a minor. Mr. Miller did not press Mr. Williams for details. Mr. Miller’s wife, Ruth Ann Miller, also testified on behalf of Mr. Williams. Ms. Miller met Mr. Williams at the funeral of a person who had worked with her husband and Mr. Williams at KeHE Distributors. She also saw Mr. Williams at the funeral of his sister. On both occasions, she was impressed by his demeanor and helpfulness to the mourners, even at his own sister’s service. Ms. Miller stated that she does not know Mr. Williams well but that she could be his friend. She testified that Mr. Williams is attentive and “bubbly,” and has a way of putting people at their ease. Ms. Miller knew little about Mr. Williams’s criminal past. She knew he had been in prison and wore an ankle bracelet, but she did not know why. Eric Altman is a funeral director at Johnson Overturf Funeral Home in Palatka. He is a few years older than Mr. Williams and has known Mr. Williams since they were both children in the same small town, Bostwick. Mr. Altman did not interact much with Mr. Williams until the latter showed an interest in the funeral business as a teenager. Mr. Williams went to work for the “competition,” Masters Funeral Home in Palatka. They would run into each other and talk about the business. In 2001, Mr. Altman was working at a small funeral home in Green Cove Springs that he was hoping to buy. The home was shorthanded and Mr. Altman arranged for Mr. Williams to come to work there. Mr. Altman and Mr. Williams worked together for a few months. After this stint as a co- worker, Mr. Altman did not see Mr. Williams regularly. Mr. Altman testified that everything Mr. Williams did as a funeral director was appropriate. Mr. Williams showed initiative and ensured that things ran smoothly. Mr. Altman pointed out that a funeral is a bad place to make mistakes because people never forget them. A funeral director must pay close attention to detail, and Mr. Williams did that. Mr. Williams always made a good public appearance and was very compassionate, professional, and respectful. Mr. Altman noted that even now when he sees Mr. Williams in the public eye, he is always wearing a coat and tie, making the proper appearance. Mr. Altman testified that he had been aware that Mr. Williams went to prison for 10 years but did not have any firsthand knowledge of the facts of his case. Mr. Altman stated that he would hire Mr. Williams and would have no problems working with him. Mr. Altman stated that he could see from the beginning that Mr. Williams wanted to succeed in the funeral business. “It’s kind of in our blood . . . . It’s just not for everybody . . . . It has to be in you. You have to have the heart for it. And you want to succeed and do well and be well thought of in the community and the people you serve. And he has that.” Tony Sweat is a self-employed truck driver who met Mr. Williams when they both worked for Kirkland Enterprises in 2015 and 2016. Mr. Sweat was the lead foreman when Mr. Williams was hired as a driver and laborer. Mr. Sweat joked that as landscapers, he and Mr. Williams spent more time with each other than with their families. They became friends. After both men left Kirkland Enterprises, they stayed in touch by telephone but did not see much of each other, which Mr. Sweat attributed to their living in different towns. Mr. Sweat stated that he has only seen Mr. Williams two or three times in the last six months. Mr. Sweat testified that in January 2019, his mother- in-law died. He and his wife Summer had no clue how to even begin arranging for a funeral. Mr. Sweat knew that Mr. Williams had been in the funeral business and called him for advice. Mr. Williams recommended Masters Funeral Home in Palatka and accompanied the Sweats to the funeral home to assist them with the paperwork. He came to the funeral and was a support and comfort to Ms. Sweat. Summer Sweat testified that Mr. Williams was helpful, professional, supportive, and possessed a lot of technical knowledge regarding the funeral industry. He helped select the urn for her mother’s remains, set up a website for friends and family to make gifts in honor of the deceased, and did most of the speaking on behalf of the family at the funeral. Ms. Sweat testified that this was her only real exposure to her husband’s friend but that she was very happy with everything he did. Mr. Sweat testified that he spoke with Mr. Williams about his criminal conviction. Mr. Williams told Mr. Sweat that he had been charged with molesting a little girl. Mr. Williams said that he pled guilty but did not actually commit the crime. Mr. Williams used his homosexuality as an alibi, stating that he was a gay man and would never want to molest a little girl. Mr. Sweat believed Mr. Williams’s story. When counsel for the Board showed him the actual arrest affidavit, Mr. Sweat stated, “That’s crazy.” However, Mr. Sweat then defended Mr. Williams’s lack of candor. Mr. Sweat reasoned that Mr. Williams is gay, had just been released from prison for child molestation, and was going to work with “a bunch of roughnecks” at Kirkland Enterprises. It made sense that Mr. Williams would choose to shade his story in order to avoid ostracism, or worse, from a group of co-workers who are likely homophobic. Mr. Williams was not required to give his employer the full details of his criminal activity and understandably did not volunteer the true gender of his victim. Mr. Sweat concluded his testimony by stating, “I think y’all should give him a chance, maybe . . . I mean, the business side of it--like as far as handling funerals and stuff, I--he seems to thoroughly enjoy that and is pretty decent at comforting people.” Tiffany Desjardins is Mr. Williams’s immediate supervisor at KeHE Distributors. She testified that Mr. Williams is diligent, punctual, attentive to detail, and a hard worker. Ms. Desjardins attended the funeral of Mr. Williams’s sister. Though he was not working in any official capacity, Mr. Williams assisted the funeral director, Quincey Masters, in escorting and seating the family. Ms. Desjardins noted that Mr. Williams conducted himself in a professional manner. Ms. Desjardins stated that she would not hesitate to have Mr. Williams make final arrangements for her loved ones, even in light of his criminal past. She was aware that he went to prison, that his offense involved an 11-year-old boy, and that Mr. Williams is not allowed around children. Kale Cooper is the inbound supervisor at KeHE Distributors. He is Mr. Williams’s ultimate supervisor. Mr. Cooper also was aware of the details of Mr. Williams’s offense and also stated that he would not hesitate to have Mr. Williams assist in the burial or cremation of his loved one. Paul Roach is the head of maintenance at KeHE Distributors. He attended the funeral of Mr. Williams’s sister and was impressed by Mr. Williams’s professional manner under such difficult circumstances. Mr. Roach knew that Mr. Williams had been imprisoned for the sexual molestation of an 11-year-old boy. He nonetheless stated that he would hire Mr. Williams to conduct the funeral services of his wife, son, or daughters. Mr. Roach testified that he had already entrusted Mr. Williams with the remains of a loved one. When Mr. Roach’s mother died about three years ago, everyone in his family was “too brokenhearted” to retrieve her cremated remains from the funeral home in St. Augustine. Mr. Roach asked Mr. Williams to do it. Mr. Williams put on a suit, drove to St. Augustine, and made sure that the mother’s remains were safely delivered to the family. Jennifer Brown testified that in June 2016, her father died in a nursing home in Jacksonville. Ms. Brown’s daughter, Angie Knighten, had known Mr. Williams since childhood. Ms. Knighten immediately suggested to her mother that they call Mr. Williams for assistance in making the arrangements. Mr. Williams rode to Jacksonville with someone from the Masters Funeral Home to remove the body. Ms. Brown was impressed that Mr. Williams arrived wearing a suit and also by his professional manner. Mr. Williams assisted the family through the entire cremation process. Ms. Brown stated that she lacked the words to say how much she appreciated everything Mr. Williams did for her family. Ms. Brown did not know of Mr. Williams’s criminal history at the time of her father’s death. By the time of the hearing, she was aware of the details of Mr. Williams’s offense. Ms. Brown testified that, even knowing what Mr. Williams had done, she would still not hesitate to call on Mr. Williams to handle the final arrangements for her loved one. Angie Knighten, Ms. Brown’s daughter, also testified on behalf of Mr. Williams. She had known Mr. Williams when they were children and they remained friendly through their teen years. Mr. Williams went away for about ten years. Then, in 2016, Ms. Knighten met Mr. Williams while they were both working at Roller Die + Forming. Ms. Knighten asked Mr. Williams about the ankle bracelet he was wearing and he told her where he had been for the past ten years. Mr. Williams told her that he had been convicted of lewd and lascivious assault on a child. Ms. Knighten did not pry into details, but she did ask Mr. Williams if he did it. Mr. Williams told her that he did not, but that he went to prison rather than put the child through the ordeal of a trial. Ms. Knighten stated that this conversation occurred in about 2016 or 2017 and that she had not discussed the matter again with Mr. Williams. She conceded that she had no way of knowing whether Mr. Williams was continuing to deny culpability for his crime. Quincey Masters III is the owner and operator of Masters Funeral Home in Palatka and Interlachen. Mr. Masters is a second-generation funeral director and has been in and around the funeral business for his entire life. Though not formally proffered or accepted as an expert, Mr. Masters is clearly knowledgeable about all aspects of the funeral business. His opinion regarding the appropriateness of Mr. Williams’s re-entry into the profession is deserving of special consideration. Mr. Masters testified that he first saw Mr. Williams when Mr. Williams was about six years old. Mr. Williams’s grandmother had brought him to the Baptist church for a funeral in his little black suit. In about 1993, Mr. Williams approached Mr. Masters about coming to the funeral home to learn about the profession. Mr. Williams went to work for Masters Funeral Home while still in high school and was trained in the business there. Mr. Masters testified that Mr. Williams worked for him for at least two years after graduating from high school and before getting his funeral director license. Mr. Williams was separately licensed as an embalmer and, according to Mr. Masters, was very good at it. Mr. Williams made funeral arrangements and helped conduct funerals. Even after he obtained his funeral director’s license, Mr. Williams was willing to wash cars and answer the phone at the funeral home. Mr. Masters testified that the public never sees the majority of the work done in his profession: the dressing, cosmeticizing, and placement of bodies in caskets. Mr. Masters observed Mr. Williams performing these tasks and testified that he did them well. Mr. Masters stated that Mr. Williams excelled in the public aspects of the funeral director’s job. He was always very professional when working with the public. He was caring and well-dressed. Mr. Masters stated that family members are in a vulnerable state during a time of mourning. It is important that the funeral director show an appropriate degree of concern and understanding, and Mr. Williams never failed in that respect. Mr. Masters testified that Mr. Williams did a lot of body removals when he worked for Masters Funeral Home, even before he was licensed. The removal person goes into the home, nursing home, hospice, or worksite, and assesses the layout. He must determine the best way to remove the body with the proper respect, compassion, and tenderness, whether or not the family is present to witness the removal. Mr. Masters usually sends two people to do the job, but on out-of-town removals he might send only one. He recalled sending Mr. Williams alone to Gainesville at least once. Mr. Williams always showed the proper respect and was always available to go out on removal jobs when called. Mr. Masters was aware of Mr. Williams’s crime and conviction. In fact, Mr. Masters visited Mr. Williams in prison. Mr. Masters testified that he would have no problem working with Mr. Williams in any aspect of the funeral business. Mr. Masters testified as follows, addressing his words to Mr. Williams: I believe, beyond shadow of a doubt, that you should have the opportunity to be a licensed funeral director and embalmer. I believe you have a lot to offer, to give back I don’t believe the State would have to worry one bit about you. The public would be safe. And, in all candor, and as sincere as I can say it, I believe you would be an asset to the profession once again. Teresa Perez is a licensed mental health therapist with ITM Group in Gainesville. She is specifically trained in the treatment of sexual abusers. Ms. Perez has been Mr. Williams’s therapist for sex-offender treatment for the past two years. She testified that he has made progress and is currently in the “maintenance” phase of treatment, which will be completed in March 2020. Ms. Perez stated that only a minority of her clients achieve the maintenance level of treatment. Ms. Perez testified that Mr. Williams’s risk assessments show him to be in the lowest risk category for recidivism for a sexual offense. Mr. Williams has been administered the Rapid Risk Assessment for Sexual Offense Recidivism (“RRASOR”) static risk factor tool, the STATIC-99 test, and a dynamic risk factors test, all of which indicate a low potential for a repeated offense. Ms. Perez agreed with Board counsel’s statement that the RRASOR tool suggests that Mr. Williams is part of a group having an expected recidivism rate of seven percent within five years, and a recidivism rate of 11 percent over 10 years. Board counsel placed great emphasis on the risk posed by Mr. Williams as expressed by the 11-percent recidivism rate in the RRASOR testing. The undersigned is less troubled by that statistic because of the great confidence Ms. Perez placed in Mr. Williams’s progress in treatment. The undersigned reads the 11-percent recidivism rate not as an expression of Mr. Williams’s personal risk, but as a general statistic about the subjects of the RRASOR testing. The number does not mean that every individual in the group of 100 subjects has an 11-percent risk of relapse. Rather, it indicates that the group includes 11 men who are virtually certain to be repeat offenders, and 89 who in all likelihood will not commit a repeat offense. Based upon her professional qualifications and experience, Ms. Perez seemed sure that Mr. Williams would be one of the 89. The undersigned credits her opinion. Ms. Perez testified that Mr. Williams consistently engages meaningfully in treatment. He is self-disclosing and helpful to other members of his group therapy sessions. Ms. Perez stated that Mr. Williams has consistently acknowledged that he committed a sex offense in the past. She stated that the Association for the Treatment of Sexual Offenders has in recent years questioned the utility of requiring persons receiving treatment for sexual offenses to continue identifying themselves as “sex offenders.” If polygraph tests and continued monitoring during probation prove that the client is not engaging in negative behaviors and if therapy shows the client is addressing the roots of the issues influencing his choices, then it may be counter-therapeutic to insist that the client continue to identify himself as a sex offender. Ms. Perez believes that Mr. Williams meets these criteria. Ms. Perez testified that, in her professional opinion, Mr. Williams would not pose a risk to the health and safety of the public if he were to receive a license to be a funeral director and embalmer. Ms. Perez testified that Mr. Williams has taken full responsibility for his actions in molesting an 11-year-old boy in 2004. She was unaware that Mr. Williams had, outside of the therapeutic setting, denied committing the offense. Ms. Perez stated that she intended to discuss that issue with Mr. Williams and could adjust his course of treatment in light of their discussion. On his own behalf, Mr. Williams testified that he knows a lot more about himself, after 10 years in prison and ongoing therapy, than he did at the time of his offense. He noted that a funeral director deals almost exclusively with adults and that there is almost nothing a funeral director does that is outside of the public eye. He would never be with an unaccompanied minor when performing his duties. He believed there are no triggers in the funeral service profession that might cause him to relapse. Mr. Williams testified that he poses no danger to the public. Counsel for the Board points out that funeral directors meet with families to make funeral arrangements and in the course of performing their services come into contact with family members of all ages during times of extreme vulnerability. Though this point is valid, it does not undermine Mr. Williams’s contention that he would never be alone with a vulnerable child in the course of his duties. Counsel also notes that funeral directors may make contact with family and friends in the removal and transport of the deceased, although the evidence at the hearing established that no license is required to remove and transport a body. In summary, the Board has stipulated that Mr. Williams possesses the skills, knowledge, and technical qualifications for licensure as a funeral director and embalmer. Therefore, the only issues in this proceeding are Mr. Williams’s good character and whether granting him the license he seeks would create a danger to the public. Mr. Williams presented the testimony of friends, acquaintances, co-workers, current and former employers, fellow funeral directors, and his mental health therapist, who all recommended that Mr. Williams be granted licensure as a funeral director and embalmer. Mr. Williams’s entire criminal record consists of one crime, of an especially heinous nature, for which he faultlessly served his sentence and continues to comply with all terms of his probation. Mr. Williams’s personal demeanor at the hearing and his deposition testimony bespeak a man who has acknowledged his transgression, accepted his guilt, and seeks to continue repaying his debt. Twice after his release from prison, out of understandable shame and fear, Mr. Williams did not tell the full truth about his crime, once to an employer and once to an old friend. However, the evidence supports a finding that Mr. Williams has consistently acknowledged his guilt during therapy. Ms. Perez testified that it is not uncommon for an offender’s ability to relate the truth to persons outside the therapeutic setting to evolve over time. At the time of the hearing, Mr. Williams was forthright in stating that he had committed the act of lewd and lascivious molestation of an 11-year-old boy. Mr. Masters was a particularly impressive witness. His time in the industry and his lifelong knowledge of Mr. Williams combined to make his plea on behalf of Mr. Williams’s licensure moving and convincing. However, it was not just Mr. Masters but every testifying character witness who expressed complete confidence in Mr. Williams’s reformation and his ability to skillfully perform the duties of a funeral director. Even knowing that Mr. Williams had committed a terrible crime, witness after witness stated that they would, without hesitation, employ Mr. Williams to make the final arrangements for their loved ones. The undersigned noted how often witnesses told of Mr. Williams dropping whatever he was doing to help a friend with some funeral-related need--helping to arrange and host the service, picking up the body of a recently deceased relative, assuming responsibility for the safe transport of a loved one’s ashes--without thought of remuneration. Mr. Masters and Mr. Altman spoke in terms of the funeral business having to be in one’s blood. It is a calling, a vocation that is not for everyone. The evidence presented at the hearing made clear that Mr. Williams felt this calling from an early age, pursued it with diligence and vigor, and now seeks to resume his career in the funeral industry. Mr. Williams has demonstrated his reformed good character and that his licensure would not create a danger to the public. The undersigned finds that the Board should give him the opportunity to return to his profession.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Board Funeral, Cemetery and Consumer Services enter a final order granting Petitioner's application for licensure as a funeral director and embalmer. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2019.
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
Findings Of Fact Respondent is a licensed funeral director and embalmer, having been issued license numbers FE 1453, EM 1453 and FD 1281. He is currently under a five year license probation imposed by Petitioner in a December, 1982 Final Order. A condition of this probation is that Respondent not violate any provision of Chapter 455 or 470, Florida Statutes. In early 1981, Respondent contracted with the family of Jefferson Munnerlyn, deceased, for funeral arrangements. Respondent's charge for these services totaled $1,895. Decedent's brother and sister-in-law made a down payment of $200. The family agreed to pay another $990 in the belief that the Veterans Administration (VA) would pay the remaining balance. The $990 family payment was to be paid in equal shares by Decedent's brother and two sons. Decedent's brother paid his $330 share. When Decedent's sons failed to pay, Respondent sought and obtained an additional $660 from Decedent's brother, with the understanding that he would return any portion eventually paid by the sons. On April 16, 1931, Respondent received a payment of $450 from the VA, and on November 15, 1981, Respondent received a second VA payment of $650 for the funeral of Jefferson Munnerlyn. Additionally, in 1981, each of the Decedent's sons paid their $330 share of the funeral costs. By the end of 1981, Respondent had received overpayments of some $1,058 from all sources. In 1982, the VA discovered that family members had paid a total of $1,853 toward the Jefferson Munnerlyn funeral, and thereupon demanded that Respondent return $1,058 to that agency. In the meantime, however, Decedent's brother demanded that the $660 payment which had also been paid by Decedent's sons be returned to him. The VA and Decedent's brother continued to seek these amounts throughout 1982, 1983 and the first nine months of 1984. Respondent, faced with conflicting claims to the overpayments, did nothing until the day of the hearing. On October 3, 1984, he returned $660 by cashier's check to Decedent's brother, who was present in the hearing room. Respondent also indicated that he was then returning the remaining $398 in overpayments to the VA. Petitioner presented expert testimony on standards of conduct prevailing in the funeral directing profession. This testimony, set forth in Petitioner's Exhibit A, was taken by deposition. This evidence established that a funeral director is under a professional obligation to return any overpayments to the "appropriate party," and that failure to do so constitutes misconduct. However, the hypothetical questions posed to the expert witness did not assume the existence of conflicting claims to such overpayments.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's funeral directing and embalming licenses for a period of thirty days. DONE and ENTERED this 7th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER, 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 November, 1984. COPIES FURNISHED: Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George Pinkney Post Office Box 503 Hawthorne, Florida 32640 R. C. Blanton, Jr., Director Board of Funeral Directors and Embalmers 111 East Coastline Drive Room 407 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether the licenses issued to Jimmie F. Prevatt, George W. Ammen, Richard Miller and the Brevard Funeral Home North and the Brevard Funeral Home South should be revoked or suspended for violation of Chapter 470, Florida Statutes, particularly Sections 470.12(1)(k), 470.12(1)(h), 470.12(2)(d), 470.12(2)(i), 470.12(2)(p) and 470.12(4)(a) and Rule 21J-7.10 of the Rules of the State Board of Funeral Directors and Embalmers, Florida Administrative Code.
Findings Of Fact By Administrative Complaint, Respondents, Jimmie F. Prevatt and George W. Ammen, were charged by the State Board of Funeral Directors and Embalmers with violations of subsections 470.12(1)(h), 470.12(1)(k), 470.12(2)(d), 470.12(2)(i), and 470.12(2)(p), Florida Statutes, and Rule 21J-7.10 of the Rules of State Board of Funeral Directors and Embalmers in that as licensed embalmers and licensed funeral directors, they paid or caused to be paid valuable consideration in the form of the use of the name and services of the licensed funeral establishments of which they were the licensed funeral directors in charge for use by Florida Memorial Gardens, a cemetery, in order to secure business from or through said cemetery, its affiliate organizations, its agents, and its employees, for the benefit of themselves and their respective funeral establishments; in that as licensed funeral directors in charge of licensed funeral establishments, they employed, retained or otherwise engaged Florida Memorial Gardens and its employees and agents to solicit business for their respective funeral establishments; in that they, as licensed funeral directors in charge of licensed funeral establishments, offered an inducement to Florida Memorial Gardens and its employees and agents as solicitors, agents, or canvassers for the purpose of securing or attempting to secure business for their respective funeral establishments by engaging in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice; and in that they violated the provisions of Chapter 470, Florida Statutes. By Administrative Complaint, Respondent Richard K. Miller, was charged by the State Board of Funeral Directors and Embalmers with a violation of Rule 21J-7.10, Rules of State Board of Funeral Directors and Embalmers, enacted pursuant to subsection 470.04(2), Florida Statutes, in that as a licensed embalmer and licensed funeral director he engaged in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice. By Administrative Complaint, Respondents, Brevard Funeral Home North and Brevard Funeral Home South, were charged by the State Board of Funeral Directors and Embalmers with violations of subsection 470.12(4)(a), Florida Statutes, in that Jimmie F. Prevatt and George W. Ammen, respectively, as funeral directors in charge, and Robert G. Weld, as owner of said funeral homes, have been guilty of acts provided as grounds for revocation of an embalmer's license as provided in Section 470.12, Florida Statutes. The Petitioner, State Board of Funeral Directors and Embalmers, seek to revoke the licenses of Respondents and impose on them the cost of these proceedings. The Complaint was dated June 9, 1976, and a copy was furnished to the Respondents herein. At the time of the filing of the Complaint, Robert G. Weld was the owner of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the filing of the Complaint Mr. Weld sold the Brevard Funeral Home North to Respondent, Jimmie F. Prevatt and to Mr. Alan P. Meindertsma. Brevard Funeral Home South was sold by Mr. Weld to Respondent, George W. Ammen, Jr. The sales were effective September 20, 1976. The sale consisted of the furnishings, equipment and funeral service business but not the land, building and fixtures of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the sale, the State Board of Funeral Directors and Embalmers upon application reissued the funeral establishment licenses to Brevard Funeral Home North and Brevard Funeral Home South to reflect the new owners, with the same license number tags existing at the time of the ownership by Mr. Weld, reflecting that Mr. Prevatt and Mr. Ammen were the same funeral directors in charge. There was no new licensing inspection. A motion to dismiss was filed on behalf of Brevard Funeral Home North and Brevard Funeral Home South. The movants contended that the change of ownership from Mr. Weld to the new owners rendered the Complaint moot as against those establishments. The motion was denied for the reason that the parties are the same, there had been adequate notice, and the parties had an opportunity to be heard at the administrative hearing. The, Petitioner Board and this Hearing Officer has jurisdiction of the parties and subject matter. A motion to dismiss was filed for failure of the State Board of Funeral Directors to comply with Section 120.60(4), Florida Statutes, in that the agency had not given the licensees an opportunity to show that they had complied with all lawful requirements for retention of their licenses but were obligated to come immediately to a formal hearing. The motion was denied. A motion to dismiss was filed stating that the Petitioners contend the act complained of a violation of Section 470.12, Florida Statutes. Respondents contended this is a violation of the rights of Respondents under the Florida Constitution. Motion was denied. The Hearing Officer has jurisdiction. Prior to September 20, 1976, at which time Respondents Prevatt and Ammen purchased an ownership interest in Brevard Funeral Home North and Brevard Funeral Home South, Robert G. Weld, owner of said funeral homes, entered into an agreement with Gene Crowe, owner of Florida Memorial Gardens also known as Florida Memorial Cemetery. The agreement authorized the use of the names of the two funeral homes and authorized sales presentations to be made by salesmen employed by Mr. Crowe and his business organization to the general public to sell a product known as the "Eternal Rest Vault." Mr. Weld agreed to execute funeral service certificates for issuance by Mr. Crowe's organizations to purchasers of the Eternal Rest Vault in which Brevard Funeral Home North and Brevard Funeral Home South guaranteed to perform services constituting a complete funeral to be performed by one of said funeral homes at the time of need for a fixed price to be paid at the time of need. During the first half of 1976 Mr. Crowe's salesmen did in fact use the names and reputations of Brevard Funeral Home North and Brevard Funeral Home South in their sales presentations to the general public and their direct sales campaign. Mr. Weld executed funeral service certificates which were delivered to Mr. Crowe's customers by Mr. Crowe's business organizations. Mr. Weld and Brevard Funeral Home North and Brevard Funeral Home South performed funeral services pursuant to said funeral service certificates. Respondents Jimmie F. Prevatt and George W. Ammen are two of the current owners and are licensed funeral directors in charge of Brevard Funeral Home North and Brevard Funeral Home South. They did not negotiate the aforesaid agreement between Mr. Weld and Mr. Crowe but they had full knowledge of the agreement including the name of the respective funeral homes in the sales presentation of Mr. Crowe's salesmen and the use of the names of the funeral homes on the funeral service certificates. Respondents Prevatt and Ammen performed the duties of funeral directors pursuant to the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller is employed as a funeral director of the Brevard Funeral Home South and was a consultant by Mr. Crowe to his business organizations prior to the filing of the Complaint by the Petitioner. Mr. Miller consulted with Mr. Crowe and Mr. Weld regarding the sales presentation used by Mr. Crowe's salesmen in the marketing of the Eternal Rest Vault. He reviewed the form of the funeral certificates that were to be issued pursuant to said sales and at least once accompanied the salesmen during a sales presentation to a customer. Prior to the institution of the Complaint, Mr. Gene Crowe had acquired a distributorship for a product known as "Eternal Rest Vault." The sales concept used in marketing the Eternal Rest Vault is based upon the representation that the total cost of an entire funeral can be reduced by using the Eternal Rest Vault to serve as both the casket and a burial vault. Sale of the vault is directly to the public based on a preneed sale. Telephone solicitation and sales calls are made in the homes of prospective customers by Mr. Crowe's team of salesmen. The Eternal Rest Vault is intended to serve as both a casket and a vault and requires special arrangements in connection with the funeral services involved. The base of the Eternal Rest Vault incorporates a slumber bed upon which the dead human body lies. The sides and top of the vault are not used during the funeral services itself. A catafalque, a bottomless casket, is set on the base of the vault around the slumber bed and during the funeral service the body is lying in the catafalque on the slumber bed. After the funeral service is over, the catafalque is removed and the sides and top of the vault are then placed upon the base of the base of the vault and sealed. The vault is then buried in the grave. This system requires special equipment and services to be performed by the funeral home performing the funeral services. In order to be sure of a funeral home willing to perform the special services required of the Eternal Rest Vault and in order to assure potential customers of a fixed price at the time of need of a funeral service involving Eternal Rest Vault, the total funeral concept is an important integral part of the overall marketing package included in the sale of the product and the agreement between Mr. Crowe and Mr. Weld. The terms of the agreement entered into between Mr. Crowe and Mr. Weld included an arrangement whereby Mr. Crowe's salesmen would be authorized to include in their sales presentation, an assurance to their potential customers of the Eternal Rest Vault that Brevard Funeral Home North and Brevard Funeral Home South would provide funeral services involving use of the Eternal Rest Vault. The sales presentation described in the sales kit used by Mr. Crowe's salesmen during the first part of 1976 includes the language that was used by the salesmen who describe Brevard Funeral Home North and Brevard Funeral Home South as the finest funeral homes in the community with very fine reputations. The presentation included a copy of a funeral service certificate naming Brevard Funeral Home North and Brevard Funeral Home South as funeral homes in the community that were guaranteed to service the Eternal Rest Vault, a funeral service certificate was executed by Mr. Weld and mailed by Mr. Crowe's staff to the purchaser. The funeral service certificate stated a fixed price for which Brevard Funeral Home North and Brevard Funeral Home South would at the time of need provide a funeral service to the named certificate holder. The results of the arrangement included in the agreement between Mr. Weld and Mr. Crowe have been the sale of some twenty-six hundred (2,600) Eternal Rest Vaults in Brevard County and several funeral services provided by Brevard Funeral Home North and Brevard Funeral Home South pursuant to previously issued funeral service certificates for services for purchasers of the Eternal Rest Vaults. Respondents Jimmie F. Prevatt and George W. Ammen, the funeral directors in the home then owned by Mr. Weld, were told that they would be participating in the marketing arrangements included in said agreement. Mr. Prevatt and Mr. Ammen as funeral directors performed services consistent with the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller was employed during the first half of 1976 by Mr. Crowe, Florida Memorial Gardens, and Mr. Weld, Brevard Funeral Home South. He performed full time duties as a funeral director for Brevard Funeral Home South and at the same time was a paid consultant, with Florida Memorial Gardens. He participated in the business organization of Mr. Crowe as a consultant and at least on one occasion accompanied one of Mr. Crowe's salesmen on a sales call and observed the entire sales presentation made to a potential Eternal Rest Vault customer. The names Brevard Funeral Home North and Brevard Funeral Home South, Respondent's establishments, were used on the certificates issued to various individuals as a result of the marketing of the Eternal Rest Vault. The Hearing Officer further finds: The agreement to allow the use of the names Brevard Funeral Home North and Brevard Funeral Home South is a valuable consideration and the use of the names was meant to secure business for the funeral homes and for the Florida Memorial Gardens, a cemetery, in the promotion of sales of the new type of vault. The valuable consideration is apparent because the new type of vault requires a funeral home and the funeral directors prepared to render special service not necessary with the traditional type of funeral arrangements. To service the product, the participating funeral home must also have a catafalque in which the vault fits. It is a valuable consideration to agree to perform a service in a particular manner with a specified product. The agreement between the then owner of the funeral homes, Mr. Weld, and Florida Memorial Gardens was strictly a business transaction and his object was to solicit more business for his funeral homes. The advice to the holder of the certificate that the two Respondent funeral homes would service the product they bought leads them directly to those funeral homes to perform the service for which they will pay at the prearranged price. The Respondents Prevatt and Ammen were fully advised of the agreement which involved the funeral homes in which they were the licensed funeral directors. Both Respondents benefited monetarily by the business thus secured and as new owners benefit from these business efforts and solicitations of the former owner, Mr. Weld. The continuation of the servicing of the product provided for in the certificates is a continuation of the solicitation effort started by Mr. Weld at the time of the original agreement. The printed certificate is entitled "Funeral Service Warrant" and states "The basis or legal representatives of the holder of the warrant shall be entitled to receive a unit of service from their choice of Brevard Funeral Home South, Brevard Funeral Home North or Florida Memorial Mortuary for:" and the name of the customers is then inserted after the sale is made. The ultimate emoluments of the sale go both to the Florida Memorial Mortuary and later, at the tire of death, to the participating funeral homes. Certificates are not presently being issued. On at least two contracts, after the Respondent funeral homes had been sold to Respondent Prevatt and Respondent Ammen, to wit December 2, 1976, the customers were advised by letter from the President of Florida Memorial Gardens, Gene Crowe: "If you will take your Funeral Service Certificate to Brevard Funeral Home North, 1450 Norwood Avenue, Titusville, I am sure they will fully explain all services and make arrangements to accept whatever monies you may wish to pay against the final funeral costs of which your certificate calls for. If there is any further questions after you have contacted Brevard Funeral Home North, please do not hesitate to call us." It is self evident that the purpose of the Funeral Service Warrant or certificate was to solicit business for the Respondent funeral homes as well as Florida Memorial Gardens. Respondent Miller was fully advised of the agreement executed by Mr. Weld and Florida Memorial Gardens and as an employee of Florida Memorial Gardens consulted with and advised those engaged in selling the said vault to be serviced by the funeral home, Brevard Funeral Home South, in which he was also employed as a funeral director. His activities were attempts to secure business.
Recommendation Suspend the license of Brevard Funeral Home North and Brevard Funeral Home South and Respondents Prevatt, Ammen and Miller for a period not to exceed thirty (30) days and levy a fine on each of the Respondent licensees not to exceed Five Hundred Dollars ($500.00) each. DONE and ORDERED this 21st day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jarold W. Regier, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202 Philip F. Nohrr, Esquire J. Wesley Howze, Jr., Esquire Nohrr & Nohrr Post Office Box 369 Melbourne, Florida 32901 Joe T. Caruso, Esquire Wolfe, Kirschenbaum & Caruso Post Office Box 1271 Merritt Island, Florida W. Ford Duane, Esquire Robertson, Williams, Duane & Lewis 538 East Washington Street Orlando, Florida 32801
