Findings Of Fact Thomas F. Nelson, Jr. is licensed by the Florida Board of Funeral Directors and Embalmers as a Funeral Director and Embalmer and holds license number FE 0002843. He was so licensed at all times here relevant. Joan Kelly died 7 July 1980 and the body was given to Respondent for preparation. At the time, Respondent had an agreement to use the facilities at Stowers Funeral Home at 11301 North Florida Avenue, Tampa, Florida, to prepare the body and hold funeral services. The body of Kelly remained at the funeral home for approximately five days before it was taken to the crematorium at Brandon, Florida. An incision had been made in the body to embalm, but the blood vessels had not been raised and the body was not embalmed. Respondent's testimony to the contrary, that he did embalm the body of Kelly, and the confirming testimony of Respondent's other witness is not believed. When Kelly's body was delivered to the crematorium some five days after death, the body was in an advanced state of decomposition, was turning green in color and emitted a strong odor of putrefaction. Respondent's witness could not account for his inability to detect an odor when he delivered Kelly's body to the crematorium while others could detect the odor. There was no evidence of maggots in the body as alleged in the Administrative Complaint. In 1979, Respondent and Richard Stowers, owner of Stowers Funeral Home, discussed an arrangement whereby Respondent could operate out of Stowers Funeral Home as an independent funeral director and pay, as rent, a percentage of the fees he received for services. Before these arrangements were finalized, Stowers went to the mountains on a vacation. When he returned, he found Respondent had moved in and was operating out of the address at 11301 North Florida Avenue, Tampa. Upon concluding the arrangements with Stowers, Respondent allowed his registration as a funeral home on Busch Boulevard to lapse. While using the facility at 11301 North Florida Avenue, Respondent was holding himself out as Thomas Nelson Funeral Home, P.A., and advertised in the yellow pages of the 1980 Tampa telephone directory that his address was 11301 North Florida Avenue. In the initial application for the 1980 yellow page ads, Respondent directed the address be omitted from the column in which "Thomas Nelson Funeral Home, P.A." was listed with other funeral homes. However, before the yellow pages are published, the proposed ad is presented to the advertiser, who has a final opportunity to make corrections before the yellow pages are printed. There was no record that Respondent objected to any of these ads. Respondent testified that he told the phone company to leave out the 11301 North Florida Avenue address from the yellow pages. He also testified that he researched the laws and determined that his method of operation as a Professional Association was legal. Respondent contended that Thomas Nelson Funeral Home, P.A., was a fictitious name even though he had formed the service corporation while he was operating a funeral establishment from an address on Busch Boulevard. Although the initial entry by Respondent to the funeral establishment at 11301 North Florida Avenue, Tampa, was with Stowers' implied, if not expressed, consent, Stowers received information that the Board of Funeral Directors and Embalmers frowned on two funeral homes being operated at the same address and attempted to terminate his agreement with Nelson. Since Nelson did not move voluntarily, in August, 1980, Stowers brought eviction proceedings against Nelson and obtained an eviction in September, 1980. Nelson contends that the ad he intended for the yellow pages was the photograph presented as Exhibit 3. It is noted that "Funeral Home" has been x- ed out on Exhibit 3 and that "Funeral Directors" has been substituted. The ad appearing on Exhibit 2 (p. 382, Tampa Yellow Pages 1980) has a different photograph of Nelson than the one presented in Exhibit 3. Otherwise, the printed information in this ad in Exhibit 2 is the same as the printed information on Exhibit 3, except for the telephone numbers, which are different. No explanation was presented for this disparity in telephone numbers, but the number in the yellow page ad with the photograph is the same number shown with the other five yellow page entries in which Nelson's name appears. Nelson introduced Exhibit 3 for the apparent purpose of showing the phone company makes mistakes.
Findings Of Fact Respondent, Sowell, is currently a licensed funeral director and embalmer in the State of Florida. Respondent, Sowell's Funeral Home, is a licensed funeral establishment in the State of Florida. Sowell is the licensed funeral director and embalmer in charge of Sowell's Funeral Home. On April 19, 1978, Mr. Eston Singletary died in Jacksonville, Florida. His divorced wife, Gussie Wright Singletary, called the Reverend Charles James Crosby to come to her former husband's death bed. Reverend Crosby is minister of the New Trinity Baptist Church in Jacksonville, and, while never a licensed funeral director and embalmer, he worked for the Sowell Funeral Home from 1949 to 1952 and from 1960 to 1968. Reverend Crosby has no financial interest in Sowell Funeral Home. Mrs. Singletary claims that Reverend Crosby represented to her that he owned Sowell's Funeral Home. It was for this reason, says Mrs. Singletary, that she contacted Reverend Crosby and agreed to turn her former husband's body over to Sowell's. However, there is no evidence to establish that Sowell either authorized or knew about such a representation on the part of Reverend Crosby, if it in fact occurred. Upon the advice of Reverend Crosby, Mrs. Singletary released her former husband's body to Sowell at the hospital. Mrs. Singletary did not have adequate funds to cover the expense of the funeral preparations so Reverend Crosby paid for the funeral and Mrs. Singletary agreed to reimburse him. Mrs. Singletary asked Reverend Crosby to handle the details of the funeral for her. Thereafter, Sowell handled the body of Eston Singletary, embalmed it and signed the required death certificate as funeral director. The evidence shows that in connection with Singletary's death, the Reverend Charles Crosby met with the family of the deceased, including Mrs. Singletary; assisted the deceased's family in planning the details of the funeral; advised the family regarding the release of the body to Sowell; arranged for flowers for the funeral; accompanied the family to a local casket company for its selection of a casket in which to inter the deceased; met with members of the family to collect information for completion of the required death certificate; and received case and checks from family members and other sources in an amount exceeding Sowell's charges by $142.76. When Sowell was contacted by Reverend Crosby, Crosby represented that he was acting on behalf of the deceased's family. It was to Reverend Crosby and not to the family that Sowell delivered the receipt for the services he rendered. On April 27, 1978, Reverend Crosby, on behalf of the family and Sowell, on behalf of the funeral home, entered into a contract for services to be provided in connection with the funeral of Eston Singletary. Reverend Crosby obtained personal information regarding the deceased from the family for Sowell. Sowell then arranged for the obituary notice. The night before the funeral there was a viewing of the deceased at the funeral home. Reverend Crosby was there escorting the widow. The following day, Reverend Crosby served as master of ceremonies at deceased's funeral which was conducted at a church other than the one with which the Reverend Crosby was associated. Sowell was in attendance at the deceased's funeral. While the widow testified that she had not seen Sowell at the funeral, such testimony is insufficient to overcome Sowell's testimony that he did attend the funeral since the widow, having never met Sowell, would not have recognized him if she had seen him. Sometime subsequent to the funeral, the widow went to the funeral home to get a receipt. Since the funeral home was closed at the time, she called Sowell at his home. Sowell informed her that the receipt had been given to Reverend Crosby. With regard to the remaining charge, the evidence was incontrovertible that the funeral directors and embalmers licenses of Sowell were suspended pursuant to section 470.10(1), Florida Statutes, when he performed the duties of a funeral director in connection with the death and funeral of Willy D. Whitehead on or about September 15, 1978. The suspension was occasioned by the timely payment of the annual license fee. Payment was made of renewal on October 19, 1978, at which time the licenses were reinstated.
Findings Of Fact Respondent has been licensed in Florida since December 16, 1994, as a licensed funeral establishment, holding license number FH 0002113. Edgar Harrell, who is also known as Ed Harrell, has never been a licensed funeral home director in Florida. Mr. Harrell owns Respondent and has owned at least part of Respondent at all material times. Respondent advised Petitioner of a name change. By letter dated January 31, 1995, to "Ed Harrell and Jerome Smith, Owners, Ed Harrell Funeral Home," Petitioner informed Respondent that its request for a name change had been processed and was effective as of January 31, 1995. The name was changed from "Smith-Harrell Funeral Services" to "Ed Harrell Funeral Home." The name change reflected the purchase by Mr. Harrell of Jerome Smith's ownership interest in Respondent. Petitioner's investigator conducted an inspection of Respondent's facility on March 1, 1995. He completed an inspection form reflecting the results of the inspection. The items corresponding to Count I are 134, 142, and 143. The item corresponding to Count II is 139. The item corresponding to Count III is 129. The investigator marked each of these items as not satisfactory. Item 134 is: the "funeral establishment/director providing cremation services obtaining signed declaration for disposition of remains." The form states in handwriting, "Ed signed." Item 134 references Rule 61G8-31.001(2). Item 142 is: the "customer's written agreement contains name, address, telephone number of establishment and disclosure statement." Item 142 references Section 470.035(4). Item 143 is: the "customer's written agreement dated and contains signatures of customer and funeral director." Item 143 references Section 470.035(5). Item 139 is: the "itemized price list of merchandise/services with establishment name, address and telephone available." The form states in handwriting, "Old estab[lishment] name." Item 139 references Section 470.035(1) and (2). Item 129 is: the "establishment/funeral director in charge name displayed at public entrance." Item 129 references Rule 61G8-21.003(6). The investigator marked other items as unsatisfactory on the inspection form, but these were not cited in the Administrative Complaint. Petitioner proved by clear and convincing evidence that Mr. Harrell signed an Authorization for Cremation and Disposition. The agreement was dated December 15, 1994, and Mr. Harrell signed as the "licensed representative" of Respondent. Petitioner failed to prove by clear and convincing evidence that the customers' written agreements with Respondent failed to contain the correct name of Respondent. The agreements introduced into evidence bore the name, "Smith- Harrell Funeral Services," but the agreements predated the effective date of the name change to "Ed Harrell Funeral Home." The proof was inconclusive as to blank form agreements. However, Petitioner proved by clear and convincing evidence that the customers' written agreements with Respondent were signed by Mr. Harrell, rather than the licensed funeral director. In three cases, Mr. Harrell signed such agreements on behalf of Respondent. Mr. Harrell was at all times a controlling person of Respondent. Petitioner thus proved by clear and convincing evidence that Respondent aided and abetting an unlicensed person in the practice of a licensed activity in the matters set forth above. Petitioner proved by clear and convincing evidence that Respondent was still using an old price list, with the name of "Smith-Harrell Funeral Services," at the time of the inspection. Petitioner proved by clear and convincing evidence that Respondent failed to display its name or the name of a licensed funeral director at the public entrance at the time of the inspection. Neither Respondent nor Mr. Harrell committed any fraud or deceit, nor did either party attempt to commit any fraud or deceit, in the matters set forth above. Mr. Harrell simply had failed to obtain a new price list and new name display by the time of the inspection, which was little more than a month following the approval of the name change. However, Mr. Harrell offered no excuse for signing documents requiring the signature of a licensed funeral director.
Recommendation It is RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order finding Ed Harrell Funeral Home guilty of two violations of Section 470.036(1)(h) and one violation of 470.036(1)(n) and imposing penalties of a reprimand, administrative fine of $750, and costs of the entire investigation and prosecution. ENTERED on May 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 22, 1996. COPIES FURNISHED: Susan Foster, Executive Director Board of Funeral Homes and Embalmers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Attorney Miriam S. Wilkinson Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Edgar Harrell 2435-C Fowler Street Ft. Myers, Florida 33906
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
