Findings Of Fact In the face of resistance to its standing, Petitioner presented no evidence. Accordingly, the record is devoid of any proof that a substantial number of its members are "substantially affected" by the challenged rule, that the subject matter of the rule is within the association's general scope of interest and activity, and that the relief requested is of a type appropriate for a trade association to receive on behalf of its members.
The Issue The issue is whether Respondent violated section 497.152(1)(a) and (b), Florida Statutes (2013), and, if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts The Department and the Division of Funeral, Cemetery and Consumer Services (“Division”) within the Department have jurisdiction over cemetery license number F039451. At all times relevant to this matter, Rose Hill was licensed as a cemetery (license number F039451), pursuant to chapter 497, Florida Statutes. Rose Hill operated at 4406 Chelsea Avenue, Tampa, Florida 33610. In 2013, Petitioner received a complaint from Mr. Leonardo Rodriguez-Martinez alleging that Rose Hill failed to use due care in the installation of a casket and vault during a grave-site funeral ceremony for his wife, Mrs. Maria Benitez Lugo. In 2013, Mr. Rodriguez-Martinez contracted with Rose Hill for burial services for Mrs. Lugo along with the installation of a vault and casket. On or about April 17, 2013, Rose Hill performed the contracted burial services. After the services were completed, the casket was placed in a cement vault. The body of the deceased was inside the casket. In order to lower the vault and casket into the burial plot, Rose Hill used a back hoe and attached a chain to the cement vault with the casket inside. Raymond Coleman works for Rose Hill. He operated the back hoe used to inter the vault and casket of Mrs. Lugo. While attempting to move the vault and casket, the chain attached to the back hoe broke causing the vault to fall and crack. The cement vault cracked in such a manner that it was rendered unusable for the interment of Mrs. Lugo’s casket. Rose Hill staff proceeded to find a replacement vault. Soon thereafter, Rose Hill replaced the broken chain and the broken vault and interred the casket without further incident. Findings of Fact Not Stipulated to by the Parties George Saclarides was hired in 2008 as the cemetery manager at Rose Hill. As manager, Mr. Saclarides is responsible for maintaining the cemetery, purchasing equipment, maintaining the equipment and supplies needed to operate the cemetery, hiring the staff to maintain the premises, and performing cemetery services. He is the individual responsible for meeting with consumers and entering into contracts for services at Rose Hill. Mr. Saclarides hired Raymond Coleman as the assistant cemetery manager. Mr. Coleman is responsible for the daily maintenance of the cemetery grounds. He cuts the grass, maintains the premises, and performs general repairs. Mr. Coleman also leads a team of workers during cemetery services. These responsibilities include digging burial plots, transporting cement vaults, and interring cement vaults and caskets. Mr. Saclarides met with Mrs. Lugo’s family after her death. Mr. Rodriguez-Martinez, the complainant in this matter, discussed the burial arrangements for his wife, Mrs. Lugo. An interpreter was used during these discussions because Mr. Rodriguez-Martinez speaks Spanish, not English, and Mr. Saclarides does not speak Spanish. During this meeting, Mr. Saclarides discussed the service with the family and informed Mr. Rodriguez-Martinez that a remote set-up would be used for his wife’s burial service, followed by the transport of his wife’s casket via John Deere front end loader to her final resting place within the cemetery. Mr. Rodriguez-Martinez expressed concern with how his wife’s casket would be transported to the burial plot and said he preferred to have pallbearers lift and carry the casket to the final burial location. Mr. Saclarides’ reason for having the service at the remote location within the cemetery, then transporting the casket to the burial plot, was that the remote location was more convenient for elderly and people unable to walk on uneven ground to reach the site. Also, some people do not like to walk across gravesites to reach the burial plot. In retrospect, Mr. Saclarides was glad he suggested the remote site for the service. The day of the funeral when the burial plot was dug, the maintenance workers had a difficult time shoring up the sides of the plot. This was due to the high content of “sugar sand” in the soil which causes the sides of the plot to crumble or cave in. He does not believe the pallbearers could have carried the casket all the way to the site because the two sand piles from the site were blocking access to the site. Also, he feared the sides of the site could crumble or even collapse. On April 19, 2013, the services started at the front of the cemetery, in the remote location, and went smoothly. As the family and Mr. Saclarides were walking the 65-70 feet from the remote location to the burial site, Mr. Rodriguez-Martinez (and others) heard a loud crash. When the back hoe was lifting the vault with Mrs. Lugo’s casket inside, the chain attaching the vault to the back hoe broke, and the vault and casket fell about two to three feet to the ground. Mr. Rodriguez-Martinez returned to the remote location after hearing the crash and found the cement vault with his wife’s casket lying on the ground. The vault had broken in the fall. The casket was undamaged. Ms. Christina Wilder, a guest at the funeral, witnessed the events as they unfolded. She saw the casket swinging as it was lifted and heard the vault fall, stating it sounded “like a cannon shot.” She was critical of Rose Hill for not having a plan in place for emergencies or mishaps such as this. Rose Hill did have a plan in place. Mr. Saclarides sent his employees, including Mr. Coleman, to retrieve a new vault from the rear portion of the cemetery and place the casket inside to be moved, with a new chain attaching it to the back hoe, to the burial plot. This entire process caused a delay of about 45 minutes. Ms. Wilder was present with Mr. Rodriguez-Martinez and served as his interpreter when he met with Ms. Jessica Helms, the Division’s examiner. Ms. Wilder helped Mr. Rodriguez-Martinez file his complaint and provided pictures and a DVD of the funeral service and the incident to Ms. Helms. Ms. Helms investigated the complaint filed by Mr. Rodriguez-Martinez. She is responsible for inspections, financial examinations, and investigations into licensees of the Division. She has completed over 100 complaint investigations while employed with the Division. Ms. Helms has completed approximately five inspections of Rose Hill. She visited the cemetery to investigate Mr. Rodriguez-Martinez’s complaint. She was already familiar with the set-up at Rose Hill. She had expressed her safety concerns regarding the remote set-up with Mr. Saclarides on multiple occasions. Rose Hill continued to use the remote set-up, despite Ms. Helms’ concerns. Ms. Helms inspects about 25 cemeteries a year, and the Division regulates about 150 cemeteries throughout the state. She has never seen the remote set-up at any cemetery, except Rose Hill. Based upon her experience, she believes other cemeteries do not use the remote set-up due to concerns with the risk of keeping human remains secure during transport in a fashion such as occurred in this case. Ms. Helms states that a cement vault is not made to be used for transporting a casket containing human remains. A cement vault is used to support the grave space so that soil, dirt, and other elements will not cause the casket to collapse once interred in the burial space. Ms. Helms testified that National Concrete Burial Vault Association (“NCBVA”) standards deal with the construction and use of concrete burial vaults. She believes the standards suggest that cement vaults not be used as transportation containers. A review of the NCBVA standards provided at the hearing does not support this opinion. The standards neither provide requirements for how to transport a casket inside a vault, nor prohibit such transport. The standards instruct a manufacturer of cement vaults on what materials to use and what load and stress are required. Ms. Helms did provide numerous reasons why she believed the remote grave site is not appropriate and why it could lead to an incident such as occurred here. A remote location was unnecessary in her opinion when immediately following the service the remains were to be interred. Further, having the casket placed into the vault and having the entire 2,000-pound vault attached to a tractor and lifted with the family and guests of the deceased present is an uncommon and inappropriate practice. She believes that allowing this to occur in the presence of those assembled for the funeral is “disturbing.” Ms. Helms questions whether the use of the remote location was for the convenience of the family and guests or for the cemetery. The distance to the final burial site was only 65-70 feet beyond the remote location. Also, the deceased’s spouse wanted the service at the final burial location or, at least, wanted the casket carried by pallbearers, not by tractor, to the final location. Ms. Helms acknowledged that Mr. Saclarides maintains all the required records for Rose Hill and that the cemetery has shown “great improvement” since he took over as manager in 2008. Mr. Coleman has used the same chain that failed in this instance the entire time of his employment at Rose Hill, at least six years. It has never failed in the past. The chain is heavy grade and rated to handle at least 4,000 pounds, more than enough to carry the vault with the casket enclosed. Mr. Saclarides showed remorse on the day of the funeral after the incident with the vault being dropped from the tractor when the chain failed. He used his best efforts to ensure that a new vault was quickly procured, and that the vault and casket were properly interred within 45 minutes of the incident. Mr. Saclarides showed remorse again in his response to the complaint giving rise to this matter when he personally apologized for the accident during the burial service. He noted that Rose Hill had never had a chain break before the incident on April 19, 2013. Mr. Saclarides appeared sincere in his remorse for the incident occurring at the funeral of Mrs. Lugo when he testified at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent Rose Hill violated sections 497.152(1)(a) and 497.386(4) of the Act, as alleged in the Administrative Complaint, and imposing discipline as follows: a $1,000 administrative fine and a reprimand. Further, to the extent the Board has authority, it is recommended that the Board order Rose Hill to cease and desist from its practice of remote burials with transport of the vault containing the casket and initiate rulemaking or seek a legislative change, if desired, to make the practice of remote burials specifically prohibited. DONE AND ENTERED this 9th day of September, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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, 2014. COPIES FURNISHED: Linje E. Rivers, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) George Saclarides Rose Hill Cemetery Company 4406 East Chelsea Avenue Tampa, Florida 33610 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Doug Shropshire, Director Division of Funeral, Cemetery, and Consumer Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0361 (eServed)
Findings Of Fact On September 12, 1988, Petitioner filed an application with Respondent for authority to organize a new cemetery. The application was signed by Ronald A. Samter as President and Manuel A. Hernandez as Secretary and Treasurer. The proposed cemetery is to be located in northwest Dade County at 18100 West Okeechobee Road. On September 15, 1988, Respondent, through its employee Larry Folsom, wrote a letter to Samter concerning the proposed cemetery which stated: ...we need the following: The population of Carol City, West Hialeah and Palm Springs North. The $5,000.00 application fee. Copies of County tax appraisal on Real Estate listed on each proponent's financial statements. Certification of Incorporation showing Corporation is active to do business in Florida for the year 1988. The purpose of that letter was to notify Petitioner of any information needed to complete the application. On November 4, 1988, Folsom wrote a second letter to Samter which stated the following: Our Office has no record of receiving the following information requested in my September 15th letter: The population of Carol City, West Hialeah and Palm Springs North. Copies of county tax appraisal on real estate listed on each proponent's financial statement. Certificate of Incorporation showing the corporation is active to be in business in Florida for the year 1988. Prior to this second letter to Samter, the $5,000 application fee had been received by Respondent. On or about November 5, 1988, Petitioner sent Folsom a letter transmitting the items requested by Respondent. Those documents were received by the Department on November 14, 1988, and Petitioner's application became complete on that date. Although Folsom telephoned Petitioner after November 14, 1988, and there was later correspondence between Petitioner and the Department, Folsom did not write to Samter or Hernandez subsequent to November 14, 1988, to tell them that they had not complied with his requests for additional information. At the time the application was submitted, one of the proposed cemetery's proponents, Louis A. Duran, indicated ownership of real property in Venezuela. County tax appraisals on Duran's property in Venezuela were not included with the information submitted with Petitioner's November 5, 1988, letter because Venezuela does not have tax appraisers. Therefore, it was not possible to provide "county tax appraisals" on property located in that foreign country, and none have ever been provided to the Department. It is uncontroverted that the Department determined Petitioner's application complete without county tax appraisals on Duran's real property in Venezuela. After the application was considered by the Department to be complete, it was evaluated by Folsom, who recommended denial. Folsom did not consider available spaces in any cemeteries beyond 15 miles from the proposed cemetery. His recommendation of denial was based solely upon his conclusion that the number of spaces available in the cemeteries within 15 miles of the proposed cemetery exceeded the number of burials which would take place within 15 miles of the proposed cemetery for the next 30 years. In Dade County, where the proposed cemetery is to be located, there are already more than six licensed cemeteries in existence. For purposes of evaluating the necessity for a new cemetery, the community of the proposed cemetery is a circle with a radius of 15 miles from the site of the proposed cemetery. Within 15 miles from Petitioner's proposed cemetery are located the following existing cemeteries: Miles-Distance Available Name from Petitioner Restrictions Spaces Vista Memorial 8.6 None 85,821 Gardens Our Lady of Mercy 10.0 Catholic 93,700 Lakeside Memorial 11.0 Jewish 51,746 Park Dade Memorial Park 10.0 None 54,656 Flagler Memorial Park 15.0 None 14,448 Mount Nebo 15.0 Jewish Unknown Mount Sinai Memorial 10.0 Jewish 2,027 Park Lincoln Memorial Park 15.0 None 1,259 Menorah Gardens 15.0 Jewish 72,000 Our Lady of Mercy, Lakeside Memorial Park, Flagler Memorial Park, Mount Nebo, Mount Sinai, Lincoln Memorial Park, and Menorah Gardens do not obtain the majority of their burials from the same community as that of the proposed cemetery. The total number of spaces in the remaining two cemeteries located within Petitioner's community (Vista Memorial Gardens and Dade Memorial Park) is 140,477. The community of the proposed cemetery falls within both Dade and Broward Counties. The expected number of burials within the Dade County portion of Petitioner's community for the 30-year period commencing January 1, 1991, is 291,722. The expected number of burials within the Broward County portion of Petitioner's community for the same 30-year period is 47,685. The total expected burials within Petitioner's community for the 30-year period beginning January 1, 1991, is 339,407. Even if the number of spaces available at Vista Memorial Gardens were increased to 144,016 (the maximum estimate by Vista if the cemetery builds its planned mausoleums), and even if the spaces available at Our Lady of Mercy were considered (due to the high density of Catholic population included in a portion of Petitioner's community), the total number of spaces available is 292,372, which is well below the projected 30-year need in Petitioner's community of 339,407. There is a need for Petitioner's proposed cemetery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Banking and Finance issue a Final Order finding that the Petitioner has met the criteria set forth in Sections 497.006(2) and (3), Florida Statutes, and issuing to Petitioner a cemetery license upon Petitioner's compliance with Section 497.006(4), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September 1990. 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 6th day of September 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6856 Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 2(b), 2(c), and 11(c) have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 2(a), 2(e), 2(k), 2(1), 3(a), 3(c), 3(e), 4(a), 5, 6(a), 6(c), 7(a-c), 9(a), 10, 11(a), 11(b), 12, 13, and 14(a)-16(c) have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The Department's proposed findings of fact numbered 2(d), 2(f), 2(h-j), 8(a), 8(b), 11(d), and 11(e) have been rejected as being irrelevant to the issues under consideration herein. The Department's proposed findings of fact numbered 2(g), 4(d), and 4(e) have been rejected as not being supported by the weight of the credible evidence in this cause. The Department's proposed findings of fact numbered 2(m), 3(b), 3(d), 3(f), 4(b), 4(c), 6(b), 9(b), and 9(c) have been rejected as being unnecessary for determination of the issues in this cause. Intervenor's proposed findings of fact numbered 1-3, 11, and 12(b)- 12(h) have been adopted either verbatim or in substance in this Recommended Order. Intervenor's proposed findings of fact numbered 4, 9, and 12(i) have been rejected as not being supported by the weight of the credible evidence in this cause. Intervenor's proposed findings of fact numbered 5 and 6 have been rejected as being unnecessary for determination of the issues herein. Intervenor's proposed findings of fact numbered 7, 8, and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. Intervenor's proposed findings of fact numbered 12(a) and 13 have been rejected as being irrelevant to the issues under consideration herein. COPIES FURNISHED: William M. Furlow, Esquire KATZ, KUTTER, HAIGLER, ALDERMAN, DAVIS, MARKS & RUTLEDGE, P.A. 215 South Monroe Street Suite 400 Tallahassee, Florida 32301 Paul C. Stadler, Jr., Esquire Office of the Comptroller The Capitol - 1302 Tallahassee, Florida 32399-0350 Robert Maxwell, Esquire 135 Westward Drive Miami Springs, Florida 33166 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350 =================================================================
The Issue Whether Petitioner is entitled to a license to establish and operate a cemetery in Palm Beach County, Florida.
Findings Of Fact On or about March 19, 1993, Mount Nebo of the Palm Beaches Memorial Park (Mount Nebo) filed an application for authority to organize a new cemetery company with the Department of Banking and Finance (Department). The application was denied on August 7, 1993. The sole reason given for the denial was that the Department had determined that there was not a "need" for the proposed cemetery. The location of the proposed cemetery is 850 South State Road No. 7, West Palm Beach, Palm Beach County, Florida. The community for determining need is the entire area within a 15 mile radius of the location of the proposed cemetery. The following existing cemeteries in Palm Beach County are located within the community of the proposed cemetery: NAME DISTANCE AVAILABLE SPACES Woodlawn Cemetery 8 5,000 Menorah Gardens 10.7 27,009 Glenwood Memorial Cemetery 10 0 Royal Palm Memorial Gardens 10.7 61,426 Evergreen Cemetery 8 2,000 Our Lady Queen of Peace 2 108,217 Hillcrest Memorial Park 9.5 24,138 Lake Worth Memory Garden 5.8 28,895 Pine Crest 10 1,970 I.A. Banks (f/k/a/ Lake Osborne) 10 3,162 Palm Beach Memorial Park 9.7 18,985 Eternal Light Memorial Gardens 10 47,105 Boyton Beach Memorial Park 11 5,500 Sara Simms Memorial Gardens 11 555 Delray Beach Municipal Cemetery 13 6,912 A niche is a space approximately one cubic foot in size where cremated remains are placed. Niches may be located on blank walls of masoleums and in niche walls or columbariums at the end of a masoleum. The available spaces for the cemeteries listed in Paragraph 3 above are a combination of niches and burial spaces. There are 340,874 total spaces available at the existing cemeteries within 15 miles of the proposed Mount Nebo location. The Department considers cemeteries within a twelve mile radius of the applicant cemetery to derive a majority of their sales from the same community as the applicant. This policy is based on the final order in Memorial Sunset Park v. Department of Banking and Finance, DOAH case number, 89-6856, Final Order entered October 18, 1990. Of the fifteen cemeteries that are located in the community of the proposed Mount Nebo cemetery, there are fourteen cemeteries that are within a twelve mile radius of the Mount Nebo location. Delray Beach Municipal Cemetery is located thirteen miles away. Based on the Department's policy, Delray Beach Municipal Cemetery does not derive a majority of its sales from the Mount Nebo community. Glenwood Memorial Cemetery is closed and, therefore, does not derive a majority of its sales within the community. Based on actual sales, the following facilities derive a majority of their sales from within the community: Palm Beach Memorial Park, Hillcrest Memorial Park, Lake Worth Memory Gardens, Menorah Gardens, Eternal Light and Royal Palm Memorial Gardens. Based on the Department's twelve-mile policy, the remaining cemeteries within a fifteen mile radius of the applicant derive the majority of their sales from within the community. When determining the number of burial spaces available at the existing facilities within the community which derive a majority of their sales from the community, the Department counts the total number of spaces available at the facility, including niches. The Department does not allow for the proration of burial spaces depending on the amount of space, land area, or population shared by a proposed facility and a existing facility. There are 333,962 spaces available at the existing cemeteries that derive a majority of their sales from the same community of the proposed Mount Nebo cemetery. In the next 30 years (January 1, 1994 through December 31, 2023) there will be 223,737 burials within a 15 mile radius of Mount Nebo's proposed cemetery. The number of burials includes cremations. Thus, there will be a need for 223,737 spaces during the thirty year period. The 333, 962 spaces available exceed the need for 223, 737 spaces by 110,225 spaces. There is no need for a new cemetery in the community of the proposed Mount Nebo cemetery. The Department does not and has not licensed a cemetery applicant based upon a specific religion or on a particular religious basis. Dr. Ira Sheskin, the expert witness for Mount Nebo, concluded that there is a need for a Jewish cemetery. He also concluded that there is a need for a nonsectarian cemetery. Based on his analysis he concluded there will be 167,000 spaces available during the next thirty years within the 15 mile radius of the proposed Mount Nebo location. In making his calculation, Dr. Sheskin used an overlapping circle theory, discounted the Catholic spaces available, and discounted the spaces which would be used by persons not residing in Palm Beach County. Dr. Sheskin's overlapping circle theory means that one considers only the area in which the Mount Nebo 15 mile circle overlaps with the 15 mile circle of an existing cemetery and prorates the number of spaces available at the existing cemetery based on the percentage of the overlap to the area within the 15 mile circle of the existing cemetery. In discounting the Catholic spaces at Our Lady Queen of Peace, Dr. Sheskin assumed that of the general population 31.1 percent are Catholic, resulting in 67,345 Catholics being buried within the 15 mile circle of Mount Nebo. There are 99,560 spaces available at Our Lady Queen of Peace, which means that 32,215 spaces will still be available at Our Lady Queen of Peace at the end of the thirty year period. He further discounted the spaces available based on his assumption that 20 percent of the persons who will be buried within the 15 mile circle will not be residents of Palm Beach County. Menorah Gardens' expert witness, Dr. Ronald Schultz, applying a modified overlapping circle theory, calculated the spaces available for the thirty year period to be 294,000. Dr. Schultz's theory considers the geography and the population of the overlapping areas. He considered this number to be an adequate supply. The methodologies employed by Dr. Sheskin and Dr. Schultz fail to comport with existing law, as discussed in the conclusions of law, and are rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for a license to establish a new cemetery in Palm Beach County. DONE AND ENTERED this 14th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5390 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate to the facts actually found. Paragraph 3: Rejected as constituting a conclusion of law. Paragraph 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Rejected as not supported by the greater weight of the evidence. Paragraphs 7-11: Rejected as not supported by the greater weight of the evidence. Paragraph 12: Rejected as not supported by the greater weight of the evidence. Additionally, it is immaterial since the granting of a license is not based on a religious basis. Paragraph 13: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted to the extent it refers to the 15 facilities listed in Petitioner's Exhibit "C" but not to the exent that if infers that 340,874 spaces are available in the facilities in the community that derive a majority of their sales from the community. Paragraph 3: The first two lines are accepted. The last two lines are rejected as constituting a conclusion of law. Intervenor Menorah Gardens' Proposed Findings of Fact Paragraph 1-2: Accepted, except the date of the notice of denial which is August 7, 1993. Paragraph 3: Rejected as recitation of the statute. Paragraph 4: The first sentence is accepted in substance. The last sentence is rejected as constituting a conclusion of law. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary. Paragraph 8: Accepted in substance. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as recitation of testimony. Paragraphs 13-16: Rejected as subordinate to the facts actually found. Paragraph 17: Rejected as constituting a conclusion of law. Paragraph 18: Rejected as subordinate to the facts actually found. Paragraph 19: Rejected as not supported by the greater weight of the evidence as it relates to past need analyses other than the application at issue in Memorial Sunset Park, Inc. v. Department of Banking and Finance and Pershing Industries. Paragraphs 20-22: Rejected as subordinate to the facts actually found. Paragraph 23: Rejected as recitation of the rule. Paragraph 24: Rejected as constituting a conclusion of law. Paragraph 25: Accepted in substance. Paragraphs 26-27: Rejected as constituting conclusions of law. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts actually found. Paragraph 31: Rejected as constituting a conclusion of law. Paragraphs 32-40: Accepted in substance. Paragraphs 41-43: Accepted in substance. Paragraph 44: Rejected as constituting argument. Paragraphs 45-50: Rejected as subordinate to the facts actually found. Paragraph 51: Rejected as not supported by the greater weight of the evidence. Mr. Grosmaire testified that the Department considers facilities within a twelve mile radius of the applicant to derive the majority of their sales from the community. Delray Beach Municipal Cemetery is not within the twelve-mile radius of the applicant. Paragraph 52: Accepted in substance as to the Department but rejected as to Dr. Schultz. Paragraph 53: Accepted in substance. Paragraph 54: Rejected as recitation of testimony. Paragraph 55: Rejected as constituting argument. Paragraph 56: Rejected as subordinate to the facts actually found. Paragraph 57: Rejected as constituting a conclusion of law. Paragraphs 58-60: Rejected as subordinate to the facts actually found. Paragraph 61: Rejected as constituting argument. Paragraphs 62-63: Rejected as subordinate to the facts actually found. Paragraph 64: Rejected as constituting argument. Paragraphs 65-66: Rejected as subordinate to the facts actually found. Paragraphs 67-69: Rejected as recitation of testimony. Paragraph 70: Accepted in substance. Paragraph 71: Rejected as constituting argument. Paragraphs 72-74: Rejected as subordinate to the facts actually found. Paragraph 75: Accepted in substance. Paragraph 76: Rejected as constituting a conclusion of law. Paragraph 77-85: Rejected as subordinate to the facts actually found. Intervenor Eternal Light's Proposed Findings of Fact Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as not supported by the greater weight of the evidence. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraph 5: Rejected as not supported by the greater weight of the evidence. Paragraph 5 (second paragraph): Rejected as not supported by the greater weight of the evidence. Paragraph 6: Rejected as subordinate to the facts actually found. COPIES FURNISHED: William M. Furlow, Esquire Post Office Box 1877 Tallahassee, Florida 32302-1877 Bridget L. Ryan, Esquire Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Douglas L. Stowell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Alberto R. Cardenas, Esquire Ben J. Fernandez, Esquire 201 South Biscayne Boulevard Miami, Florida 33131 Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Room 1302 The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact Stipulated facts In their prehearing stipulation, the parties stipulated to the following facts: Our Lady of Mercy Catholic Cemetery in Dade and Our Lady Queen of Heaven Catholic Cemetery in Broward were both owned and operated or dedicated by the Catholic Church prior to June 23, 1976. The Petitioner does not own sufficient land contiguous to the present existing cemetery operations to allow expansion. The title to the cemeteries presently operating in both Broward and Dade to-wit Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is in Archbishop Edward A. McCarthy and the Catholic Cemeteries is the corporation in which the Archbishop is the sole member and this corporation was formed for the expressed purpose of operating the cemeteries. The alternate sites proposed by the Catholic Cemeteries to-wit Our Lady of Mercy South approximately 115 acres in size and Our Lady Queen of Heaven West approximately 115 acres in size were neither owned, operated nor dedicated by the Catholic Church prior to June 23, 1976. The petitioner wishes to develop those alternate parcels of land for cemetery opera- tions and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner. The existing Catholic cemeteries and the proposed alternate sites, if approved, will provide full at-need and pre-need cemetery products and services, including ground, urn and mausoleum burial, vault and memorial sales and installation, opening and closing, etc., as well as appropriate Catholic rituals, as required by church law and teaching. The approximate gross dollar sales of pre-need and at-need services and merchandise for 1989 was 4 1/2 million dollars. There is about a 10% increase in gross dollar sales for each succeeding year over the previous year. Members of the Catholic faith are buried in virtually every cemetery in Dade and Broward counties, except those that limit burials to members of a particular religious faith. Forest Lawn South is a licensed for profit cemetery located at 21401 Southwest 64th Street, Fort Lauderdale, Florida (305)792-9360, is approximately six (6) to seven (7) miles east of the proposed Broward County expansion and approximately nine (9) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Pinelawn Cemetery is a licensed for profit cemetery located at 13900 Southwest 117th Avenue, Miami, Florida (305)446-2922, is approximately five (5) miles east of the proposed Dade County expansion and approxi- mately ten (10) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Woodlawn Park South is a licensed for profit cemetery located at 11600 Southwest 112th Street, Miami, Florida (305)238-3672, is approximately five (5) miles northeast of the proposed Dade County expansion and approximately eleven (11) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. It costs a minimum of $459,647.00 annually to maintain the developed acreage at both Our Lady of Mercy Cemetery and Our Lady Queen of Heaven Cemetery. At the time of purchase of Our Lady of Mercy, the purchase was for 256 acres and in 1972, 128 acres were sold leaving a 128 acre cemetery of which 61 acres remain undeveloped. Our Lady Queen of Heaven Cemetery in Broward County was 120 acres in size of which 65 acres remain undeveloped. The approximate distance between the existing cemetery Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is approximately 20 miles. The distance between each of the existing cemeteries and the proposed alternate sites on a straight line is approx- imately 10 miles. The distance, driving by car, using the shortest reasonable route, is 17.5 miles between Our Lady of Mercy and the proposed South Dade site, and 16.3 miles between Our Lady Queen of Heaven and its proposed Davie (Broward) site. The Archdiocese of Miami covers all of Dade, Broward and Monroe Counties and the Archdiocese considers the area of service to cover the entire Archdiocese. The Archdiocese of Miami by and through its agent Catholic Cemeteries has not applied for a license for either of the proposed alternate sites. Lakeside Memorial Park, a private commercial cemetery restricted to Jewish burials is licensed by the Division of Finance, Department of Banking and Finance and is not operated, owned or controlled by any church or synagogue. Woodlawn Park, an old established private, commercial licensed cemetery in Miami, desired to expand to a separate location more than ten (10) miles away. A separate license to operate that extension cemetery known as Woodlawn South was issued. At the time of licensure of Woodlawn South, a separate corporation from Woodlawn Park, the majority of stock of both corporations was held by the Sharp family. However, the minority stockholders were different. The holding company owning Miami Memorial Park, Flagler Memorial Park and Dade Memorial Park was issued a separate license for its expansion cemetery known as Dade South Memorial Park. None of these cemeteries are owned, operated or controlled by churches or synagogues. There are existing, unlicensed church cemeteries which are exempt under Sec. 497.003, F.S. If such expansions of cemeteries grandfathered pursuant to Sec. 497.004, F.S., have occurred, the Department would not have required these expansions to obtain a license if such expansions were on contiguous property separated by no more than a road. However, it is the established and enforced policy of the Department of Banking and Finance, Division of Finance, to require separate application and proof of need for each proposed cemetery site which is not contiguous to an existing licensed cemetery. In determining need, the Department compares the number of available spaces with the projected burials over a thirty year period. The Memorial Sunset Park case is on appeal to the First District Court of Appeal (Tallahassee). The issue of whether there is a need for these alternate parcels pursuant to Sec. 497.006 is not an issue in this case. The Catholic Cemeteries has not applied for a license and, in fact, takes the position that it is a violation of the religion clauses to require it to apply for such an application and that its alternate parcels are exempt from regulation. Petitioner acknowledges that should Petitioner in the future file an application for license, thus requiring a showing of need, said proceeding will be a de novo hearing. Additional facts established at hearing. South Dade Palms Memorial Park in Dade County, which operates Palms Memorial Park, provides for the burial of persons of all faiths, including those of the Roman Catholic faith. The rites of the Roman Catholic Church are conducted both on the cemetery grounds and in the mausoleum chapel when appropriate. The cemetery has in the past and presently is accepting Roman Catholics for burial, and will continue to do so in the future. Memorial Sales, Inc., which operates Miami Memorial Park, Flagler Memorial Park, Dade Memorial Park, and Dade South Memorial Park (which is 9.5 driving miles from the Dade Alternate Parcel) provides for the burial of persons of all faiths, including those of the Roman Catholic faith. Each of these cemeteries has in the past and presently are accepting Roman Catholics for burial, and will continue to do so in the future. All rites of the Roman Catholic Church may be performed at graveside or at any structure available on the cemeteries for such purposes. The Department of Banking and Finance, through its Division of Finance, has inspected the cemeteries known as Our Lady of Mercy and Our Lady Queen of Heaven. The inspection revealed that the cemeteries are maintained in immaculate condition by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., possesses the only cemeteries in Dade and Broward Counties that exclusively furnish burial services to Catholics. Only persons of the Catholic faith and their families are buried in cemeteries operated by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., previously engaged an independent contractor, E.C. Wesner and Associates, Inc., of Margate, Florida, to sell pre- need cemetery burial rights and merchandise for the existing cemeteries operated by Petitioner. The authority and personal responsibility of Archbishop McCarthy for the Catholic Cemeteries are set by the Code of Canon Law, which is promulgated under the authority of the Pope. The Archbishop is personally charged with maintaining, under Church law, the appropriate norms on the discipline to be observed in cemeteries, especially with regard to protecting and fostering their sacred character. 3/ In the cemeteries operated by Catholic Cemeteries, Inc., religious services are frequently held at the grave sites, and all of the cemeteries have altars and religious shrines located throughout the cemetery grounds where members of the Catholic Church come to pray seven days a week. Additionally, the cemeteries celebrate Catholic Mass on the premises each year during Memorial Day and All Souls' Day and on other significant days in the liturgical life of the Catholic Church. Catholic Cemeteries, Inc., does not sell cemetery lots. Rather, Catholic Cemeteries, Inc., sells licenses for entombment. Because of the important role of the cemeteries in the Roman Catholic religion, the availability of those licenses is limited to Members of the Catholic Church and their family members. Pursuant to the Code of Canon Law, Catholic cemeteries are sacred places to be used for worship and burial of members of the Roman Catholic Church. Such services are conducted according to the official rites of the Church. The Catholic cemetery, like the parish church, is an important part of Catholic life and religious practice. Catholic Cemeteries, Inc., is a religious institution and constitutes an integral part of the religious mission of the Catholic Church. The religious practices and beliefs of Petitioner are of great importance to Petitioner and should be accorded the utmost respect. According to Guidelines for Funeral Rites in the Catholic Church (hereinafter "Guidelines"), "the preferred place for the burial of Catholics is a Catholic cemetery." However, there are at least four "circumstances [which] have for some time permitted burial of Catholics in a non-Catholic cemetery even where Catholic cemeteries are available. . . . Other circumstances of a pastoral nature [justifying the burial of Catholics in a non-Catholic cemetery] may exist in various areas of the country." Accordingly, it is not impermissible for Catholics to be buried in non-Catholic cemeteries, provided the individual grave site has been appropriately blessed. This flexibility by the Catholic Church in accommodating parishioners is evidenced by the stipulated fact that members of the Catholic faith are buried in virtually every cemetery in Dade and Broward Counties, except those that limit burials to members of a particular religious faith. The Petitioner has previously attempted to challenge the constitutionality of Chapter 497, Florida Statutes, in a federal court proceeding. That challenge was dismissed for lack of standing.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Declaratory Statement on the grounds that the issues raised by the petition are inappropriate for disposition in a declaratory statement proceeding under Section 120.565, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of October 1991. MICHAEL M. PARRISH 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 14th day of October 1991.
Findings Of Fact James E. Collison is a licensed embalmer and funeral director, and Collison Memorial Chapel, Ltd., is a licensed funeral home holding licenses issued by the Board of Funeral Directors and Embalmers. Orange County Memorial Society (OCMS) is a nonprofit corporation. OCMS exists for the purpose for providing information and assistance to its members on low-cost funeral arrangements. OCMS has approximately 750 members and is funded through their small initial membership or transfer fee. Thomas E. White, who is employed full-time as an engineer by Stromberg Carlson was president of OCMS at all times relevant to this complaint. His wife, Helen, was secretary of this organization. At the time White assumed the presidency of OCMS, OCMS had existing arrangements with two local funeral homes. Upon joining, members were assigned to one or the other of these establishments, based upon the members' geographical residential location. Both the establishments provided the same services at essentially the same prices. Prices for various services from these homes had been made available to the members of OCMS. Mr. White was concerned about the geographic assignment of OCMS members and desired to alter this arrangement and allow members to choose the funeral home which they desired. In approximately August of 1976, James Collison contacted Mr. Harris, the attorney for OCMS, one of the original incorporators, and a former president of the organization. Collison advised Harris that he desired to participate with OCMS in providing services to its members. Mr. Harris wrote Mr. White, who eventually contacted Collison to discuss Collison Memorial Chapel's participation. In this regard, Collison provided Mr. White a list of funeral services which Collison Memorial Chapel could provide together with cost in a letter dated September 4, 1976. Mr. White and another member of the Board visited with Collison and inspected Collison Memorial Chapel. Thereafter Mr. White presented Collison's proposal to the Board of Directors of OCMS. Collison's offer was accepted, and this fact was subsequently communicated to Collison by White. At this time, Collison was advised that OCMS would advise its members of Collison Memorial Chapel's participation by letter when the notice of the organization's annual membership meeting was mailed. An earlier mailing could not be made by OCMS due to a lack of funds. Collison desired to make Collison Memorial Chapel's participation immediately known to the membership of OCMS, and offered to White to pay for the additional mailing. Mr. White accepted this offer, feeling that this was in the best interest of the membership of OCMS and permitted earlier implementation of his plan to permit members to choose the funeral home with which they desired to make their arrangements. The mailing was handled solely by White and his wife, and at all times, OCMS, through its president, maintained total control of the content of the materials sent to its members. This mailing contained a letter from Mr. White to the members, a comparative list of services and prices offered by the three participating funeral homes, a stamped, self-addressed envelope to Collison Memorial Chapel, and a form indicating that members desired to change his or her selection of a funeral home to Collison Memorial Chapel. The letter to the members was composed by Mr. White. The comparison of services and prices was prepared by Collison at Mr. White's request. The change form was prepared by Collison; however, both Mr. and Mrs. White stated that they had made some minor changes in its format after they received Collison's draft copy. White, in response to the specific question regarding why the form had not been prepared to permit a member to change between the two other participating funeral homes, stated that he had not mailed the form in that format because he did not believe any of the members would elect to change their membership among the two original participating homes. The fact that Collison obviously wanted communicated to the OCMS members was the fact that his funeral home was participating with OCMS because the prices which were quoted to OCMS members were the same being advertised to the public generally. White, as president of OCMS, desired to implement his project of permitting freedom of selection among members of OCMS, and to advise members that Collison's funeral home was now a participating home. Collison's offer was a means to both White's and Collison's objections. The Whites had the material printed, prepared the mailing, and sent Collison a statement of cost of the mailing. Collison paid these costs in the amount of $191.87 directly to OCMS. As a result of this mailing, approximately thirty (30) of the 750 members elected to change their arrangements in favor of Collison Memorial Chapel, Ltd. Several others elected to make other changes by contacting White and having new forms sent to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against James E. Collison and Collison Memorial Chapel, Ltd. be dismissed. DONE and ORDERED this 1st day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: W. Thomas Lovett, Esquire Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801 Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202 Mr. R. C. Blanton, Coordinator Funeral Directors and Embalmers Suite 208, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The issues in this proceeding are whether Emerald Coast Funeral Home (Emerald Coast) and Jeffrey Kevin Watts (Watts) failed to treat remains with dignity and respect in violation of Section 497.386(4), Florida Statutes, and whether Emerald Coast was required by Section 497.380(12)(a), Florida Statutes, to submit a change of ownership application.
Findings Of Fact Emerald Coast has been licensed to operate a Funeral Establishment in the state of Florida and as an Apprentice- Intern Training Agency since May 4, 1998, holding license numbers FO41292-2600-01 and FO41292—2200-01. In 1997, Carriage Services of Florida, Inc., acquired Emerald Coast Funeral Home from Forest Lawn/Evergreen Management Corporation. Emerald Coast is a fictitious name registered with the Florida Department of State, Division of Corporations, to Carriage Funeral Holdings, Inc. Also in 1997, Carriage Funeral Holdings, Inc., became the indirect owner of Emerald Coast through issuance of all the shares of common stock of Carriage Services of Florida. In 1998, shortly after the merger, Emerald Coast filed a change of ownership application with the Board of Funeral Directors & Embalmers. Unfortunately, the application contains a scrivener’s error that erroneously reflects “Carriage Funeral Services of Florida” as the owner of Emerald Coast instead of Carriage Services of Florida, Inc. However, the attachments to Emerald Coast’s application properly identify Carriage Services of Florida, Inc., as the direct owner of Emerald Coast, and Respondent’s records reflected Carriage Services of Florida as the owner. Additionally, at the time Emerald Coast’s application was filed, one of the attachments reflected that Carriage Services, Inc., was the sole shareholder of Carriage Services of Florida, Inc. However, as indicated, since 1997, Carriage Funeral Holdings, Inc., has owned all the common stock of Carriage Services of Florida, Inc., and is the ultimate owner of Emerald Coast. In 2000, Carriage Services of Florida, Inc. merged into Carriage Cemetery Services, Inc., a Texas corporation authorized to do business in the State of Florida. Under the Articles of Merger, Carriage Services of Florida and Carriage Cemetery as the constituent corporations merged into the surviving corporation Carriage Cemetery Services. Carriage Services ceased to exist and, by the terms of the merger, Carriage Services shares of stock were cancelled. The official records of the Department of State do not contain any corporate annual reports for Carriage Services after 1999. The official records of the Department of State do contain required corporate annual reports for Carriage Cemetery up through 2009. There was no evidence regarding the relationship between Carriage Holdings and Carriage Cemetery. However, all three corporations appear to be owned by the same individuals, but are legally separate entities. As separate entities, the merger of Carriage Services with Carriage Cemetery technically caused a change of ownership of Emerald Coast to occur at the time of the merger, since Carriage Services ceased to exist. At that point, the new owner should have notified the Department of the change in ownership. Emerald Coast did not file such a notification. There was no evidence that Emerald Coast intentionally elected not to notify the Department regarding its change in ownership or that it was trying to hide such change. As indicated, the people at Emerald Coast’s corporate headquarters remained the same, even though the technical corporate entity changed. However, the failure to notify the Department about the change in ownership is a violation of Florida law, albeit a very minor violation, easily corrected by filing the correct paperwork with the Department. Except for failing to notify the Department, no other violation of Florida law was shown by the evidence, since the funeral establishment is the licensed entity under Florida law and Emerald Coast, as the licensed funeral establishment, had a valid license to operate as such. Given these facts, Emerald Coast is guilty of violating Section 497.380(12)(a), Florida Statutes. All other statutory violations alleged in Count II of the Administrative Complaint should be dismissed. Jeffrey Kevin Watts has been a licensed Funeral Director and Embalmer for approximately 20 years holding license number FO47717. In 2008, he was the funeral director for Emerald Coast. In February of 2008, the family of decedent B.C. hired Emerald Coast to provide funeral services. Those services included embalming B.C.’s body for viewing and cremation. To enable Emerald Coast to prepare B.C.’s body for viewing, B.C.’s husband executed a written Embalming Authorization. The written Authorization authorized Emerald Coast to care for and prepare for disposition of B.C. in accordance with its customary practices. Additionally, B.C.’s family provided Emerald Coast with a photograph of B.C. in life. The purpose of the photograph was to enable Emerald Coast to prepare B.C.’s body for viewing by her friends and family. In fact, the goal of the embalming process was to restore B.C. to as natural state as possible towards which the picture served as the standard. Importantly, B.C.’s tongue did not protrude between her teeth and out of her mouth while she was alive. Thus, the goal was to prepare B.C.’s body so that her mouth would close normally and she would resemble the photograph provided by her husband. In order to prepare a body for viewing, the body of the deceased must be embalmed. Embalming is a restorative art and always involves removing fluid and tissue from the body and replacing the same with embalming fluid. The evidence demonstrated that it is standard practice for some tissue to be removed and discarded down the drain and some tissue to be removed and discarded in a biomedical waste container at the funeral home. The condition of the body at the time of death determines how much tissue must be removed from a decedent’s remains in order to restore the exterior features of that person to its natural appearance. On February 15, 2008, Mr. Watts embalmed the body of B.C. in preparation for its viewing on February 17, 2008. During the embalming process, B.C.’s tongue became swollen. Such swelling is not a frequent occurrence of the embalming process; but it is always a possibility due to the nature of the embalming fluid used to embalm a decedent’s body. In this case, the swelling caused B.C.’s tongue to protrude from her mouth and disfigure her appearance. The decedent’s tongue protruded approximately a quarter of an inch beyond her upper and lower front teeth and prevented the mouth from being closed. The disfigurement would not have allowed B.C. to be viewed with a normal appearance since her tongue would have protruded from her mouth. To reduce the swollen tongue, Mr. Watts first tried to put the tongue back into B.C.’s mouth using firm digital pressure. The pressure was unsuccessful. He also tried to roll decedent’s tongue back into her mouth and reduce the swelling using a series of forceps and clamps. Mr. Watts also attempted to reduce the swelling in decedent’s tongue using a hot towel. These procedures were also unsuccessful and did not improve B.C.’s appearance. Mr. Watts then attempted to suture the inside of B.C.’s upper and lower lip area. However, the sutures did not keep B.C.’s tongue from protruding out of her mouth and did not restore a natural appearance to B.C.’s remains. Next, Mr. Watts tried to put cardboard into B.C.’s mouth to create a barrier that would hold the tongue back. The cardboard was unsuccessful. He also used a syringe to try to remove the fluid from B.C.’s tongue. Again, the attempt was unsuccessful and B.C.’s tongue continued to protrude past her teeth. After all these methods failed to restore B.C. to a natural appearance, Mr. Watts consulted his supervisor, Chuck Jordan, regarding the swelling in the decedent’s tongue. Like Mr. Watts, Mr. Jordan tried to reduce the swelling in the B.C.’s tongue and to force it back into position. Importantly, all of the methods used by Mr. Watts and Mr. Jordan are standard practices in the embalming industry. In fact, the process and practices followed by both men are recognized as appropriate practices to restore a body’s natural appearance. As a last resort, Mr. Jordan and Mr. Watts agreed that excision of the protruding portion of the tongue was the only procedure that would restore B.C.’s natural appearance. Mr. Jordan authorized Mr. Watts to excise the protruding portion of B.C.’s tongue. Again, excision of the tongue, or a portion thereof, in cases such as the one here is an accepted and customary embalming practice specifically recognized by the industry and is addressed in the textbook used by all 49 of the colleges of mortuary science in the United States – Embalming: History, Theory and Practice by Robert G. Mayer – as a proper method of last resort in restoring a body to its natural appearance. Thereafter, Mr. Watts excised the protruding portion of B.C.’s tongue by tracing over the upper and lower teeth with a scalpel. This procedure resulted in the excision of a piece of waste tissue that measured approximately a quarter of an inch wide by an inch and a quarter long. He did not remove a body part from B.C.’s body since B.C.’s tongue remained with her body. After removal, Mr. Watts placed the excised tissue in the biomedical waste container in the preparation room. Such a receptacle is the appropriate container in which to dispose of waste tissue. Indeed, the better expert evidence demonstrated that disposal of such waste tissue as biomedical waste is appropriate and is standard practice in the industry. There was no clear and convincing evidence that demonstrated disposal of waste tissue, like the tissue in this case, was disrespectful or an undignified handling of a person’s remains especially since standard mortuary practice recognizes such disposal as appropriate. Moreover, there was no clear or convincing evidence that the excised portion of B.C.’s tongue constituted human remains since they were no longer part of the decedent’s body. In February of 2008, Kirk Kahler was a licensed embalmer’s apprentice working for Emerald Coast under the supervision of Mr. Watts. As the supervising embalmer, Mr. Watts was responsible to teach and instruct Mr. Kahler. On February, 17, 2008, Mr. Watts discussed the excision of the protruding portions of B.C.’s tongue with Mr. Kahler. Mr. Watts discussed the issues with B.C.’s tongue because the methods and processes he used to resolve the protruding tongue do not occur frequently; but, do occur during the embalming process. It was an opportunity for Mr. Kahler to learn about an infrequent occurrence in the embalming industry. While Mr. Watts was checking the point of excision to ensure there would be no fluid leaks from the area, Mr. Kahler asked Mr. Watts where the excised tissue was and how much had been removed. Mr. Watts informed Mr. Kahler the tissue was in the biomedical waste receptacle and removed it to show Mr. Kahler the amount of tissue removed. In order to show the tongue to Mr. Kahler, Mr. Watts held the tongue up. Mr. Kahler testified that Mr. Watts held the tongue up “like a trophy fish.” Mr. Watts denied such an action or that he demonstrated a “trophy fish” attitude. Such a personal opinion by Mr. Kahler about another person’s attitude or thoughts is neither clear nor convincing evidence that Mr. Watts treated B.C.’s tongue in an undignified manner. After showing Mr. Kahler the excised tissue, Mr. Watts placed the tissue back into the biomedical waste container. Later that day, without Emerald Coast’s consent, Mr. Kahler removed the excised tissue from the biomedical waste container, placed it in an envelope, and kept it in his mailbox at Emerald Coast. Mr. Kahler, whose rationale is somewhat suspect in this case, testified that he took the tissue because he was outraged by Mr. Watts’ handling of the tissue, thought the family should have been advised about the excision of the tissue, and thought the waste tissue should have been cremated with B.C.’s body. His desire was to preserve the tissue as evidence. The family of B.C. held her viewing and service on February, 17, 2008. On February 21, 2008, Mr. Kahler transported B.C.’s body to the crematorium where she was cremated. Even though Mr. Kahler professed concern for the family and felt that the excised tissue should have been placed with the body, Mr. Kahler neither advised the family about the excised tissue, nor placed the excised tissue with the body even though he had the opportunity to do so. Later, after his resignation from Emerald Coast in the middle of March, 2008, Mr. Kahler took the envelope home with him and kept it on his kitchen counter for approximately 45 days. On March 21, 2008, Mr. Kahler emailed the corporate headquarters of Emerald Coast regarding “the removal of a large portion of tongue,” from a decedent’s body. The email also voices other concerns about the management of Emerald Coast. Mr. Kahler again emailed corporate headquarters to advise that he had the “referenced tongue.” He communicated the same message about his possession of “the tongue” to corporate headquarters again on March 30, 2008. At some point, Emerald Coast’s corporate headquarters contacted its attorney regarding Mr. Kahler’s removal and possession of excised tissue from Emerald Coast. On April 29, 2008, the attorney wrote Mr. Kahler a letter demanding that he return the tissue to Emerald Coast by a specific date and time. The attorney advised that if Mr. Kahler did not return the tissue, Carriage would file a civil suit against Mr. Kahler. The letter does not constitute an admission by Respondents that the excised portion of B.C.’s tongue meets the definition of remains contained in Chapter 497, Florida Statutes. On April 30, 2008, Mr. Kahler responded that he would return the tongue to the family since he felt it “technically” belonged to them. He also stated that he would “contact his friends at the local newspaper.” That same day, Mr. Kahler asked that Petitioner contact him about the “illegal removal of body parts.” At that time, Mr. Kahler had the excised tissue in his possession for 70 days. An investigator for the Department met with Mr. Kahler and advised him to return the tissue to Emerald Coast so that it could be disposed of properly. Shortly after that meeting, Mr. Kahler returned the tissue to Emerald Coast. However, the evidence was neither clear nor convincing that either Emerald Coast or Mr. Watts treated B.C.’s remains in an undignified or disrespectful manner. The procedures they used to restore B.C. to a natural appearance were standard procedures. The disposal of the waste tissue from that restorative process was likewise standard. Similarly, there was no clear or convincing evidence that demonstrated Mr. Watts treated B.C.’s remains in an undignified or disrespectful manner. Mr. Kahler’s opinion is simply insufficient to demonstrate that either Respondent violated Florida law regarding the treatment of human remains. Based on these facts, the Count I of the Administrative Complaint filed against Emerald Coast should be dismissed. Similarly, the Administrative Complaint against Mr. Watts should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered dismissing the Administrative Complaint filed against Jeffrey Kevin Watts and dismissing Count I of the Administrative Complaint filed against Emerald Coast. It is further RECOMMENDED that a final order be entered finding Emerald Coast guilty of violating Sections 497.380(12)(a) and 497.152(1)(a), Florida Statutes, and issuing a letter of reprimand for such violation. DONE AND ENTERED this 5th day of October, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of October, 2009. COPIES FURNISHED: Thomas A. David, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Derek E. Leon, Esquire Christopher J.M. Collings, Esquire Morgan, Lewis & Bockius, LLC 5300 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2399 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
