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
Conclusions THIS CAUSE came on for consideration of and final action by the Board of Funeral, Cemetery, and Consumer Services on Petitioner’s Notice of Voluntary Dismissal submitted in this cause on July 18, 2009, attached hereto as Exhibit A. . On April 30, 2009, a Notice of Intent to Deny Licensure was served upon Nacional Memorial! Funeral Chapel, LLC. Pursuant to Section 120.57(1), Florida Statutes, Petitioner requested a formal hearing and the case was referred to the Division of Administrative Hearings on June 8, 2009. After conducting several depositions the Petitioner withdrew its Petition for formal hearing from the Division of Administrative Hearings and an Order Closing the File was issued on July 20, 2009, by Administrative Law Judge, John G. Van Laningham. Accordingly, IT IS HEREBY ORDERED that the application is DENIED. DONE and ORDERED this 2% day of VEZ , 2009, . DOUGLAS’SHROPSHIRE, Executive Director Florida Board of Funeral, Cemetery and Consumer Services Filed July 15, 2010 12:17 PM Division of Administrative Hearings.
Findings Of Fact Upon the evidence presented, the following findings of fact are made: Respondent Poitier is a licensed funeral director and embalmer, having been issued license numbers FE 1641, FD 1456 and EM 1641. Respondent Poitier Funeral Home is a licensed funeral establishment, having been issued license number FH 803. On the twenty-fifth (25th) day of August, 1982, at approximately 5:00 a.m., Amos Williams, a transient, suffered a heart attack at the Miami Rescue Mission, 716 North Miami Avenue, Miami, Florida. He was transported by the Miami Fire and Rescue squad to Jackson Memorial Hospital where he was pronounced dead at 6:24 a.m. and transferred to the Medical Examiner's office at 7:00 am. on said date. Cora Holland, the sister of Amos Williams, was informed of the death of her brother on Friday, August 27, 1982, at 7:30 p.m., when she received a call from Reverend Sawyer. Reverend Sawyer asked if she would be coming to Florida, and she told him she would be there late Saturday or early Sunday. Minutes later she received a call from the Medical Examiner's office of Dade County, who informed her of her brother's death again, stating that they had held the body for almost 72 hours, and the law said they could not hold the body longer than 72 hours. She said she would be in Florida soon, and they responded that they could hold the body a little longer. On August 28, Saturday, at 9:10 am., Reverend Sawyer called the Medical Examiner's office and stated that Mrs. Holland was coming to Miami on August 29 to make arrangements with the Poitier Funeral Home. Sawyer was advised that if he was acting as her agent the office would accept his signature for the release of the remains since the morgue was overcrowded. Thereafter, on that same day, Reverend Sawyer called Poitier Funeral Home and told the Respondent that he had communicated with the sister of the deceased. Reverend Sawyer told him that the sister had given him authorization to handle the remains until her arrival in Miami. The Respondent stated that when the sister arrived there if she wanted to use any other funeral establishment the body would be released to such establishment. Further, that if there was a problem financially, that Poitier agreed to furnish free the casket, flowers, clothing, hearse and a family car for the sister if she came, but the grave would have to be paid for by others. Subsequently, Reverend Sawyer executed and delivered a "Release of Remains" which authorized the release of the body to Poitier Funeral Home and granted permission to embalm and make all necessary preparations for the funeral. This release was furnished to the Medical Examiner and the body was released to the said funeral home. Upon examining the remains at the funeral home, the Respondent found putrefaction had set in. By reason of said condition, embalming was required and necessary to preserve the body for public health reasons. Ms. Holland arrived in Miami at 4:30 p.m. on August 29, Sunday, and prior to her arrival in Miami had never heard of the Respondent Poitier or the funeral establishment. A friend recommended her to Bain Funeral Home and that evening (7:00 or 8:00 p.m.) they arrived at the Bain Funeral Home where the attendant telephoned the funeral director, Barbara Caldwell, who informed Ms. Holland to return to the funeral home on Monday morning. Up through and including Sunday, August 29, 1982, she had given no one authorization to obtain the body, had given no authorization to embalm the body, and no funeral arrangements had been made. Ms. Holland arrived at the Bain Funeral Home on August 30, Monday, in the morning and discussed with Ms. Caldwell the arranging for release of the body from the medical examiner, which is when Ms. Holland remembers she learned that the body had been released to Poitier Funeral Home, a release she had not authorized. Later that same day, Respondent Poitier telephoned her in a three- way conversation with Barbara Caldwell also on the line. In that conversation, Respondent stated that if she would rather have Bain's Funeral Home handle the body, to come get the body. The Respondent also said he wanted Ms. Holland to pay him $175.00 for embalming the body, to which she responded that she had not authorized him to embalm the body. Respondent then stated to Ms. Holland that if he released the body to Bain's Funeral Home he wanted her to sign a waiver releasing Poitier, the medical examiner and Reverend Sawyer from any liabilities thereafter. At the conclusion of the conversation, Respondent Poitier demanded that she would have to sign this waiver or she would have to pay him $175.00 for embalming the body in order for him to release the body. Ms. Holland consulted Peter Kneski for legal assistance on August 31, 1984, her problem being that she wanted the body of her relative who had recently passed away to be released to Bain Funeral Home, which body was then located at Poitier Funeral Home. The complicating factor was that there was a demand by Respondent Poitier that Cora Holland pay certain monies to Respondent in order to secure release of the body. Upon Mr. Kneski's calling by telephone the Respondent Funeral Home, he confirmed that the body had been embalmed, and secondly, that Respondent Poitier was insistent that money be paid for reimbursement of expenses in order to have the body released from that funeral home. Mr. Kneski, in his second telephone conversation with Respondent on August 31, 1982, informed the Respondent Poitier of the fact that he was retained as the attorney for Cora Holland concerning the body of Amos Williams, and in his capacity as attorney for Ms. Holland made a request of Respondents to release the body to Bain Funeral Home. Mr. Kneski did not remember if, as a result of this second conversation, the body was released, but the final result was that the body was ultimately released. However, he also testified to recalling that Respondent Poitier told him the body had to be picked up by a specific time and after that time the body would not be released. Barbara Caldwell, Funeral Director of Bain Funeral Home, first met Cora Holland through a telephone conversation on Sunday, August 29, when Ms. Holland requested that Bain Funeral Home handle the funeral arrangements for her brother. Ms. Caldwell's memory is that she then called the Medical Examiner's office and learned that the body had been previously released to Poitier Funeral Home. Ms. Holland told her that such authorization for release had not been given by herself. On Tuesday, August 31, 1982, Ms. Caldwell talked with Respondent Poitier by telephone after Ms. Holland had returned from her visit with the attorney. Respondent Poitier still maintained his posture of not releasing the body without the payment of $175.00 and the release of liability. On that Tuesday evening another telephone coversation occurred between Caldwell and Poitier, the conversation occurring after Ms. Holland stated she had been advised by the attorney not to sign anything but a release of remains, and the conversation relating to this advice. Poitier's response was the same as in the past, i.e., that he wanted a release of liability, release of remains and $175.00. The final conversation occurred on Wednesday, September 1, in the evening when Poitier told them that she should come get the body. The body was then picked up. The contract between Holland and Bain Funeral Home was entered into on September 1, 1981, for funeral arrangements. Holland and Bain did not attempt to physically obtain the body until September 1 due to the fact that prior to that time the Respondent had not been furnished with a satisfactory release. Providence Padrick, Investigator for Petitioner, testified to statements made to her by Respondent Poitier during the course of the investigation. Poitier related to her that he was contacted by Reverend Sawyer, who reported himself to be a friend of the family of Ms. Holland, with Reverend Sawyer affirming he represented Ms. Holland, and that the relationship between Sawyer and the deceased was one of friendship. The authorization for release was signed by Reverend Sawyer, and Poitier said he had gone to Reverend Sawyer's home and asked him to sign the release and then Poitier proceeded to have one of the staff members obtain the body from the Medical Examiner's office. This was all accomplished by August 28, 1982. When he was asked if he had requested any type of payment for services, when the family demanded the release, he denied the $175.00 request, but he did state that he contacted Barbara Caldwell of Bain Funeral Home and told her he would release the deceased if Ms. Holland would sign authorization as next of kin and if she would sign an affidavit releasing his funeral home of any responsibility -- two separate documents. He also admitted that the funeral home had embalmed the deceased and, when questioned as to why this information had not been included in the monthly affidavit of cases embalmed, he said he could not recall who did the embalming. The deposition testimony of the Board of Funeral Directors and Embalmers Executive Director, R. C. Blanton, established that the affidavits of cases embalmed and bodies handled for the months of August and September, 1982, for the Respondent Funeral Home did not list the case of Amos Williams. It was not until March, 1983, that the affidavit filed with the Board of Funeral Directors and Embalmers listed the fact that Amos Williams had, indeed, been embalmed at that funeral home (Petitioner'S Exhibit 8). The testimony of Steve Granowitz, former inspector for the Department of Professional Regulation, established that an inspection was conducted of the Respondent Funeral Home on March 18, 1983. It was learned through that inspection that Respondents failed to conspicuously display the prices where caskets were displayed and no itemized retail price list was available to the public for its use as set forth in Section 470.035, Florida Statutes. Indeed, Respondent Poitier stated to the inspector that he did not know of the price list regulation and would get a price list made in the next 5-6 weeks. When Granowitz returned in August, 1983, he found that the caskets were in the casket room with prices posted as required.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondent guilty of violating Sections 470.036(1)(t), 470.36(1)(e), Florida Statutes, and Rule 21J-2l.03, Florida Administrative Code, and Section 470.036(1)(h), Florida Statutes, not guilty of the remaining charges, and imposing a $1,000 administrative fine. DONE and ENTERED this 18th day of July, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 18th day of July, 1984. COPIES FURNISHED: Joseph W. Lawrence, Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gus Efthimiou, Jr., Esquire 1025 Dupont Building Miami, Florida 33131 Edward O'Dowd, Executive Director Board of Funeral Directors and Embalmers 111 East Coastline Drive Room 507 Jacksonville, Florida 32202 =================================================================
The Issue The three administrative complaints in these consolidated cases allege various violation of Chapter 470, Florida Statutes and Chapter 61G8-21, Florida Administrative Code, which regulate funeral directors and the operation of funeral establishments. Specifically, these violations are alleged: Section 470.024(2), Florida Statutes: operating a funeral establishment without a license; Sections 470.024(6), 470.036(1)(h), Florida Statutes and rule 61G8-21.00F(1), Florida Administrative Code: not being available to the public during normal business hours; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(3), Florida Administrative Code: not having the funeral director’s photograph with the license; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(1)(b), Florida Administrative Code: not having the latest inspection reports available for inspections upon demand; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.005(1)(c), Florida Administrative Code: not having a current copy of inspection rules or criteria available for inspection upon demand; Section 470.035(1), Florida Statutes: not having retail price list available upon inquiry; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(6), Florida Administrative Code: not having the name of the establishment and name of the funeral director displayed at the public entrance; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(1)(b), Florida Administrative Code: not having sanitary floors; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.003(5), Florida Administrative Code: not having prices conspicuously marked on the caskets; Section 470.036(1)(a) and 470.031(l)(f), Florida Statutes: employing an unlicensed person in the practice of funeral directing, embalming or direct disposition; Section 470.036(1)(n), Florida Statutes: aiding and abetting an unlicensed person in any licensed activity; and Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.007(3), Florida Administrative Code: failing to insure that all employees comply with laws and rules of the Board. The issues in this proceeding are whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent James B. Kerney, Jr. has been a licensed funeral director in the state of Florida for approximately 28 years, having been issued license number FE 0001557. He has been director in charge of Kerney Funeral Home in Sebring, Florida for approximately 27 years. The business is owned by him and his wife, Nancy Kerney, and is a licensed funeral home, having been issued license number FH 000182. Mr. Kerney is confined to a wheelchair as the result of an automobile accident on December 6, 1993, in which his right leg and his neck were broken. His left leg had been amputated in 1986. Mr. Kerney also requires kidney dialysis, and on Tuesdays, Thursdays and Saturdays he is transported to a renal center where he spends three hours and fifteen minutes in each session. Nancy Kerney describes her husband as “...medically- termed incomplete quadriplegic, which means that he can use his hands to some extent, but he needs assistance with everyday tasks of using his hands.” (transcript, p. 118) Mrs. Kerney is his sole caregiver; she must bathe and dress him with the assistance of an automated lift. She also has a power of attorney which permits her to sign documents on her husband’s behalf. From January 1989 until August 1995, Frank Paolella was employed as an inspector for the Department of Business and Professional Regulation, conducting inspections of various facilities regulated by that agency, including funeral homes. On February 28, 1995, after calling for an appointment the previous day, Mr. Paolella visited Kerney Funeral Home for a routine inspection. Mrs. Kerney met the inspector at the funeral home and opened the office for him. Mr. Kerney was not present. During the course of the inspection, Mr. Paolella observed that the establishment license had expired on November 30, 1994 and had not been renewed. He also observed other violations which he noted on his inspection form: there was no photograph of the funeral director displayed on the director’s license; there were numerous dead roaches on the floor; and the names of the establishment and funeral director were not displayed at the public entrance (noted as a second-time violation). In addition, when the inspector requested certain documents, neither he nor Mrs. Kerney could find them in the office. These missing documents included a copy of inspection rules or criteria, copies of signed need and pre-need contracts, copies of final bills or written agreements, and an itemized price list of merchandise and services with the establishment’s name, address and telephone number. After the inspection, both Mr. Paolella and Mrs. Kerney signed the inspection form. Mr. Paolella returned for a follow up inspection on March 21, 1995. This time he arranged to meet Mr. Kerney at the Kerney home, a couple of blocks from the funeral home. They met at 9:00 a.m. and made arrangements to meet again at the funeral home in the afternoon after Mr. Kerney finished his dialysis. That same afternoon, Mr. Kerney arrived at the funeral home in a handicapped-equipped van driven by his wife. Mr. Kerney was unable to reach the fuse box to turn on the lights, and only with some difficulty, Mrs. Kerney was able to get the lights turned on with instructions from her husband. On this visit, Mr. Paolella again observed many violations. There were still numerous dead roaches on the floor and sheets of plaster that had fallen from the ceiling to the floor. There was no price displayed on the least expensive casket; customers’ written and signed agreements were not available; the latest inspection forms and the copy of inspection rules or criteria were not available; the funeral director’s and establishment licenses were not properly displayed and the director’s and establishment’s names were not displayed at the public entrance. In addition, the funeral home license had still not been renewed. On this, as well as the prior inspection in February, Mr. Paolella noted his concern about whether, as director in charge, Mr. Kerney was reasonably available to the public during normal business hours. On or about April 5, 1995, Mr. Kerney was admitted to Highlands Regional Medical Center and was still in the hospital a month later, on May 2, 1995. (Answer to Administrative Complaint in cases no. 94-07325 and 95-07329.) On April 28, 1995, Mr. Paolella returned to Kerney’s Funeral Home, accompanied by his supervisor, James Potter. The agency had received a complaint that Kerney’s was conducting unlicensed activity. The pair approached the front door of the establishment and found it ajar, with lights on inside. They knocked and shouted out their presence, but there was no answer; they entered and proceeded to the back rooms, thinking that the inhabitant must be in the back, out of hearing range. The last room in the back is the preparation room. There they found a body laid out on the table, but no living person was present. Concerned that there may have been a problem, the inspectors went to the Sebring police station and returned to the Kerney Funeral Home with two policemen, a sergeant and a photographer. There was still no living person on the premises and the photographer took a series of photographs. The photographs accurately reflect what Mr. Paolella observed on the April 28th inspection: many dead roaches on the floor, fallen plaster from the ceiling, opened bottles and jugs of unidentified liquids, a dirty sink, tools and instruments laid out on a dirty linen, hairbrushes and combs with hairs still embedded, and the body laid out, covered except for the head. A photograph of the exterior of the building shows a permanent sign in the lawn, separate from, but in front of the building, with the name “Kerney Funeral Home”. The inspectors called the Kerney residence and Mrs. Kerney came to the funeral home. She opened the office and responded to questions. She said the Mr. Kerney was in the hospital and their son, James Kerney, III, had picked up the body and had embalmed it. The inspectors called another funeral home and arrangements were made to have the body picked up and a service and burial conducted. Mr. Kerney concedes that the funeral home license was allowed to lapse and he sent the check to renew it after the inspection by Mr. Paolella. From the end of November 1994 until the handling of Mr. Johnson (the corpse found by the inspectors) in April 1995, the home did not handle any bodies, according to Mr. Kerney. He submitted monthly affidavits to the agency reflecting this non-activity, but there is no monthly affidavit on file for the month of December 1994. By April, the license was apparently renewed. Mr. Kerney also concedes that there are long periods of time during which he is not able to be at the funeral home. The business phone rings at his residence and he arranges to meet clients at the facility. He sold Mrs. Johnson the casket for her husband by dealing with her by telephone from the hospital. He denies that he told his son to embalm Mr. Johnson, but Mr. Kerney could not explain how the body did get embalmed or why it was at his establishment unattended. Mr. Kerney signed the Johnson death certificate as the funeral service licensee. Mr. Kerney insists that he is able to embalm bodies from his wheelchair. He mixes the fluid and makes the incisions or he directs someone in his presence to perform these tasks. According to Mr. Kerney, he deliberately left roaches on the floors because after he set off aerosol sprays he let the poison keep working before cleaning up the bugs. He attributed the fallen ceiling to a water leak caused by the upstairs tenant. He also claimed that the other violations found by the inspectors were just temporary lapses and that all of the problems were quickly corrected. It is evident that serious violations occurred and that Mr. Kerney has to rely on his family, his son and his wife, to perform functions for which he is responsible. Neither Mrs. Kerney nor James Kerney, III are licensed funeral directors. Mr. Kerney is unable to spend the time at his facility to keep it in compliance with licensing regulations and criteria even if he is able to personally supervise or conduct the embalming of the occasional body handled by the funeral home.
