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)
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.
Findings Of Fact On or about June 7, 1979, Petitioner filed with the Department an application together with the required fee, for authority to transfer a cemetery company in St. Petersburg, Florida. The name of the cemetery company sought to be transferred is Royal Palm of St. Petersburg, Inc. A notice of receipt of the application was filed and published in the Florida Administrative Weekly, Volume 5, No. 24, on June 15, 1979. Thereafter, Respondents filed an objection to the granting of the requested transfer. Those Respondents who objected to the granting of the transfer were George E. Feaster, d/b/a Feaster Memorial Homes; Gerald B. Hubbell, d/b/a Hubbell Funeral Home; R. Lee Williams, d/b/a R. Lee Williams Funeral Home; J. Fred Bobbitt, d/b/a Bobbitt Funeral Chapel; A. Bruce Cloud, d/b/a Osgood Cloud Funeral Home; Fred H. Kenfield, d/b/a Fred H. Kenfield Funeral Home; C. James Mathews, d/b/a C. James Mathews Funeral Home; Edmund E. Thurston, d/b/a Wilhelm-Thurston Funeral Home; William J. Rhodes, d/b/a John S. Rhodes, Inc.; Donald I. Dyer, d/b/a The Palms Memorial; Patrick M. McGriff, d/b/a McGriff Funeral Chapel; David A. Dane, d/b/a R. Lee Williams Funeral Home; Lewis W. Mohn, d/b/a Lewis W. Mohn Funeral Home; Alan R. McLeod, d/b/a Alan R. McLeod Funeral Home; William F. McQueen, d/b/a Anderson-McQueen Funeral Home; Mrs. Letha F. Rhodes; Richard H. Fairfield; Betty W. Wilhelm; Timothy T. Brett and Terry Brett, d/b/a Thomas J. Brett Funeral Home; and William B. Gee and Edgar E. Pitts, d/b/a Gee & Pitts Funeral Home. Counsel for all parties stipulated at the final hearing that all Respondents objecting to the transfer are persons whose substantial interests would be affected by this proceeding within the meaning of Chapter 120, Florida Statutes. Respondents contend generally that Petitioner does not meet the statutory requirements contained in Section 559.34, Florida Statutes, for approval of the requested transfer. Petitioner is currently licensed as a cemetery owner in the State of Florida. Petitioner is presently the sole stockholder, president and chief operating officer of Florida Memorial Cemetery, Inc. In addition, Petitioner has previously owned three other cemeteries in Florida and currently owns a cemetery in Tennessee. Petitioner has been engaged in the cemetery business for more than 19 years, the last seven of which have been in the State of Florida. He has been licensed as a cemetery owner in the State of Florida since 1975. Petitioner's prior experience in the cemetery business includes all phases of cemetery operation from salesman to owner. In August of 1975, Petitioner purchased Florida Memorial Cemetery, Inc. At the time of purchase, Petitioner believed that he was assuming liabilities arising from the business activities of the corporation prior to purchase in the following amounts and for the following reasons: $250,000 to provide merchandise for contracts sold prior to 1972 when the Merchandise Trust Fund Law became effective. $150,000 to the Perpetual Care Trust Fund and the Merchandise Trust Fund attributable to sales made by Petitioner's predecessor in interest but not required to be funded at the time Petitioner purchases the corporation. $140,000 to build a mausoleum which the Petitioner's predecessor in interest had obligated the corporation to build. Accordingly, Petitioner was led to believe that outstanding liabilities of Florida Memorial Cemetery, Inc., at the time of purchase totaled $540,000. However, upon an audit conducted by the Department some time after purchase, Petitioner was made aware that the $150,000 pre-1972 obligation referred to above, was, in fact, approximately $350,000. This misunderstanding was due, at least in part, to Petitioner's failure to audit the books and records of Florida Memorial Cemetery, Inc., prior to purchase. It should be noted here that Petitioner had served as general manager of Florida Memorial Cemetery, Inc., from January 1973 until the time he purchased the corporation in August 1975. Cemetery companies selling burial rights and personal property or services on a pre-need basis are required to maintain percentages of those payments received on a pre-need basis in trust. Funds received from the sale of burial rights are maintained in a fund commonly referred to as the Care and Maintenance Trust Fund. Funds received from the sale of personal property or services are maintained in a fund commonly known as the Merchandise Trust Fund. Counsel for all parties stipulated at the hearing that Florida Memorial Cemetery, Inc., failed to timely deposit trust funds required by Florida law in the following amounts for the following audit periods: From January 1, 1976 to June 30, 1976, the Merchandise Trust Fund was deficient in the amount of $5,051.51. From July 1, 1976 to June 30, 1977, the care and Maintenance Trust Fund was deficient in the amount of $7,076.59, and the Merchandise Trust Fund was deficient in the amount of $17,773.23. From July 1, 1977 to June 30, 1978, the Care and Maintenance Trust Fund was delinquent in the amount of $26,068.60, and the Merchandise Trust Fund was deficient in the amount of $64,693.29. From July 1, 1978 to November 30, 1978, the Care and Maintenance Trust Fund was deficient in the amount of $12,317.20, and the Merchandise Trust Fund was deficient in the amount of $29,457.62. From December 1, 1978 through May 1, 1979, the Care and Maintenance Trust Fund was deficient in the amount of $14,827.82, and the Merchandise Trust Fund was deficient in the amount of $33,355.36. All deficits in the two trust funds described above were brought current within thirty days of notification from the Department. In addition, Florida Memorial Cemetery, Inc., has timely made its trust fund deposits since August 1, 1979, and was, at the time of final hearing in this cause, current on deposits to those trust funds. However, at the time the above-described deficits occurred, Petitioner at all times knew of their existence, knew that deposits into the trust accounts were required to be paid on a monthly basis, and made a business decision not to fund those trust accounts in order to use those funds to meet other obligations of the corporation. These obligations included the construction of a mausoleum which his predecessor in title had obligated the corporation to build, and the necessity for the corporation to purchase new merchandise. At the time the deficits in the two trust accounts existed at Florida Memorial Cemetery, Inc., Petitioner was actively engaged in other business pursuits. Petitioner and another investor purchased three other cemeteries in 1976, and borrowed approximately $75,000 to bring the trust funds of those cemeteries current. These cemeteries were later sold by Petitioner and his co- investors. In addition, in 1978 Petitioner created Florida Cemetery Products, Inc., a company engaged in the manufacture of fiberglass vaults. Petitioner invested $25,000 in this company at the time of its creation. In December 1978 or January 1979, Petitioner formed Florida Memorial Mortuary with an initial investment of $25,000. Finally, in June 1979 Florida Memorial Cemetery, Inc., purchased from Petitioner approximately five acres of land at a purchase price of $200,000, $30,000 of which purchase price was paid in cash to Petitioner. Further, during 1979 Florida Memorial Cemetery, Inc., expended $20,000 to $25,000 for the purchase of statues to be placed on the grounds of the cemetery. All these investment activities were conducted at a time when Petitioner knew of the existence of deficits in the various trusts required to be maintained by Florida Memorial Cemetery, Inc. Since Petitioner took over ownership of Florida Memorial Cemetery, Inc., the amount spent on maintaining the cemetery has more than doubled, new features have been added, more cemetery land has been obtained (a portion of which, as indicated above, was purchased by the corporation from Petitioner), roads have been improved, and the number of ground personnel maintaining the cemetery has been doubled. The current cost of maintaining Florida Memorial Cemetery, Inc., is approximately $80,000 to $90,000 per year. Income on the Care and Maintenance Trust Fund from the cemetery is approximately $30,000 to $40,000 per year, which sum is applied toward maintenance expenses. In the application form required to be filed with the Department in order to obtain authority to transfer an existing cemetery company, there is contained a series of questions. One of the questions inquires as to whether the applicant or any company with which he has been associated as an officer or member has ever been declared bankrupt. On the application form Petitioner answered this question in the negative. However, at final hearing in this cause, Petitioner admitted that he had filed for personal bankruptcy, and had been adjudicated a bankrupt in Tennessee in 1966. In explaining his failure to truthfully answer the Department's inquiry in this regard, Petitioner indicated that that period had been a particularly difficult one in his life, and that he had "wanted to put the past behind me." Another question on the application form inquired as to whether Petitioner had any judgments against him. Petitioner answered this question in the negative. At final hearing in this cause, however, Petitioner testified that he had been contacted by a collection agency or a credit bureau some time in 1973 concerning judgments outstanding in Iowa resulting from the operation of a company called "Midwest Sales." Petitioner takes the position that these judgments, copies of which were not introduced into evidence in this record, were not valid against him because personal service of process on him had not been obtained, and the judgments were for debts of "Midwest Sales." It is, however, clear that Petitioner knew of the existence of some dispute in this connection, and that some judgments might be outstanding against him, but failed to divulge their existence on his application form. Petitioner did not include with his application filed with the Department a map showing land platted for burials in the cemetery which he seeks to acquire. The owners of Royal Palm of St. Petersburg, Inc., the cemetery of which Petitioner seeks to obtain ownership, wish to sell the cemetery to Petitioner. The owners of the cemetery are not actively involved in its management, but receive frequent complaints concerning the maintenance and upkeep of the cemetery. Petitioner has apparently made plans to make capital improvements to and upgrade the maintenance of the cemetery if his application is approved. An unaudited financial statement received into evidence at the final hearing in this cause upon Petitioner's swearing to its accuracy indicates that Petitioner and his wife possessed a net worth of $457,000 as of September 30, 1979. An earlier unaudited financial statement submitted by Petitioner to the Department with the filing of his application indicated the net worth of Petitioner and his wife was $1,616,500 as of December 31, 1978. The earlier financial statement was not sworn as required by the Department's rules. It should also be noted here that Petitioner's wife is not a party to the application here under consideration. The parties to this proceeding submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued by the Department of Banking and Finance denying the application of Gene S. Crowe for authority to purchase and acquire control of Royal Palm of St. Petersburg, Inc. RECOMMENDED this 28th day of December 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1979. COPIES FURNISHED: Philip F. Nohrr, Esquire Post Office Box 369 Melbourne, Florida 32901 Laura Bamond, Esquire Office of the Comptroller 1313 Tampa Street Tampa, Florida 33602 Douglas L. Stowell, Esquire Barnett Bank Building Suite 710 Post Office Box 1019 Tallahassee, Florida 32302
Findings Of Fact Dale Woodward, the Respondent, holds Funeral Director's License No. 671 and Embalmer's License No. 536 at the present time, and during the times pertinent to 1978 and January through 1979. The Respondent Dale Woodward is the owner of the Dale Woodward Funeral Home of Holly Hill, Florida. The Dale Woodward Funeral Home holds an establishment operating License No. 123. During all times relevant to the allegations in the complaint, Ricky Charles Vyse and Richard G. McCafferty were employees of Dale Woodward and the Dale Woodward Funeral Home. In early 1978, one Howard McMurray made arrangements with Dale Woodward for his own funeral seven to eight months prior to his death. Mr. McMurray stated that he would prefer to have his funeral similar to that of his wife, which arrangements had earlier been handled by the Dale Woodward Funeral Home. On December 19, 1978, Howard McMurray passed away and his body was delivered to the Dale Woodward Funeral Home. On the morning of December 20, Violet Eggleston, his executrix, and her husband Raymond, came to the funeral home. Mrs. Eggleston was met by Mr. Woodward and Mr. McCafferty and introduced to Mr. McCafferty by Mr. Woodward. Although Mrs. Eggleston stated in her deposition (Exhibit 12) that she did not meet Mr. Woodward upon coming into the funeral home, she did state that he might have been painting or hanging wallpaper and that she would not have recognized him with painting clothes on and in fact Mr. Woodward's testimony establishes that he was painting the funeral home that day and was dressed in old clothes and his presence at the funeral home on that morning is corroborated by Mrs. Eggleston's later statement that Mr. Woodward introduced her to Mr. McCafferty at the time they began to discuss funeral arrangements. Mr. McCafferty was introduced to Mrs. Eggleston and obtained some information for the preparation of death certificates as well as for Mrs. Eggleston's desires regarding arrangements for funeral services. Mr. McCafferty also assisted Mrs. Eggleston on behalf of the family in making funeral selections from the Respondent's stock of caskets and urns. Mrs. Eggleston was not the person considered in sole charge of arranging for Mr. McMurray's funeral in that she was not the next of kin, rather the deceased's daughter Diana Keeley apparently had some responsibility in arranging for the funeral, although Mrs. Eggleston was primarily responsible for making the subject arrangements and indeed paid for the Respondent's services herself. Mr. McCafferty did not complete a sale of a casket or urn to Mrs. Eggleston, although she did select a salix casket that day. These preliminary negotiations and discussions of the funeral arrangements and the obtaining of a casket engaged in by Mr. McCafferty with Mrs. Eggleston were at the direction of Respondent Dale Woodward, the subject licensed funeral director, and Mr. McCafferty himself was not present at the funeral. On or about December 22, 1978, the same day, Mrs. Eggleston signed an authorization for the cremation of the body of Howard McMurray and he was subsequently cremated at the Cedar Hill Crematory in Daytona Beach, Florida. The body was removed from the casket in which it had been placed for viewing and was cremated in a cardboard cremation container, The value of that cremation container or the sales price, was substantially less than that of the $865 casket. Neither Mrs. Eggleston nor Diana Keeley, the decedent's daughter, ever gave any written instructions regarding the manner of cremation of the body of Howard McMurray as to the container which should be used, nor does the record reflect that any written instructions or understandings passed between these two ladies and Mr. Woodward or his employees. Mrs. Eggleston's instructions regarding the cremation were verbal and made no provision for the type container to be used in the cremation process. Ricky Charles Vyse was employed by the Dale Woodward Funeral Home on or about June, 1978. At that time, and at times subsequent thereto, he represented that he was qualified to embalm human bodies as an apprentice or intern embalmer in that he had submitted papers registering him for such internship to the Florida Board of Funeral Directors. Dale Woodward and Dale Woodward Funeral Home believed and relied upon that representation, thus permitting Ricky Vyse to assist or participate in embalming procedures. The Respondent Dale Woodward supervised any embalming procedures in which Ricky Vyse participated. Particularly, Dale Woodward did virtually all cosmetic work, including that in the cases involving the decedent, Howard McMurray, as well as with regard to the funeral and embalming of Mary Salvonge. Further, evidence adduced at the hearing revealed that Ricky Vyse had never actually been registered as an intern embalmer with the Board of Funeral Directors and the testimony of four of Respondent's witnesses revealed that Ricky Vyse had been detected on a number of occasions stealing office records and various items of property from the funeral home, including an embalming machine, a Beethoven bust, a desk globe, and other items. After repeated warnings, the Respondent Dale Woodward through his employees Franklin Muffley and Richard McCafferty terminated Ricky Vyse's employment. It was evident from the demeanor of Ricky Vyse on the witness stand that he was a disgruntled employee and hostile former employee of the Respondents, and that be approached the State Attorney in January, 1979 with accusations against Dale Woodward and the Dale Woodward Funeral Home involving violations such as those involved herein. The record reflects that no prosecution was initiated by the State Attorney's office. Franklin Muffley is the internal auditor and bookkeeper for the Dale Woodward Funeral Home. As such he is responsible for the billing in cases such as the McMurray case. It is his practice and custom to gather all figures and data regarding funeral arrangements, verify them and routinely mail a statement within approximately two weeks following a funeral service. In the McMurray case however, the executrix, Mrs. Eggleston, made payment on the day the funeral arrangements were made before any written itemization for funeral services to be rendered was finalized or verified by Muffley. As a result, after having been shown the salix casket priced at $865, she proceeded to pay for the casket, as well as for the other arrangements for a total of $1,785. The record is not clear whether Franklin Muffley or Richard McCafferty who were privy to the discussions of arrangements and price with Mrs. Eggleston that morning knew that the decedent would be cremated in a cardboard container. Dale Woodward, the Respondent in this case, did not learn of the fact that Mrs. Eggleston had been billed for the casket which was not used in the ultimate disposition of the body of Mr. McMurray until approximately three months later, in about March of 1979, when, as it was his regular custom and practice, he instituted his quarterly review of his business's billing and receipts. Having been closely acquainted with the McMurray family and being aware of the arrangements Mrs. Eggleston had requested for Mr. McMurray's funeral (i.e., cremation), Mr. Woodward detected an error in billing due to the charge for the casket which was not ultimately used except for display purposes. Mr. Woodward thereupon immediately made a refund to Mrs. Eggleston of $805 representing the price charged her for the casket less the $60 charge legitimately due and owing for the cardboard cremation container. Dale Woodward and Dale Woodward Funeral Home have been in operation and licensed approximately 25 years and have never been the subject of such complaints and charges heretofore. The Respondents Dale Woodward and Dale Woodward Funeral Home, as established by the four "character witnesses," enjoy a good reputation for truth and veracity in the community
Recommendation Based on the foregoing, it is, therefore: RECOMMENDED that the Department of Banking and Finance, Office of Comptroller, enter a Final Order herein dismissing with prejudice Petitioners' Petition For Formal Hearing and issuing approval to Gibraltar Mausoleum, Inc., to acquire ownership of Mansion Memorial Park, Inc., RECOMMENDED this 7th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4097 Rulings on proposed findings of fact submitted by Petitioner: Paragraph 1 is accepted as addressed in finding of fact paragraphs 4 and 17. Paragraph 2 is accepted to the facts set forth but is insufficient, as a matter of law, to establish a violation. Paragraph 3 is accepted. Paragraph 4 is rejected as commentary or argument without an appropriate factual basis. Paragraph 5 is accepted as to the facts. Paragraph 6 is accepted as to facts but, again, as a matter of law, is insufficient. Paragraph 7 is rejected for the reasons explained in the conclusions of law. Paragraph 8 is rejected as argumentative. Paragraph 9 is rejected as contrary to the evidence presented. 10. Paragraph 10 is accepted to the extent the parties agree the window exists. Rulings on Respondent's proposed findings of fact: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the evidence presented. Paragraph 3 is accepted. Paragraph 4 is rejected as contrary to the weight of the evidence presented. Paragraph 5 is accepted. Paragraph 6 is rejected as contrary to the weight of the evidence presented. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is rejected as contrary to the weight of evidence presented. Paragraph 10 is accepted. Paragraph 11 is accepted. COPIES FURNISHED: Bruce Culpepper, Esquire Haben & Culpepper, P. A. Post Office Box 10095 Tallahassee, Florida 32302 Douglas L. Stowell, Esquire 315 S. Calhoun Street, Suite 350 Tallahassee, Florida 32301 Paul C. Stadler, Jr., Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 William W. Byrd, Esquire Park Trammel Bldg., Suite 614 1313 Tampa Street, Tampa, Florida 33602-3394
Findings Of Fact Manasota Memorial Park is a large cemetery licensed under Chapter 497, Florida Statutes, by the Department of Banking and Finance, as a "cemetery." It is also licensed under Chapter 470, Florida Statutes, by the Department of Professional Regulation, as a "direct deposer". It is licensed by the Department of Insurance, pursuant to Chapter 639, Florida Statutes, to sell "pre-need" funeral merchandise or service contracts. Manasota has specifically reserved the right to adopt, alter, amend or repeal any of its by-laws, with or without notice to the owners of burial spaces in its cemetery. This reservation is found in paragraph 63, page 14 of Manasota's current by-laws, in evidence. Manasota has, however, agreed to prepare and distribute an updated compilation of its by-laws to its burial space owners at the conclusion of the present proceedings. Manasota is in the business of selling burial space, and conveys that in fee simple to a purchaser, rather than offering mere burial rights to property it retains title to. There are currently between 17 and 18 thousand owners of burial spaces in Manasota Cemetery. Many of Manasota's owners or "clients" have purchased their land "pre-need." Frequently, however, burial spaces are required to be purchased in the "at-need" situation. Because Manasota has already sold in excess of 17 thousand cemetery lots, many of its potential "clients" already own their lots and so Manasota only needs to provide services at the time of the funeral itself. Funeral services at Manasota, by its by-laws, can only be held in a rotunda area away from the actual gravesite. Graveside services are prohibited by a provision of Manasota's bylaws. In the conduct of its business, Manasota often obtains from the funeral directors, the name, address, telephone number and relationships to the deceased of persons making funeral arrangements. Manasota is free to and often does contact that person directly in order to make arrangements for authorization to open and close the grave, conduct the rotunda service, and for payment of the grave opening and closing charge. This charge, for opening and closing the gravesite, is a set fee which is not negotiable. Manasota often quotes this charge and otherwise secures funeral arrangements by telephone. It has produced no evidence to show that this procedure has caused any adverse effect on its business. Manasota seeks, however, in this proceeding, to enact a by-law that requires persons with "paramount authority," that is, persons who are making funeral arrangements for the deceased, to actually sign an authorization form for the service and the grave opening and closing, and to pay for the opening and closing of the grave at least 24 hours in advance of the service. Manasota does not independently determine whether the persons who execute authorization forms and pay grave opening and closing charges, actually have "paramount authority" to do so, but rather, relies upon the assurances of such persons that they have such authority, or upon assurances of the funeral director who is otherwise in charge of arrangements. The proposed by-law requiring 24 hour advance payment and signed authorization from persons with "paramount authority" provides no standard for determining which persons, in the family, or otherwise connected with the deceased, have "paramount authority" and that term is nowhere defined in the proposed by-law or other places in Manasota's by-laws. Manasota, at present, frequently prepares gravesites without requiring a signed authorization form for such work in advance. Typically, Manasota does not presently require that an authorization form be executed when the person with alleged "paramount authority" is not available. Its present procedure, with this built-in flexibility, is especially beneficial for persons who must journey from distant parts of the country, upon hearing of the demise of a relative in the Sarasota area, and who would be unable to arrive 24 hours in advance of the scheduled service, even though such a person might indeed be the person in the deceased's family with "paramount authority" to make the arrangements. The present by-law does not allow any exception to its proposed requirement in this regard for persons who are unable, due to distance or otherwise, to go to Manasota's place of business to sign the appropriate forms and to pay the grave opening and closing charge 24 hours in advance of the scheduled service. The proposed by-law, for instance, does not have the flexibility of allowing the funeral director to act on behalf of such persons in arranging and paying for Manasota's services. By providing no standards for defining which persons have "paramount authority," the proposed by-law does nothing to alleviate any potential confusion between the funeral director and family members as to who has paramount authority to make such arrangements as purchase of a gravesite, payment of opening and closing charges, and other services and charges performed and required by Manasota. The identity of a deceased person is placed on a death certificate for that person by one who first assumes custody of the body. The information as to identity placed on the death certificate is obtained from the next of kin or the best qualified person or source available to identify the deceased. Prior to final disposition, the person who first assumes custody of the body, after the death certificate is prepared (typically, the funeral director) prepares a "burial transit permit" upon which the decedent is identified, which identification is based on the information appearing on the death certificate. Funeral directors who first assume custody of the body are not required to have personal knowledge of the identity of the decedent, but may rely upon the data provided by the next of kin or other qualified persons. Cemetery companies are entitled to rely on, and must rely upon, the information contained in a burial transit permit as to identity of the body that accompanies that burial transit permit to the cemetery premises. By sending a particular burial transit permit with a casket containing a body, a funeral director warrants that the body being conveyed is the body that was identified to them as the person whose name is reflected on that permit. However, funeral directors can make no warranty or representation that the initial identification of the body to them by other persons, upon which information both the death certificate and burial transit permits are based, is correct, unless of course, the funeral director knew the deceased personally. Once the funeral director delivers a casket containing a body to Manasota's rotunda before services, and once those funeral services in the rotunda facility are completed, the funeral director no longer has control over the casket and body, it having been delivered with its accompanying burial transit permit to the custody of Manasota. The funeral directors thus do not participate in the actual burial of the casket in the grave. Manasota, under the present practice, can easily identify caskets delivered to it with the information contained in the accompanying burial transit permit delivered with the casket, so as to ensure that the casket is properly identified. The funeral directors themselves who perform services at Manasota's premises, have no actual, personal knowledge whether the casket containing the body identified in the accompanying burial transit permit, will actually be buried in the correct grave, since they do not participate in the actual burial and leave the premises at the conclusion of the funeral services themselves. Manasota proposes that plastic identification tags be attached to the surface of the casket, but the permanency of this attempted identification method is not reliable because the tags have, in some instances, become unattached. Although the cost is minor, there is an additional cost to funeral directors if they are required to utilize such tags and insure that they remain permanently attached to the caskets, and this additional cost, however small, will be reflected in additional charges made to the public for such services. Further, information concerning identity of the deceased is contained in the burial transit permit which accompanies the casket. The repetition of the same identity information on a plastic tag to be attached to the casket would accomplish nothing, in the way of enabling Manasota to identify caskets in its possession, that the burial transit permit does not already accomplish. The point is that if the funeral director has information concerning who the decedent placed in the casket is, and records that on the burial transit permit, and then "publishes" that same information again by placing the identity information on a plastic tag attached to the casket, it will not serve to better identify the remains inside the casket and will not do anything to forewarn Manasota, the cemetery company, if a mis-identification has occurred by either the funeral director or by the person executing the death certificate, or otherwise informing the funeral director of the identity of the decedent's body placed in his custody. Finally, with regard to the proposed by-law concerning payment for Manasota's services at least 24 hours prior to the scheduled funeral service and its requirement that a person with "paramount authority" sign the necessary agreements with Manasota to initiate their services, at least 24 hours prior to the funeral service, it must be remembered that prior to burial, family members who are typically the group from which the person with "paramount authority" is chosen, are usually in a state of severe bereavement and are not in a proper state of mind to be conducting business transactions, especially during the particularly harrowing time for a family between the point of the decedent's death and the point of that funeral service and burial. It seems especially callous to require full payment for Manasota's services in advance, at least 24 hours before the service, right in the middle of this particularly acute period of bereavement between the death and the burial of a family member, with the implication being that if payment were not made and the appropriate agreements not signed timely, that Manasota might elect to delay or otherwise hinder the performance of the funeral services and burial. Certainly Manasota can provide its services when needed by bereaved parties with "paramount authority" over the remains of the deceased person but require payment at a later date, albeit a date certain, as is done in most other business transactions. The family member or other person with "paramount authority" could be billed at a later time just as easily. Manasota, like any other business, which IS not timely paid for outstanding goods or services rendered, has civil remedies available to it, and it would be beneficial to bereaved persons for Manasota to provide its services when needed, but not to mandatorily seek payment before it performs the funeral service or the burial.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the proposed amendments to the by-laws of Manasota Memorial Park, Inc. be disapproved, except that the proposed requirement that 24 hour advance notice by the person in paramount authority, of the need to schedule a funeral service and the proposed limit on Manasota's liability concerning quality of burial merchandise purchased "off-site", be approved. DONE and ENTERED this 27th day of August, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 27th day of August, 1984. COPIES FURNISHED: Douglas L. Stowell, Esquire MANG and STOWELL Barnett Bank Building Suite 740 Tallahassee, Florida 32302 Lee E. Hayworth, Esquire ISPHORDING, PAYNE, KORP, MUIRHEAD and GAY 601 South Osprey Avenue Sarasota, Florida Clyde A. Willard, Esquire The Capitol Suite 1302 Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
