Findings Of Fact Robert L. Brown is licensed as a funeral director and embalmer and Brown's Paradise Memorial, Chapel is licensed as a funeral establishment, and both were so licensed at all times here relevant. Vincent Foster was involved in an industrial accident at approximately 4:30 p.m. on Friday, August 13, 1982, while working on a building which collapsed. He was taken to Central Florida Regional Hospital, Sanford, Florida, where he was pronounced dead shortly after 6:00 p.m. The deceased was survived by his common-law wife of ten years, three children, mother and father, and several brothers and sisters. Vincent's brother, James Foster, resides in Sanford, Florida, as do his parents. James learned of the accident around 5:30 p.m., went to the construction site where he found the body had been taken to the hospital. He proceeded to the hospital, where his mother, Armetta Foster, had already arrived, and learned his brother was dead. He discussed funeral arrangements with his mother and they agreed they preferred Wilson-Eichelberger Funeral Home. That evening James called Eunice Wilson and left the message for her to call back. The following morning James went to his mother's house while awaiting the arrival of Vincent's common-law wife, Lelia May Dellafield. James and his mother agreed Lelia should make the decision about which funeral home to use. Lelia was the beneficiary of Vincent's insurance policy and was expected to pay for the funeral. Lelia tended towards Respondent's services and wanted to talk to Respondent about providing services. James then contacted Brown's assistant, Howard LaFair, and told him Lelia wanted to talk to Brown about picking up the body and conducting funeral services. James then went to the hospital where he was told an autopsy was in progress and it would be at least two hours before the body could be picked up. Leaving the hospital, he encountered LaFair in Brown's hearse and told him pickup of the body was delayed at least two hours due to the autopsy. The hospital subsequently released the body to Respondent without obtaining a release to do so from Vincent's surviving relatives. Saturday afternoon Brown came over to Lelia's apartment where James, his wife, and his mother were waiting. Upon his arrival Brown led them in prayer, following which he inquired who would be paying for the funeral services, and a general discussion followed. No specific terms were agreed upon. During this discussion Respondent told Lelia she should call him when the insurance agent arrived. Before leaving Brown advised them he would pick them up Monday to visit the casket house in Orlando to pick out a casket. Monday morning the insurance agent, who had recently sold Vincent a $5,000 life insurance policy with triple benefits for accidental death, came to Lelia's apartment and she called Brown, who came over. Brown asked questions about the policy and wanted the insurance agent to hand the policy to him. The latter refused to do so, saying the only one who could give him the policy was Lelia. When James Foster, who had left before the agent arrived, returned around 10:00 a.m., the agent had departed but Brown was still there and had possession of the policy. That afternoon Brown and his secretary took James, Lelia, and her brother to the Orange County Casket Company. Lelia was too upset to stay in the room with the caskets and remained outside while the other three looked at caskets. James testified that Brown selected the wood-grained casket stating he "wanted my boy [Vincent] to go out in style." Respondent testified that James picked out the casket and they told Lelia which one was selected and she agreed. They then returned to Sanford to Respondent funeral home where arrangements for the funeral were discussed. No contract was signed at this time. Exhibit 1, which is a contract for funeral services, preparation of body, supplies, etc., indicates it was approved by Lela[sic] Dellafield, However, Lelia testified that was not her signature. The signature on Exhibit 5, a subsequent contract with Wilson-Eichelberger funeral home was identified by Lelia as her signature. On Exhibit 5 the signature is "Lelia Dellafield." On Exhibit 1 the signature is "Lela Dellafield." Exhibit 1 first appeared when James, Lelia, and her brother returned to the funeral home from the casket house. The contract was first seen by James when he returned to the room after briefly leaving to go to the bathroom. Lelia was upset because Brown had not returned her insurance policy. When they returned to Lelia's apartment from the funeral home, Lelia told James that Brown still had her insurance policy and she wanted it back. Later that evening she told James she did not want Brown to handle the services. He advised her to so advise Brown on Tuesday. On Tuesday Brown received the word that Lelia wanted another funeral home to handle the funeral. His assistant, LaFair, telephoned Lelia to berate her for not using Brown. Respondent was out of town Wednesday when James went to the funeral home to get Lelia's insurance policy. However, Brown's secretary got Brown on the phone and James talked to him. He told Brown he wanted the policy back and he did not intend to allow Brown to take anything away from his brother's kids. Wilson-Eichelberger funeral establishment sent a car to Respondent's funeral home Wednesday to pick up Vincent's body, but LaFair would not let them have the body. He told them the funeral home was locked, Brown was out of town, and he, LaFair, would not release the body. By Wednesday evening Vincent's brothers and sisters had arrived, were told the events that had transpired, and all proceeded to the funeral home to find out why the body had not been released. Upon their arrival Brown was out of town and LaFair said he did not have a key to get in the funeral home. On Thursday the Fosters proceeded to the State Attorney's Office to instigate charges against Brown for refusing to release Vincent's body. Also on Thursday morning, Brown had returned to Sanford and telephoned Susan Foster, a Department of Professional Regulation Complaint Analyst, in Tallahassee, to inquire about his right to hold a body until he had received payment far his services. He was told by Ms. Foster that he was entitled to fees for services he had performed if such services had been authorized in writing but that he had no right to hold the body. Later that afternoon James Foster called Susan Foster requesting Petitioner's assistance in getting his brother's body released. After leaving the State Attorney's Office, the Fosters, accompanied by a TV news cameraman, proceeded to Respondent's establishment. Brown was present, as was James Golden, Brown's lawyer, who Brown testified he did not hire and did not know why he was at the funeral home on Thursday. Upon the arrival of the Fosters, Golden came out and told them Brown would only talk to Lelia Dellafield. However, the family was allowed in. During this time Lelia's policy was returned. Brown told them he wanted $3,400 for services he had performed before he would release the body. After some heated discussion Brown got up and went into his office. The others present, including Golden, thought Brown was going for a weapon and ran. Shortly thereafter Brown turned himself into the hospital with a nervous breakdown. Brown testified he called Wilson- Eichelberger on Thursday to come pick up the body but they told him they would not touch it because the state had become involved. Friday morning Brown called Winfred Burrell, a licensed funeral director. Burrell was not at home but his wife could get in touch with him and have him call Brown at the hospital. Burrell called Brown who asked Burrell to go to the funeral home and take over the job of getting the body released and to have the Fosters agree to pay for the services Brown had rendered. He gave Burrell full authority to act for Brown. Burrell arrived at the funeral home late Friday afternoon, met with the Fosters, and entered into an agreement with them to pay Respondent $300 for embalming the body and $45.00 each for two trips with the body, one from the hospital to the funeral home and one to the other funeral home. The body was delivered to Wilson-Eichelberger Friday night and the funeral was held Saturday. Lelia Dellafield has little recall of what took place immediately following Vincent's death. She does not recall specifically what she did and did not do. The only reason she maintained she did not sign Exhibit 1 is because that is not her signature on that document. In addition to the insurance policy, Lelia and her children are the beneficiaries of Vincent's worker's compensation. This is a $100,000 benefit which Lelia receives in biweekly installments from her lawyer and trustee. She has no idea how long these payments will continue. In addition to the triple indemnity insurance policy and the survivor's benefit from worker's compensation, the worker's compensation coverage also provided $2,500 for funeral services. The insurance carrier for the construction company for whom Vincent worked is Florida Farm Bureau Insurance Company (FFB). FFB paid the bill for services in the amount of $2,366.50 to Wilson-Eichelberger. Later FFB received a letter from the attorney for Lelia asking for payment of the $390 paid to Brown and FFB wrote to Brown asking if that amount was correct. FFB then paid the balance of the $2,500 (less the $2,366.50 paid to Wilson-Eichelberger) or $133.50 to Lelia. Upon receipt of the inquiry from FFB Brown prepared a bill for services performed for Vincent Foster in the amount of $1,170 and forwarded it to FFB for reimbursement (Exhibit 4). Brown testified he did not expect to get paid for the services listed in the bill, which included arranging, supervising, and conducting a funeral, but sent it in because FFB "asked him to."
The Issue The issues are as follows: (a) whether Respondent violated Section 470.036(1)(t), Florida Statutes, by embalming a deceased human body without obtaining permission from a legally authorized person; (b) whether Respondent violated Section 470.036(1)(p), Florida Statutes, by refusing to promptly surrender custody of a dead human body upon the express order of the legally authorized person; and if so, (c) what penalty should be imposed.
Findings Of Fact Respondent is the licensed funeral director in charge for Marion Graham Mortuaries in Jacksonville, Florida. Catherine Gillis died at her home in Jacksonville, Florida, on August 6, 2000. Ms. Gillis was 70 years old at the time of her death. Patricia Stokes, Ms. Gillis's daughter, called 911 when she found her mother on the kitchen floor. Deputy Michael Williams from the Jacksonville Sheriff's Office responded to the call. Deputy Williams was unable to contact Ms. Gillis's doctor, Dr. David Badolato. The on-call physician in Dr. Badolato's office refused to sign off on the death certificate. Therefore, Deputy Williams called the Duval County Medical Examiner's Office, making contact with Deanna Webber, a forensic investigator. After Ms. Webber spoke to the medical examiner, she called Deputy Williams back. She told him that Ms. Gillis's body could be transferred to the funeral home of the family's choice but the body must be held until the personal physician made a commitment to sign the death certificate or the medical examiner inspected the body and signed the death certificate. Ms. Stokes, in consultation with her church sister, Ms. Theresa Williams, chose Respondent's funeral home to receive the body on the evening of August 6, 2000. Deputy Williams then contacted Respondent's funeral home, specifically stating that the body was to be held for inspection by the medical examiner in case the personal physician did not agree to sign the death certificate. River City Removal Service transported Ms. Gillis's body to Respondent's funeral home at approximately 7:30 p.m. on August 6, 2000. Even though Ms. Stokes had approved this transfer, she mistakenly believed that the medical examiner's office had taken the body to the morgue. On Monday, August 7, 2000, Ms. Stokes called the medical examiner's office to inquire about an autopsy on her mother's body and to instruct its removal to an establishment other than Respondent's funeral home. After the call, Ms. Stokes understood that an autopsy would not be performed at public expense and that Ms. Gillis's body was already at Respondent's funeral home. In the meantime, Willie Mae Albany arrived for work at Respondent's funeral home at approximately 9:00 a.m., on August 7, 2000. At that time, Ms. Albany's job included performing clerical duties. Respondent arrived at the funeral home about 10:30 a.m., on August 7, 2000. He knew there were three bodies that needed to be embalmed that day: (a) Dorothy Green, whose body had been received on Sunday, August 6; (b) Leonard Hopkins, whose family had signed a release and permission to embalm on Saturday, August 5; and (c) Jimmie Simpson, whose body had been received on Monday, August 7. Respondent was aware when he arrived at the office that there was no authorization to embalm Ms. Gillis. He instructed Ms. Albany to contact Eric Fleming, a freelance trade embalmer, to come in to embalm Ms. Green, Mr. Hopkins, and Mr. Simpson. Mr. Fleming was not an employee of Respondent's funeral home. Instead, he was paid by the case. Ms. Albany left several telephone messages for Mr. Fleming advising him about the three bodies that needed to be embalmed. She did not know exactly when he came to work, but she transferred a telephone call to Mr. Fleming in the embalming room at the funeral home about 11:30 a.m. Ms. Albany also contacted Dr. Badolato's office on the morning of August 7, 2000. After that telephone call, Ms. Albany understood that Dr. Joedrecka Brown would sign the death certification for Ms. Gillis. Ms. Albany then typed an Application for Burial-Transit Permit for Ms. Gillis. This form advises the county health department that someone has died and that a death certificate is forthcoming. Ms. Albany placed the burial-transit permit application on the counter where Respondent usually picks up the typed forms. Respondent signed the form on August 7, 2000, even though his signature on the form was dated August 9, 2000. Because her mother's body was already at Respondent's funeral home, Ms. Stokes decided to make funeral arrangements with Respondent instead of removing the body to another establishment. Thus, Ms. Stokes and her church sister, Ms. Williams, went to Respondent's funeral home around 4:00 p.m., on April 7, 2000, for an appointment with Respondent. Ms. Albany greeted Ms. Stokes when she arrived at Respondent's funeral home. Ms. Albany advised Ms. Stokes that Respondent was delayed and that he wanted her to begin filling out the paperwork. Ms. Albany then took Ms. Stokes and Ms. Williams to a conference room. Ms. Albany had a file containing the necessary paperwork. Ms. Albany sat with Ms. Stokes, identifying the documents in the file as she handed them to Ms Stokes. One of the documents in the file was an Authorization to Embalm form. After Ms. Albany explained the purpose of the form, Ms. Stokes signed it without asking any questions. Ms. Albany also presented Ms. Stokes with a Disclosure/Disclaimer form, a death certificate application, an arrangements form, and a newspaper release form. Ms. Stokes filed out these forms and signed each one that required her signature except for the funeral purchase contract. Ms. Albany did not discuss the funeral purchase contract with Ms. Stokes. Ms. Albany stayed with Ms. Stokes and Ms. Williams in the conference room for about 15-20 minutes. After leaving the conference room, Ms. Albany noticed that Respondent had arrived at the funeral home. Respondent arrived at the funeral home sometime before 4:40 p.m. Respondent first checked the reception counter where he found the completed burial-transit permit for Ms. Gillis. At that point, he knew that Ms. Gillis's body could be embalmed and that the family could proceed with the funeral service arrangements. Respondent began his meeting with Ms. Stokes and Ms. Williams at approximately 4:40 p.m. During the conference, Respondent reviewed all of the forms with Ms. Stokes, including her signed Authorization to Embalm form. In discussing the funeral arrangements, Ms. Stokes informed Respondent that she definitely wanted a formal visitation for her mother. Respondent knew that the embalming process needed to begin as soon as possible in order for the body to be presentable for formal visitation. The greater weight of the evidence indicates that Respondent, and not Ms. Albany, escorted Ms. Stokes and Ms. Williams to the selection room to view caskets at approximately 5:00 p.m. Respondent left Ms. Stokes and Ms. Williams in the selection room and went next door to the embalming room to speak to Mr. Fleming. Mr. Fleming had just completed the embalming process of Mr. Hopkins. Respondent directed Mr. Fleming to begin embalming Ms. Gillis because her daughter had given permission. Respondent returned to the selection room 30 seconds later. Respondent proceeded with the embalming while Ms. Stokes was in the funeral home. He made this decision based on his knowledge that Dr. Brown would sign the death certificate, thereby releasing the medical examiner's hold on the body. He also had a written authorization from Ms. Stokes to embalm. The majority of Respondent's cases are embalmed before he obtains a signed funeral purchase agreement. Respondent, Ms. Stokes, and Ms. Williams returned to the conference room to discuss the funeral purchase contract, showing the prices for a graveside service and a church service. This discussion lasted another 30 to 45 minutes. Ms. Stokes did not sign the funeral purchase contract, in part, due to her concern about the quoted prices. She advised Respondent that she would have to consult with a relative regarding the costs of a graveside service or a church service. Before she left the funeral home, Ms. Stokes asked Respondent if he had done anything to her mother's body. Respondent replied that he had embalmed Ms. Gillis because by that time, the embalming process was more than half complete. It takes an average of one hour to one and one half hours to embalm a body. For a worst case scenario, it would take approximately three hours to embalm a body. Leonard Hopkins would have taken longer than average to embalm because he had been the subject of an autopsy. Ms. Stokes consulted with relatives upon returning home on the evening of August 7, 2000. The family decided that Respondent's prices were too high. Ms. Stokes contacted Respondent by telephone around 9:00 p.m. She instructed Respondent not to do anything else to her mother's body because she intended to retain the services of another funeral home. Ms. Stokes also wanted to know what she owed Respondent. Respondent replied that he did not have the papers in front of him but that the expenses were approximately $850 for transporting, embalming, and paperwork. Respondent did not overtly state or imply that he would not release the body until he was paid. The next morning, Tuesday, August 8, 2000, Ms. Stokes made arrangements with Toston-LaFrans Funeral Home to handle her mother's funeral. Ms. Stokes then went to Respondent's funeral home where Respondent's staff informed her that the expenses were $860. Respondent was not at the funeral home on the morning of August 8, 2000. He was not there when Ms. Stokes returned to the funeral home around 1:00 p.m. Ms. Stokes then made arrangements with Toston-LaFrans Funeral Home to have Ms. Gillis's remains removed to their facility and to pay Respondent. In the meantime, Ms. Albany advised Respondent that Ms. Stokes wanted the body moved to Toston-LaFrans Funeral Home. When Respondent could not reach Ms. Stokes by telephone, he contacted Mrs. Walker of Toston-LaFrans Funeral Home, informing her that he needed a signed release prior to the removal of the body. After that telephone call on August 8, 2000, Respondent understood that Ms. Stokes would sign a release at Toston- LaFrans Funeral Home before the body was transported. Sometime before 2:00 p.m., on August 8, 2000, the medical examiner's office confirmed that Dr. Brown would sign Ms. Gillis's death certificate. The medical examiner's office then contacted Respondent's funeral home to let them know that the hold on the body was lifted. On Wednesday, August 9, 2000, around 4:30 or 5:00 p.m., Toston-LaFrans Funeral Home called to advise Respondent that Ms. Stokes had signed a release. Respondent informed Toston-LaFrans Funeral Home that the body could be picked up anytime before the office closed at 6:00 p.m., or after that time if need be because Respondent would be working late that evening. Ms. Gillis's body was removed to Toston- LaFrans Funeral Home that evening after 6:00 p.m. Respondent paid Mr. Fleming by check on August 12, 2000, for embalming four bodies, including Ms. Gillis, on August 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Sherry Landrum, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent violated Subsections 470.036(1)(g) and (p), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Basilia Valerio Suazo passed away on February 10, 1999, in Miami, Florida. Her daughter, Rosa Alvarez, and her son, Carlos Alvarez, went to Poitier Funeral Home, Inc. (Poitier Funeral Home), on February 15, 1999, to discuss funeral arrangements. Poitier is a funeral director for Poitier Funeral Home. Ms. Alvarez signed an authorization form on Poitier Funeral Home letterhead, which stated: I hereby designate the above-named funeral establishment to take charge of funeral arrangements for: Basilia Valerio Suazo, and I authorize the release and removal of the remains to said funeral establishment for the purpose of embalming. I represent that I am the next of kin, or am acting as an authorized representative for the next of kin. We agree to pay $425.00 for embalming, $90 for removal and $35.00 per day for storage if there are any problems or discrepancies [sic] before removal of any kind. Poitier ran some numbers for the Alvarezes, but neither Rosa nor Carlos Alvarez can recall the specific amount which Poitier was going to charge. Poitier showed them a casket, which he said he would provide free of charge. On February 16, 1999, Mr. Alvarez and Ms. Alvarez returned to Poitier Funeral Home and saw their mother's name listed on the board with the time and date of the viewing and burial. Ms. Alvarez had contacted out-of-town relatives and advised them of the dates of the viewing and burial. Nine relatives were coming from New York and an uncle was coming from Honduras. The out-of-town relatives arrived prior to the time scheduled for the viewing and burial. On February 19, 1999, someone from Poitier Funeral Home called the Alvarez residence and advised a relative of Ms. Alvarez that Poitier was not going to conduct the funeral on the next day. Rosa and Carlos Alvarez went to the funeral home to see why the funeral could not take place. Poitier was not in when they arrived, and they spoke to an associate of Poitier. Mr. Alvarez explained that he had a workers' compensation claim from which he could pay for the funeral, but the funds would not be available before the date of the funeral. Poitier's associate advised them Poitier could not perform the funeral without being paid first. As they were leaving, Poitier appeared and told them that the funeral could not take place. Rosa and Carlos Alvarez went to Mr. Alvarez's attorney who was handling the workers' compensation claim to see if Mr. Alvarez could receive money to pay for the funeral. The attorney sent them to Panciera Funeral Home (Panciera), where they received a cost estimate. They went back to see Poitier and gave him the information from Panciera, including a copy of a planner in which Panciera estimated the cost of the funeral to be in excess of $3,000. Poitier called and spoke to someone at Panciera and asked whether Panciera would do the funeral for free because the Alvarezes did not have any money. The representative from Panciera said that Panciera could not provide a funeral for free. On February 21, 1999, the Alvarezes went to Calvin Butler, Jr. Memorial Funeral Home, Inc. (Butler Funeral Home), spoke to Rebecca Butler, and signed an authorization allowing the release and removal of Ms. Suazo's remains to the Butler Funeral Home. Rosa and Carlos Alvarez made payment arrangements with Ms. Butler. Ms. Butler sent a copy of the authorization to Poitier Funeral Home by facsimile transmission on February 21, 1999. She called Poitier Funeral Home on February 22, 1999, and spoke to Mr. Richardson. She sent another facsimile of the authorization to Poitier Funeral Home on February 22, 1999. During the week of February 22, 1999, Ms. Butler spoke to Poitier concerning the release of Ms. Suazo's remains, and Poitier told Ms. Butler that he wanted to get paid, but the family did not have any funds. Ms. Butler hired Quality Removal to pick up the remains of Ms. Suazo at Poitier Funeral Home, but Quality Removal was unsuccessful in its attempts to get the body released from Poitier Funeral Home. On February 23, 1999, the Department received a complaint from Rebecca Butler concerning Poitier's refusal to release Ms. Suazo's remains. On February 23, 1999, Clarence Ford, an investigator with the Department, called Poitier and asked him to release the body. Poitier refused to release the body unless the Alvarezes paid him $700. Poitier claims that the Alvarezes came to Poitier Funeral Home on February 23, 1999, and showed them a planner from Panciera and asked Poitier not to do anything until he heard from them. Based on the evidence presented, the Alvarezes did not meet with Poitier on February 23, 1999, and did not advise him to do nothing until he heard from them. On February 24, 1999, Mr. Ford again called Poitier and asked that the body be released, and Poitier again refused to release the body. On February 25, 1999, the Alvarez's along with Clarence Ford went to Poitier's Funeral Home to talk to Poitier about releasing Ms. Suazo's body to Butler Funeral Home. Poitier was unavailable when they arrived so they sat and waited for an hour for Poitier to finish his business. A security guard told Ford and the others that he did not want them to be talking while they were waiting and to go outside. Rosa Alvarez remained in the waiting area until Poitier came out. Poitier appeared to be upset with Ms. Alvarez and yelled at her to leave his property. Rosa Alvarez asked Poitier whether he was going to charge them anything in order or them to remove the body, and Poitier replied that it would cost $700. After being told to leave the property the Alvarez party went outside, where they were advised by a security guard that they could not have Ms. Suazo's body. Later on February 25, 1999, Mr. Ford and Mr. Drummet, another investigator from the Department, returned to Poitier's Funeral Home with Quality Removal. At that time, Mr. Ford had a death certificate and the demand to transport the body and presented them to Poitier, who released the body. The Department has incurred the following costs associated with the investigation and prosecution of this case: $13.30 related to the issuance of the complaint and $1,188.91 relating to the investigation. The Department also claims 25 hours related to legal work, but it did not establish whether the hours were actually costs or for attorneys' fees. In its proposed recommended order, the Department stated that costs incurred, excluding attorney time, was $1,521.61, and that the Department would incur the cost of the transcript of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Bernard Poitier violated Subsections 470.036(1)(g) and (p), Florida Statutes, imposing an administrative fine of $1,000, placing Mr. Poitier on probation for one year, and assessing costs of $1,521.61 plus the cost of the Transcript of the final hearing. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2000. COPIES FURNISHED: Laurie Beth Woodham, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 David K. Minnaci, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Michael B. Feiler, Esquire Michael B. Feiler, P.A. 122 Minorca Avenue Coral Gables, Florida 33134 Madeline Smith, Executive Director Department of Business and Professional Regulation Board of Funeral Directors and Embalmers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence produced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding Respondent Larkins was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued licensed numbers FE 2310, E 2310 and FD 2106. At all times pertinent to this proceeding the Respondent Anderson was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 2204, E 2204 and FD 2003. At all times pertinent to this proceeding Respondent Evans was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 790, E 790 and 672. At all times pertinent to this proceeding Respondent Stone was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 459, E 459 and 205. At all times pertinent to this proceeding Respondent Stone Funeral Home was licensed as a funeral establishment by the Board of Funeral Directors and Embalmers, having been issued license number FH 214. The corporate officers of said establishment are Fannie B. Stone, President; Rosalyn Gordon, Secretary- Treasurer; and Raymond S. Gordon, Vice-President. Raymond S. Gordon's address is the same as the Respondent funeral establishment, 2401 East Columbus Drive, Tampa, Florida. Neither Raymond S. Gordon nor Rosalyn Gordon have ever been licensed as a funeral director, embalmer, funeral director intern or embalmer intern by the Florida Board of Funeral Directors and Embalmers. James Williams was a licensed funeral director in charge of Williams Funeral Home, Plant City, Florida, between October 1979 and March 1980. Williams was never the licensed funeral director in charge of the Respondent funeral establishment. On or about October 28, 1976, the Board of Funeral Directors and Embalmers was advised that Respondent F.B. Stone had replaced William Gordon as the funeral director in charge of the Respondent funeral establishment. The Respondent Anderson replaced Respondent F.B. Stone as the funeral director in charge of Respondent establishment on August 4, 1980, and prior to that time, Respondent Anderson was the funeral director in charge of a Lakes Wales funeral home. The Respondent Anderson notified the Board of Funeral Directors and Embalmers that he was no longer the funeral director in charge of Respondent funeral establishment as of August 27, 1980. It was not until on or about October 1, 1980, that the Board of Funeral Directors and Embalmers was advised that Respondent Evans was the funeral director in charge of Respondent funeral establishment. By letter dated May 14, 1981, Respondent Larkins notified the Board of Funeral Directors and Embalmers that he was the funeral director in charge of Respondent funeral establishment as of April 1, 1981. As a normal course of conduct, affidavits of cases embalmed and bodies handled by the Respondent funeral establishment were filed with the local registrar of vital statistics, more than five working days after the end of each month The following chart sets forth the months in question and the actual date of filing of the affidavits with the local registrar of vital statistics: MONTH ACTUAL DATE OF FILING AFFIDAVIT January 1980 February 28, 1980 February 1980 April 7, 1980 March 1980 October 14, 1980 April 1980 October 14, 1980 May 1980 October 14, 1980 June 1980 October 14, 1980 July 1980 October 14, 1980 August 1980 October 14, 1980 September 1980 (Signed October 7, 1980) October 1980 (Received by Board December 1, 1980) November 1980 (Signed December 9, 1980) December 1980 January 29, 1981 January 1981 February 5, 1981 February 1981 March 18, 1981 March 1981 June 26, 1981 April 1981 June 26, 1981 May 1981 June 26, 1981 June 1981 July 9, 1981 July 1981 (Signed August 5, 1981) August 1981 November 4, 1981 September 1981 November 4, 1981 October 1981 January 3, 1982 November 1981 January 3, 1982 December 1981 January 3, 1982 January 1982 February 14, 1982 February 1982 April 9, 1982 March 1982 April 9, 1982 April 1982 May 6, 1982 May 1982 June 4, 1982 June 1982 July 12, 1982 (Petitioner's Exhibit 1) The Respondents were placed on notice, both written and oral, of the lateness of filing the affidavits of cases embalmed and bodies handled. A review of Petitioner's Exhibit 1, the affidavits of cases embalmed and bodies handled, reflects that between July 1979 and September 1979, the affidavits were signed by Elliot C. Bruton as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge. Between October 1979, and March 1980, James Williams signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge and Williams was the licensed funeral director in charge of another establishment. Between the dates of April 1980, and July 1980, Respondent Anderson signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the funeral director in charge and Respondent Anderson was employed as the funeral director in charge during this same time period at a Lake Wales funeral home. Respondent Anderson informed an investigator for the Department of Professional Regulation that affidavits for the months of April through July were signed by him and submitted based upon the request of a previous Executive Director of the Board of Funeral Directors and Embalmers. However, Respondent Anderson also informed the investigator that after submitting the affidavits he remembered that the affidavits were incorrect in certain material respects as to the embalmer, but Respondent Anderson has never attempted to amend the affidavits. While the affidavit for September 1980, lists E. Marion Evans as the embalmer and the funeral director in charge, by letter dated October 7, 1980, the Respondent Evans informed the Board that he was the funeral director in charge as of October 1, 1980. On or about November 1981, the Respondent funeral establishment amended its exterior sign to delete the name of Respondent F.B. Stone as the funeral director in charge and display instead the name of the actual full-time funeral director in charge, at that time, Respondent Larkins. In late March 1981, Dessie Alexander's son, Alfred Alexander, died and Mrs. Alexander made arrangements through Respondent funeral establishment to have her son buried. She called the Respondent funeral establishment and left word for Raymond Gordon to call her back. Raymond Gordon then called her and she told him she wanted to release her son's body to him. Raymond Gordon then came to Dessie Alexander's home and asked her to sign a release paper so that he could pick up the body at the morgue, which she signed. Raymond Gordon called her later and asked her to come to the Respondent funeral establishment to make funeral arrangements. She and her family arrived at the Respondent funeral establishment and, with the assistance of Raymond Gordon, chose a funeral casket. Raymond Gordon took the family to the cemetery to purchase a cemetery lot for the burial. At the Respondent funeral establishment, Raymond Gordon assisted the family in determining the exact funeral arrangements necessary. Marion Evans, although present at the funeral establishment building at certain times, was not involved in the formulation of the funeral arrangements and did not act in a supervisory capacity over Raymond Gordon. Raymond Gordon wrote the funeral purchase contract, and after determining and itemizing the charges, had the family sign the contract. At the funeral service of Alfred Alexander at a local church, Raymond Gordon and Rosalyn Gordon were present, with Ms. Gordon making the payments to the pianist and minister while Raymond Gordon coordinated the funeral services. Respondent Evans was not involved in conducting the funeral service of Alfred Alexander. During this time period, Respondent Evans was the funeral director in charge of the Respondent funeral establishment. Thelma Collins utilized the Respondent funeral establishment on April 29, 1981, when her son, Anthony Bethea, died. Ms. Collins spoke with Raymond Gordon and then he, Stanley Larkins and another unidentified person came to her home. Raymond Gordon spoke with Ms. Collins at her home. At this time, Ms. Collins and Raymond Gordon discussed picking up the body, the time of death and other information concerning the deceased. Ms. Collins' funeral purchase agreement, Petitioner's Exhibit 4, was executed at the Respondent funeral establishment and was drafted, discussed and explained by Raymond Gordon to Ms. Collins when no other employees or agent of the Respondent funeral establishment was present. The funeral service was conducted at a local church and Raymond Gordon, Rosalyn Gordon and an unlicensed workman for the Respondent funeral establishment attended. Ms. Collins does not remember the presence of Respondent Larkins at the funeral service. Marie Butler's sister, Cora Evans, died in January 1980, and the Respondent funeral establishment handled the funeral arrangements and services. Raymond Gordon arranged the funeral service, determined prices and contractual terms and conditions, assisted in determining the arrangements to be made for the funeral service, and conducted and directed the funeral services at the church and grave site. In June 1980, when Respondent Larkins was the registered funeral director in charge of the Respondent funeral establishment, Marie Butler's brother died. Raymond Gordon again personally handled all the funeral arrangements and services by arranging the funeral service, determining prices and contractual terms and conditions, assisting in determining the arrangements to be made for the funeral service, and conducting and directing the funeral services. Respondent Larkins was physically present during most of these activities but did not directly supervise the arrangements of the funeral services. Virgilio O'Farrell died on May 11, 1981, during the time that Respondent Larkins was the funeral director in charge of Respondent funeral establishment. Gail Blackman arranged the funeral services for Mr. O'Farrell through Respondent funeral establishment. Ms. Blackman did not recall dealing with Respondent Larkins in arranging the funeral services through Respondent funeral establishment, but dealt instead with two unknown men from the Respondent funeral establishment. Respondent Larkins testified that during his employ at Respondent funeral establishment, April 1980 through the present, he has been the only licensed funeral director representing the Respondent funeral establishment. Respondent Larkins remembered the Thelma Collins' transaction. On this occasion as well as others, Raymond Gordon was present but Larkins did most of the talking regarding the funeral arrangements. He remembered this particular case because it was the first funeral arrangement he handled in Progress Village. The affidavits of cases embalmed and bodies handled were late in being properly filed due to the fact that Raymond Gordon was acting as the courier of the affidavits and he failed to timely post the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered placing the Respondents Larkins, Evans, Anderson, Stone and Stone Funeral Home on reporting probation for a period of two years and imposing an administrative fine of $750 per Respondent. During the probationary period, the Respondents should be required to regularly certify to the Board that they are complying with all requirements of Chapter 470, Florida Statutes in a timely and accurate manner. DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that (1) Respondent Randell E. Aultman be found guilty of violating Sections 470.036(1)(e) and (o) on three occasions by reason of his failure to timely file death certificates and that Aultman be found guilty of violating the same statutes for failure on three occasions to timely obtain a burial-transit permit and to see that such permits accompanied the bodies when being transported out-of-state, and (2) Respondent The American Funeral Home be found guilty of violating Subsections 470.036(1)(e) and (o) on four occasions by reason of its failure to timely file death certificates, and that American be found guilty of violating the same statutes for failure to timely obtain burial- transit permits on five occasions and to see that such permits accompanied the bodies when being transported out-of-state. It is further RECOMMENDED that Respondent Aultman be given a public reprimand and that Respondent The American Funeral Home be given a public reprimand and required to make six monthly filings as set forth in the Conclusions of Law portion of this order. DONE and ENTERED this 5th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982.
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 =================================================================
