The Issue Whether the licenses issued to Jimmie F. Prevatt, George W. Ammen, Richard Miller and the Brevard Funeral Home North and the Brevard Funeral Home South should be revoked or suspended for violation of Chapter 470, Florida Statutes, particularly Sections 470.12(1)(k), 470.12(1)(h), 470.12(2)(d), 470.12(2)(i), 470.12(2)(p) and 470.12(4)(a) and Rule 21J-7.10 of the Rules of the State Board of Funeral Directors and Embalmers, Florida Administrative Code.
Findings Of Fact By Administrative Complaint, Respondents, Jimmie F. Prevatt and George W. Ammen, were charged by the State Board of Funeral Directors and Embalmers with violations of subsections 470.12(1)(h), 470.12(1)(k), 470.12(2)(d), 470.12(2)(i), and 470.12(2)(p), Florida Statutes, and Rule 21J-7.10 of the Rules of State Board of Funeral Directors and Embalmers in that as licensed embalmers and licensed funeral directors, they paid or caused to be paid valuable consideration in the form of the use of the name and services of the licensed funeral establishments of which they were the licensed funeral directors in charge for use by Florida Memorial Gardens, a cemetery, in order to secure business from or through said cemetery, its affiliate organizations, its agents, and its employees, for the benefit of themselves and their respective funeral establishments; in that as licensed funeral directors in charge of licensed funeral establishments, they employed, retained or otherwise engaged Florida Memorial Gardens and its employees and agents to solicit business for their respective funeral establishments; in that they, as licensed funeral directors in charge of licensed funeral establishments, offered an inducement to Florida Memorial Gardens and its employees and agents as solicitors, agents, or canvassers for the purpose of securing or attempting to secure business for their respective funeral establishments by engaging in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice; and in that they violated the provisions of Chapter 470, Florida Statutes. By Administrative Complaint, Respondent Richard K. Miller, was charged by the State Board of Funeral Directors and Embalmers with a violation of Rule 21J-7.10, Rules of State Board of Funeral Directors and Embalmers, enacted pursuant to subsection 470.04(2), Florida Statutes, in that as a licensed embalmer and licensed funeral director he engaged in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice. By Administrative Complaint, Respondents, Brevard Funeral Home North and Brevard Funeral Home South, were charged by the State Board of Funeral Directors and Embalmers with violations of subsection 470.12(4)(a), Florida Statutes, in that Jimmie F. Prevatt and George W. Ammen, respectively, as funeral directors in charge, and Robert G. Weld, as owner of said funeral homes, have been guilty of acts provided as grounds for revocation of an embalmer's license as provided in Section 470.12, Florida Statutes. The Petitioner, State Board of Funeral Directors and Embalmers, seek to revoke the licenses of Respondents and impose on them the cost of these proceedings. The Complaint was dated June 9, 1976, and a copy was furnished to the Respondents herein. At the time of the filing of the Complaint, Robert G. Weld was the owner of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the filing of the Complaint Mr. Weld sold the Brevard Funeral Home North to Respondent, Jimmie F. Prevatt and to Mr. Alan P. Meindertsma. Brevard Funeral Home South was sold by Mr. Weld to Respondent, George W. Ammen, Jr. The sales were effective September 20, 1976. The sale consisted of the furnishings, equipment and funeral service business but not the land, building and fixtures of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the sale, the State Board of Funeral Directors and Embalmers upon application reissued the funeral establishment licenses to Brevard Funeral Home North and Brevard Funeral Home South to reflect the new owners, with the same license number tags existing at the time of the ownership by Mr. Weld, reflecting that Mr. Prevatt and Mr. Ammen were the same funeral directors in charge. There was no new licensing inspection. A motion to dismiss was filed on behalf of Brevard Funeral Home North and Brevard Funeral Home South. The movants contended that the change of ownership from Mr. Weld to the new owners rendered the Complaint moot as against those establishments. The motion was denied for the reason that the parties are the same, there had been adequate notice, and the parties had an opportunity to be heard at the administrative hearing. The, Petitioner Board and this Hearing Officer has jurisdiction of the parties and subject matter. A motion to dismiss was filed for failure of the State Board of Funeral Directors to comply with Section 120.60(4), Florida Statutes, in that the agency had not given the licensees an opportunity to show that they had complied with all lawful requirements for retention of their licenses but were obligated to come immediately to a formal hearing. The motion was denied. A motion to dismiss was filed stating that the Petitioners contend the act complained of a violation of Section 470.12, Florida Statutes. Respondents contended this is a violation of the rights of Respondents under the Florida Constitution. Motion was denied. The Hearing Officer has jurisdiction. Prior to September 20, 1976, at which time Respondents Prevatt and Ammen purchased an ownership interest in Brevard Funeral Home North and Brevard Funeral Home South, Robert G. Weld, owner of said funeral homes, entered into an agreement with Gene Crowe, owner of Florida Memorial Gardens also known as Florida Memorial Cemetery. The agreement authorized the use of the names of the two funeral homes and authorized sales presentations to be made by salesmen employed by Mr. Crowe and his business organization to the general public to sell a product known as the "Eternal Rest Vault." Mr. Weld agreed to execute funeral service certificates for issuance by Mr. Crowe's organizations to purchasers of the Eternal Rest Vault in which Brevard Funeral Home North and Brevard Funeral Home South guaranteed to perform services constituting a complete funeral to be performed by one of said funeral homes at the time of need for a fixed price to be paid at the time of need. During the first half of 1976 Mr. Crowe's salesmen did in fact use the names and reputations of Brevard Funeral Home North and Brevard Funeral Home South in their sales presentations to the general public and their direct sales campaign. Mr. Weld executed funeral service certificates which were delivered to Mr. Crowe's customers by Mr. Crowe's business organizations. Mr. Weld and Brevard Funeral Home North and Brevard Funeral Home South performed funeral services pursuant to said funeral service certificates. Respondents Jimmie F. Prevatt and George W. Ammen are two of the current owners and are licensed funeral directors in charge of Brevard Funeral Home North and Brevard Funeral Home South. They did not negotiate the aforesaid agreement between Mr. Weld and Mr. Crowe but they had full knowledge of the agreement including the name of the respective funeral homes in the sales presentation of Mr. Crowe's salesmen and the use of the names of the funeral homes on the funeral service certificates. Respondents Prevatt and Ammen performed the duties of funeral directors pursuant to the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller is employed as a funeral director of the Brevard Funeral Home South and was a consultant by Mr. Crowe to his business organizations prior to the filing of the Complaint by the Petitioner. Mr. Miller consulted with Mr. Crowe and Mr. Weld regarding the sales presentation used by Mr. Crowe's salesmen in the marketing of the Eternal Rest Vault. He reviewed the form of the funeral certificates that were to be issued pursuant to said sales and at least once accompanied the salesmen during a sales presentation to a customer. Prior to the institution of the Complaint, Mr. Gene Crowe had acquired a distributorship for a product known as "Eternal Rest Vault." The sales concept used in marketing the Eternal Rest Vault is based upon the representation that the total cost of an entire funeral can be reduced by using the Eternal Rest Vault to serve as both the casket and a burial vault. Sale of the vault is directly to the public based on a preneed sale. Telephone solicitation and sales calls are made in the homes of prospective customers by Mr. Crowe's team of salesmen. The Eternal Rest Vault is intended to serve as both a casket and a vault and requires special arrangements in connection with the funeral services involved. The base of the Eternal Rest Vault incorporates a slumber bed upon which the dead human body lies. The sides and top of the vault are not used during the funeral services itself. A catafalque, a bottomless casket, is set on the base of the vault around the slumber bed and during the funeral service the body is lying in the catafalque on the slumber bed. After the funeral service is over, the catafalque is removed and the sides and top of the vault are then placed upon the base of the base of the vault and sealed. The vault is then buried in the grave. This system requires special equipment and services to be performed by the funeral home performing the funeral services. In order to be sure of a funeral home willing to perform the special services required of the Eternal Rest Vault and in order to assure potential customers of a fixed price at the time of need of a funeral service involving Eternal Rest Vault, the total funeral concept is an important integral part of the overall marketing package included in the sale of the product and the agreement between Mr. Crowe and Mr. Weld. The terms of the agreement entered into between Mr. Crowe and Mr. Weld included an arrangement whereby Mr. Crowe's salesmen would be authorized to include in their sales presentation, an assurance to their potential customers of the Eternal Rest Vault that Brevard Funeral Home North and Brevard Funeral Home South would provide funeral services involving use of the Eternal Rest Vault. The sales presentation described in the sales kit used by Mr. Crowe's salesmen during the first part of 1976 includes the language that was used by the salesmen who describe Brevard Funeral Home North and Brevard Funeral Home South as the finest funeral homes in the community with very fine reputations. The presentation included a copy of a funeral service certificate naming Brevard Funeral Home North and Brevard Funeral Home South as funeral homes in the community that were guaranteed to service the Eternal Rest Vault, a funeral service certificate was executed by Mr. Weld and mailed by Mr. Crowe's staff to the purchaser. The funeral service certificate stated a fixed price for which Brevard Funeral Home North and Brevard Funeral Home South would at the time of need provide a funeral service to the named certificate holder. The results of the arrangement included in the agreement between Mr. Weld and Mr. Crowe have been the sale of some twenty-six hundred (2,600) Eternal Rest Vaults in Brevard County and several funeral services provided by Brevard Funeral Home North and Brevard Funeral Home South pursuant to previously issued funeral service certificates for services for purchasers of the Eternal Rest Vaults. Respondents Jimmie F. Prevatt and George W. Ammen, the funeral directors in the home then owned by Mr. Weld, were told that they would be participating in the marketing arrangements included in said agreement. Mr. Prevatt and Mr. Ammen as funeral directors performed services consistent with the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller was employed during the first half of 1976 by Mr. Crowe, Florida Memorial Gardens, and Mr. Weld, Brevard Funeral Home South. He performed full time duties as a funeral director for Brevard Funeral Home South and at the same time was a paid consultant, with Florida Memorial Gardens. He participated in the business organization of Mr. Crowe as a consultant and at least on one occasion accompanied one of Mr. Crowe's salesmen on a sales call and observed the entire sales presentation made to a potential Eternal Rest Vault customer. The names Brevard Funeral Home North and Brevard Funeral Home South, Respondent's establishments, were used on the certificates issued to various individuals as a result of the marketing of the Eternal Rest Vault. The Hearing Officer further finds: The agreement to allow the use of the names Brevard Funeral Home North and Brevard Funeral Home South is a valuable consideration and the use of the names was meant to secure business for the funeral homes and for the Florida Memorial Gardens, a cemetery, in the promotion of sales of the new type of vault. The valuable consideration is apparent because the new type of vault requires a funeral home and the funeral directors prepared to render special service not necessary with the traditional type of funeral arrangements. To service the product, the participating funeral home must also have a catafalque in which the vault fits. It is a valuable consideration to agree to perform a service in a particular manner with a specified product. The agreement between the then owner of the funeral homes, Mr. Weld, and Florida Memorial Gardens was strictly a business transaction and his object was to solicit more business for his funeral homes. The advice to the holder of the certificate that the two Respondent funeral homes would service the product they bought leads them directly to those funeral homes to perform the service for which they will pay at the prearranged price. The Respondents Prevatt and Ammen were fully advised of the agreement which involved the funeral homes in which they were the licensed funeral directors. Both Respondents benefited monetarily by the business thus secured and as new owners benefit from these business efforts and solicitations of the former owner, Mr. Weld. The continuation of the servicing of the product provided for in the certificates is a continuation of the solicitation effort started by Mr. Weld at the time of the original agreement. The printed certificate is entitled "Funeral Service Warrant" and states "The basis or legal representatives of the holder of the warrant shall be entitled to receive a unit of service from their choice of Brevard Funeral Home South, Brevard Funeral Home North or Florida Memorial Mortuary for:" and the name of the customers is then inserted after the sale is made. The ultimate emoluments of the sale go both to the Florida Memorial Mortuary and later, at the tire of death, to the participating funeral homes. Certificates are not presently being issued. On at least two contracts, after the Respondent funeral homes had been sold to Respondent Prevatt and Respondent Ammen, to wit December 2, 1976, the customers were advised by letter from the President of Florida Memorial Gardens, Gene Crowe: "If you will take your Funeral Service Certificate to Brevard Funeral Home North, 1450 Norwood Avenue, Titusville, I am sure they will fully explain all services and make arrangements to accept whatever monies you may wish to pay against the final funeral costs of which your certificate calls for. If there is any further questions after you have contacted Brevard Funeral Home North, please do not hesitate to call us." It is self evident that the purpose of the Funeral Service Warrant or certificate was to solicit business for the Respondent funeral homes as well as Florida Memorial Gardens. Respondent Miller was fully advised of the agreement executed by Mr. Weld and Florida Memorial Gardens and as an employee of Florida Memorial Gardens consulted with and advised those engaged in selling the said vault to be serviced by the funeral home, Brevard Funeral Home South, in which he was also employed as a funeral director. His activities were attempts to secure business.
Recommendation Suspend the license of Brevard Funeral Home North and Brevard Funeral Home South and Respondents Prevatt, Ammen and Miller for a period not to exceed thirty (30) days and levy a fine on each of the Respondent licensees not to exceed Five Hundred Dollars ($500.00) each. DONE and ORDERED this 21st day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jarold W. Regier, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202 Philip F. Nohrr, Esquire J. Wesley Howze, Jr., Esquire Nohrr & Nohrr Post Office Box 369 Melbourne, Florida 32901 Joe T. Caruso, Esquire Wolfe, Kirschenbaum & Caruso Post Office Box 1271 Merritt Island, Florida W. Ford Duane, Esquire Robertson, Williams, Duane & Lewis 538 East Washington Street Orlando, Florida 32801
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
Conclusions THIS MATTER came before the Board of Funeral Directors and Embalmers (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(j), Florida Statutes, on March 11, 1997, in Miami, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Leon M. Biegalski, Esquire. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the Board meeting. Upon consideration of the Administrative Law Judge's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings: EINDINGS OF FACT 14. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is competent, substantial evidence to support the Administrative Law Judge’s Findings of Fact.
Findings Of Fact Petitioner is the governmental agency responsible for licensing funeral home directors and embalmers. Respondent is currently licensed as a funeral home director and embalmer under license number FE 0001751. On February 5, 1993, Petitioner conducted a routine inspection of Burrell's Funeral Home (the "funeral home"). The funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell. Mr. Urey Burrell has never been licensed by the state as a funeral home director and embalmer. Mr. Urey Burrell was the only person present at the funeral home at the time of the inspection. The funeral home failed to maintain a casket price list and a copy of the current rules and inspection criteria. All of those documents were requested by Petitioner's inspector, and none of them were made available to the inspector. Respondent did not display his current Funeral Director in Charge license in a conspicuous place. The license was hidden behind other documents on the wall. Respondent signed blank contracts for services and left them at the funeral home for use in his absence. A forged license purporting to license Mr. Urey Burrell as a funeral home director and embalmer was conspicuously displayed on the wall of the funeral home. The operating table in the preparation room was broken and rusty. The table was broken because Mr. Urey Burrell had just embalmed a lady who was so large that she broke the table. The broken operating table was reinforced on two sides with unfinished wood. Unfinished wood is a porous surface. An operating table must be nonporous in order to avoid contamination by contagious disease and to prevent the spread of such disease to employees and others who may come in contact with the table. The preparation room was not clean and sanitary. There were piles of trash littering the room. Junk and clothes were scattered about the rooms and hallways of the funeral home. The funeral home must be kept clear of debris so that it can be easily cleaned and disinfected. This safeguards against the spread of contagious disease. Otherwise, the public may be exposed to contagious disease that can be tracked out of the funeral home. The floor of the funeral home was dirty. Baseboards were splitting from the walls. The space between the baseboard and walls created another porous surface that can spread infectious disease. The master trocar and scalpels were rusted. A master trocar is used to aspirate cavities that can not be prepared by embalming the venous and arterial system. Instruments must be kept clean in order to avoid the spread of infectious disease. The funeral home failed to maintain an adequate supply of hardening compound. There was little or no hardening compound left in the container made available to the inspector. Mr. Urey Burrell stated that he had ordered additional compound. Hardening compound is essential to the services performed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 470.035(1)(h) and Rule 21J-30.001(4)(h), but guilty of violating Sections 470.036(1)(g) and (n) and Rules 21J-21.003(1)(b), (c), (f), (g), and (h). It is further recommended that the Final Order suspend Respondent's license and place Respondent on probation in accordance with this Recommended Order. In the event Respondent chooses no to comply with the terms of suspension and probation, it is recommended that Respondent's license be revoked. RECOMMENDED this 18th day of April, 1995, in Tallahassee, Florida. DANIEL MANRY 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 18th day of April, 1995.
The Issue The issue in this case is whether Respondent should deny Petitioner's application to take the Funeral Directors and Embalmers examination on the ground that Petitioner was convicted of crimes that directly relate to the ability to practice funeral directing within the meaning of Section 470.009(1)(c), Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for the licensing and regulating funeral directors and embalmers in the state. Petitioner is 30 years old and has been working as an employee in three different funeral homes since 1996. On October 12, 1999, Petitioner applied to take the licensing examination and to be licensed as a funeral director and embalmer. Respondent denied the application on the ground that Petitioner was convicted of four felonies between 1989 and 1994. The parties stipulated that Petitioner satisfies each of the requirements for examination and licensure as a funeral director and embalmer except for Petitioner's criminal record. The only factual issue is whether one or more of the criminal offenses "directly relates to the ability to practice funeral directing or the practice of funeral directing" within the meaning of Section 470.006(1)(c). Three of the four felonies at issue were third degree felonies for burglary of a conveyance, i.e., an automobile, in violation of Section 810.02(3). The fourth felony was a second degree felony for shooting into an occupied vehicle. The exact dates of the offenses are not in evidence. Petitioner testified that all of the offenses occurred within six weeks of each other. The court documents in Respondent's Exhibit 1 do not reflect the date of the offense but only the year of the case number and the date of adjudication and sentence. Petitioner was 19 years old when he was sentenced for his first burglary on June 29, 1989. The court withheld adjudication of guilt for the first automobile burglary in 1989 in Case Number 89-7903CF and sentenced Petitioner to one year of probation. On February 12, 1993, the court revoked Petitioner's probation for a second automobile burglary in 1993 in Case Number 93-0543CFA. The court found Petitioner guilty of a second degree felony for shooting into an occupied vehicle in violation of Section 790.19. The court sentenced Petitioner to concurrent terms of eight months in the Duval County Jail for both felonies and gave Petitioner credit for 52 days served prior to sentencing. On March 24, 1995, Petitioner entered a plea of nolo contendere to a 1994 charge of automobile burglary. The court found Petitioner guilty and sentenced Petitioner to 364 days in the Duval County Jail. Petitioner claims that the last offense actually occurred in 1993. He testified that the charge was filed in 1994 and that the sentencing occurred in 1995. The court documents are silent on those issues. Petitioner was 23 in 1993. Living in a correctional institution "scared" Petitioner. He feared that he might spend the rest of his life in similar facilities. Petitioner decided that he wanted to live a productive life like other people. After release from jail, Petitioner earned his high school diploma and then attended St. Petersburg Junior College. On August 1, 1997, Petitioner earned an Associate in Science Degree in Funeral Services. Petitioner paid for his education through student loans and part-time employment. Petitioner first worked at a Kentucky Fried Chicken outlet for minimum wage. He then obtained a job paying $5.75 an hour at the Creal Funeral Home in St. Petersburg, Florida. Petitioner then worked for a second funeral home known as Memorial Park. After completing his education, Petitioner returned to Jacksonville and worked for Wendell Holmes Funeral Home. Petitioner worked in all of the funeral home jobs to learn his profession. Each job paid minimum wage or slightly more than minimum wage. Petitioner sees a license as a funeral director and embalmer as an opportunity to help people in their time of need and for Petitioner to integrate into society. The work Petitioner has performed makes him feel good about himself, especially when someone from a bereaved family tells Petitioner that he did a good job. At the hearing, Petitioner admitted to committing the offenses and accepted personal responsibility. However, Petitioner has no fear that his criminal history would adversely affect his ability to practice funeral directing. On June 25, 1999, Petitioner passed the National Board Exam given by The International Conference of Funeral Service Examining Boards, Inc. Petitioner earned an overall exam score of 83.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner satisfies the requirements of Section 470.009(1)(c). DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2000. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Madeline Smith, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
