Findings Of Fact At times pertinent to this proceeding, Lewis J. Howell has been licensed as a funeral director and embalmer under the laws of the State of Florida, license numbers FE 1442, FD 1270, and E 1442. Further, Howell Morning Glory Chapel has been licensed as a funeral establishment under the laws of the State of Florida, license number FH 1092. Respondent Howell has acted as the only funeral director in charge, and owner of Respondent Funeral Establishment. The testimony of Assistant to the Executive Director of the Board of Funeral Directors and Embalmers, Department of Professional Regulation, established that for the 1979/1981 renewal period for licensure of funeral directors and embalmers, Respondent Lewis J. Howell issued a check on November 1, 1979, to cover renewal fees and late penalties. This check was dishonored by the bank, and funds covering the returned check were received by the Department of Professional Regulation on or about January 18, 1980. The 1981/1983 renewal of the funeral director and embalmer licenses of Respondent Howell, were due as of September 1, 1981. After that date the licenses would become inactive. By a check dated March 3, 1982, Respondent Howell remitted to the Department/Board a check in the amount of $230 for renewal of embalmer and funeral director licenses and licenses for these capacities were issued by the Department/Board based upon this check. The check was later dishonored by the bank. Funds covering the dishonored check were received by the Department on or about August 4, 1982. On March 31, 1982, Crawford C. Richardson, Jr., investigator for the Department of Professional Regulation, went to the Respondent Funeral Establishment for the purpose of conducting an inspection of the premises. Due to Respondent Howell's absence, the investigator informed the attendent that he would return the next day at 9:00 a.m. On April 1, 1982, Investigator Richardson returned to the Respondent Funeral Establishment at 9:00 a.m., and met Respondent Howell. When he entered the Respondent Funeral Home he smelled a very strong, putrid odor emitting from the side of the building where the preparation room was located. Based upon his previous experience, Richardson identified this as the smell of decaying bodies. Richardson noted the following deficiencies on the April 1, 1982, inspection: No hand basin in the preparation room. No operating table in the preparation room. Embalming tools were rusted and dirty. Ceiling of the chapel was partially collapsed. Ceiling in the preparation room was water damaged. No sanitary waste receptacle was present. Ventilation equipment in the preparation room was inoperable. Entire funeral establishment was dirty and had empty liquor bottles strewn about. No printed or typewritten list of retail prices or written agreement form was available as required by Sections 470.035, Florida Statutes. On April 26, 1982, Investigator Richardson returned for an announced follow-up inspection but Respondent Howell was not present. None of the corrective work noted from the April 1, 1982, inspection had been accomplished. After waiting for over an hour for Howell to return, Richardson informed the attendent that he would return the next day at 9:00 a.m. On April 27, 1982, at 9:00 a.m., Investigator Richardson returned to the Respondent Funeral Establishment and Howell informed Richardson that he had insufficient time to complete the repairs, but that he would have them completed by the following day. Richardson noted that there was an electrician repairing the ventilator fan and that a stainless steel operating table was in the preparation room. On that visit, Respondent Howell produced his funeral director and embalmer licenses issued by the State. Investigator Richardson informed Respondent Howell that he would return in one week. On May 4, 1982, Investigator Richardson arrived at the Respondent Funeral Establishment at 9:00 a.m. and noted that the exhaust fan had been repaired, but noted that a deceased body was lying on a makeshift plyboard table in the preparation room. The table was of a porous material which cannot be properly maintained. Respondent had several bodies in the Chapel of the Funeral Establishment on this visit and they, too, were lying on makeshift plyboard shelves. Respondent Howell informed Investigator Richardson that the stainless steel operating table Richardson had seen on the April 27 visit was being repaired but refused to state which repair shop it was located at. The hand sink had not yet been installed. The general condition of the funeral facility was still filthy, and no written price lists or agreements were available. The preparation room floors were dirty and there were no sanitary waste receptacles present. As to the written price lists and agreements, Howell told Richardson that he had not had time to accomplish this requirement, so Investigator Richardson showed him several examples of these written documents from other funeral establishments to aid him in this task.
Recommendation From the foregoing, it is RECOMMENDED: That the licenses of Respondent Howell as a funeral director and embalmer, and the license of the Funeral Establishment, be suspended until the Respondents present to the Board of Funeral Directors and Embalmers a plan for reentry into the practice of funeral directing and embalming that will insure that the statutes and rules governing such practice will be followed and that, thereafter, their licenses be placed on probation for one year subject to continued adherence to such statutes and rules. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of December, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Dept. of Professional Reg. 130 North Monroe Street Tallahassee, Florida 32301 Mr. Lewis H. Howell 669 Florida Avenue Jacksonville, Florida 32202 Bruce Barcelo, Acting Executive Director Board of Funeral Director and Embalmers Room 507, 111 East Coastline Drive Jacksonville, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence produced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding Respondent Larkins was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued licensed numbers FE 2310, E 2310 and FD 2106. At all times pertinent to this proceeding the Respondent Anderson was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 2204, E 2204 and FD 2003. At all times pertinent to this proceeding Respondent Evans was licensed as an embalmer and funeral director by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 790, E 790 and 672. At all times pertinent to this proceeding Respondent Stone was licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, having been issued license numbers FE 459, E 459 and 205. At all times pertinent to this proceeding Respondent Stone Funeral Home was licensed as a funeral establishment by the Board of Funeral Directors and Embalmers, having been issued license number FH 214. The corporate officers of said establishment are Fannie B. Stone, President; Rosalyn Gordon, Secretary- Treasurer; and Raymond S. Gordon, Vice-President. Raymond S. Gordon's address is the same as the Respondent funeral establishment, 2401 East Columbus Drive, Tampa, Florida. Neither Raymond S. Gordon nor Rosalyn Gordon have ever been licensed as a funeral director, embalmer, funeral director intern or embalmer intern by the Florida Board of Funeral Directors and Embalmers. James Williams was a licensed funeral director in charge of Williams Funeral Home, Plant City, Florida, between October 1979 and March 1980. Williams was never the licensed funeral director in charge of the Respondent funeral establishment. On or about October 28, 1976, the Board of Funeral Directors and Embalmers was advised that Respondent F.B. Stone had replaced William Gordon as the funeral director in charge of the Respondent funeral establishment. The Respondent Anderson replaced Respondent F.B. Stone as the funeral director in charge of Respondent establishment on August 4, 1980, and prior to that time, Respondent Anderson was the funeral director in charge of a Lakes Wales funeral home. The Respondent Anderson notified the Board of Funeral Directors and Embalmers that he was no longer the funeral director in charge of Respondent funeral establishment as of August 27, 1980. It was not until on or about October 1, 1980, that the Board of Funeral Directors and Embalmers was advised that Respondent Evans was the funeral director in charge of Respondent funeral establishment. By letter dated May 14, 1981, Respondent Larkins notified the Board of Funeral Directors and Embalmers that he was the funeral director in charge of Respondent funeral establishment as of April 1, 1981. As a normal course of conduct, affidavits of cases embalmed and bodies handled by the Respondent funeral establishment were filed with the local registrar of vital statistics, more than five working days after the end of each month The following chart sets forth the months in question and the actual date of filing of the affidavits with the local registrar of vital statistics: MONTH ACTUAL DATE OF FILING AFFIDAVIT January 1980 February 28, 1980 February 1980 April 7, 1980 March 1980 October 14, 1980 April 1980 October 14, 1980 May 1980 October 14, 1980 June 1980 October 14, 1980 July 1980 October 14, 1980 August 1980 October 14, 1980 September 1980 (Signed October 7, 1980) October 1980 (Received by Board December 1, 1980) November 1980 (Signed December 9, 1980) December 1980 January 29, 1981 January 1981 February 5, 1981 February 1981 March 18, 1981 March 1981 June 26, 1981 April 1981 June 26, 1981 May 1981 June 26, 1981 June 1981 July 9, 1981 July 1981 (Signed August 5, 1981) August 1981 November 4, 1981 September 1981 November 4, 1981 October 1981 January 3, 1982 November 1981 January 3, 1982 December 1981 January 3, 1982 January 1982 February 14, 1982 February 1982 April 9, 1982 March 1982 April 9, 1982 April 1982 May 6, 1982 May 1982 June 4, 1982 June 1982 July 12, 1982 (Petitioner's Exhibit 1) The Respondents were placed on notice, both written and oral, of the lateness of filing the affidavits of cases embalmed and bodies handled. A review of Petitioner's Exhibit 1, the affidavits of cases embalmed and bodies handled, reflects that between July 1979 and September 1979, the affidavits were signed by Elliot C. Bruton as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge. Between October 1979, and March 1980, James Williams signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the licensed funeral director in charge and Williams was the licensed funeral director in charge of another establishment. Between the dates of April 1980, and July 1980, Respondent Anderson signed the affidavits of cases embalmed and bodies handled as the funeral director in charge when the evidence demonstrates that Respondent F.B. Stone was the funeral director in charge and Respondent Anderson was employed as the funeral director in charge during this same time period at a Lake Wales funeral home. Respondent Anderson informed an investigator for the Department of Professional Regulation that affidavits for the months of April through July were signed by him and submitted based upon the request of a previous Executive Director of the Board of Funeral Directors and Embalmers. However, Respondent Anderson also informed the investigator that after submitting the affidavits he remembered that the affidavits were incorrect in certain material respects as to the embalmer, but Respondent Anderson has never attempted to amend the affidavits. While the affidavit for September 1980, lists E. Marion Evans as the embalmer and the funeral director in charge, by letter dated October 7, 1980, the Respondent Evans informed the Board that he was the funeral director in charge as of October 1, 1980. On or about November 1981, the Respondent funeral establishment amended its exterior sign to delete the name of Respondent F.B. Stone as the funeral director in charge and display instead the name of the actual full-time funeral director in charge, at that time, Respondent Larkins. In late March 1981, Dessie Alexander's son, Alfred Alexander, died and Mrs. Alexander made arrangements through Respondent funeral establishment to have her son buried. She called the Respondent funeral establishment and left word for Raymond Gordon to call her back. Raymond Gordon then called her and she told him she wanted to release her son's body to him. Raymond Gordon then came to Dessie Alexander's home and asked her to sign a release paper so that he could pick up the body at the morgue, which she signed. Raymond Gordon called her later and asked her to come to the Respondent funeral establishment to make funeral arrangements. She and her family arrived at the Respondent funeral establishment and, with the assistance of Raymond Gordon, chose a funeral casket. Raymond Gordon took the family to the cemetery to purchase a cemetery lot for the burial. At the Respondent funeral establishment, Raymond Gordon assisted the family in determining the exact funeral arrangements necessary. Marion Evans, although present at the funeral establishment building at certain times, was not involved in the formulation of the funeral arrangements and did not act in a supervisory capacity over Raymond Gordon. Raymond Gordon wrote the funeral purchase contract, and after determining and itemizing the charges, had the family sign the contract. At the funeral service of Alfred Alexander at a local church, Raymond Gordon and Rosalyn Gordon were present, with Ms. Gordon making the payments to the pianist and minister while Raymond Gordon coordinated the funeral services. Respondent Evans was not involved in conducting the funeral service of Alfred Alexander. During this time period, Respondent Evans was the funeral director in charge of the Respondent funeral establishment. Thelma Collins utilized the Respondent funeral establishment on April 29, 1981, when her son, Anthony Bethea, died. Ms. Collins spoke with Raymond Gordon and then he, Stanley Larkins and another unidentified person came to her home. Raymond Gordon spoke with Ms. Collins at her home. At this time, Ms. Collins and Raymond Gordon discussed picking up the body, the time of death and other information concerning the deceased. Ms. Collins' funeral purchase agreement, Petitioner's Exhibit 4, was executed at the Respondent funeral establishment and was drafted, discussed and explained by Raymond Gordon to Ms. Collins when no other employees or agent of the Respondent funeral establishment was present. The funeral service was conducted at a local church and Raymond Gordon, Rosalyn Gordon and an unlicensed workman for the Respondent funeral establishment attended. Ms. Collins does not remember the presence of Respondent Larkins at the funeral service. Marie Butler's sister, Cora Evans, died in January 1980, and the Respondent funeral establishment handled the funeral arrangements and services. Raymond Gordon arranged the funeral service, determined prices and contractual terms and conditions, assisted in determining the arrangements to be made for the funeral service, and conducted and directed the funeral services at the church and grave site. In June 1980, when Respondent Larkins was the registered funeral director in charge of the Respondent funeral establishment, Marie Butler's brother died. Raymond Gordon again personally handled all the funeral arrangements and services by arranging the funeral service, determining prices and contractual terms and conditions, assisting in determining the arrangements to be made for the funeral service, and conducting and directing the funeral services. Respondent Larkins was physically present during most of these activities but did not directly supervise the arrangements of the funeral services. Virgilio O'Farrell died on May 11, 1981, during the time that Respondent Larkins was the funeral director in charge of Respondent funeral establishment. Gail Blackman arranged the funeral services for Mr. O'Farrell through Respondent funeral establishment. Ms. Blackman did not recall dealing with Respondent Larkins in arranging the funeral services through Respondent funeral establishment, but dealt instead with two unknown men from the Respondent funeral establishment. Respondent Larkins testified that during his employ at Respondent funeral establishment, April 1980 through the present, he has been the only licensed funeral director representing the Respondent funeral establishment. Respondent Larkins remembered the Thelma Collins' transaction. On this occasion as well as others, Raymond Gordon was present but Larkins did most of the talking regarding the funeral arrangements. He remembered this particular case because it was the first funeral arrangement he handled in Progress Village. The affidavits of cases embalmed and bodies handled were late in being properly filed due to the fact that Raymond Gordon was acting as the courier of the affidavits and he failed to timely post the same.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered placing the Respondents Larkins, Evans, Anderson, Stone and Stone Funeral Home on reporting probation for a period of two years and imposing an administrative fine of $750 per Respondent. During the probationary period, the Respondents should be required to regularly certify to the Board that they are complying with all requirements of Chapter 470, Florida Statutes in a timely and accurate manner. DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1981.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Michael W. Thomas has been a licensed funeral director and embalmer in the state of Florida, having been issued license number FE0003256. In November of 1993, Richard Hector was extremely ill and dying at A Better Way in Christ Mission in Ft. Pierce, Florida, a homeless shelter for men where he had lived and worked. In his final days, he was attended by a hospice agency. The Mission employees summoned Lena Cohens, Hector's sister, to travel from New York where she lived to Ft. Pierce to be with her brother. The St. Lucie County Department of Human Services maintains a rotation list for the funeral homes in the area to be responsible to care for the remains of indigents. Respondent was the designated business for the month of November, 1993. Under local ordinances, if there is no next of kin or if the next of kin files for indigency, the County will determine if the death is a County case and eligible for payment of burial expenses by the County. On November 15, 1993, at 2:40 p.m., Hector died at the Mission. The hospice employees advised the Mission employees that hospice would make arrangements to have his remains transported to a funeral home, and a Mission employee went to the motel where Cohens was staying to bring her back to the Mission. Someone contacted Respondent who dispatched a removal service, Tri- County Mortuary Services, to pick up the body of Hector at the Mission and transport it to Thomas & Sons Funeral Home. On November 16, 1993, Lena Cohens, Hector's sister, and Libby Piersall, one of the directors of the Mission and a friend of Hector, went to Thomas & Sons Funeral Home to make funeral arrangements. They took with them clothes for Hector to be used for his viewing and his burial. Respondent's mother, Eliza Thomas, was present at the funeral home when they arrived, and Respondent was not. Cohens and Piersall identified themselves to Respondent's mother and told her why they had come. They said they wanted a viewing of Hector for family and friends. Eliza Thomas told them that Hector would not need any clothes because they would just dig a hole, put the body in a box, and put the box in the ground. Cohens and Piersall became very upset at Respondent's mother's explanation of how the body would be handled and left the funeral home without authorizing Thomas & Sons Funeral Home to perform any services. Specifically, there was no discussion regarding embalming the body. Cohens and Piersall returned to the Mission and told Chuck Kramer, a Mission employee, what had happened at Thomas & Sons Funeral Home. Cohens told Kramer she wanted a different funeral home to care for her brother's remains. Kramer contacted Buddy Hobbs at Haisley-Hobbs Funeral Home and requested that he take over the arrangements so they could be handled in a better manner and so the family could have a viewing. Based upon what he was told, Hobbs advised Kramer that he could not do anything because the County would take over the arrangements. Hobbs explained to Kramer about the County's rotation list and that Thomas & Sons Funeral Home was on the list for November. The following morning, Piersall and Cohens went to the County's Department of Human Services to apply for County benefits for an indigent funeral. While they were there, Kramer began going through Hector's belongings at the Mission. Kramer found a bank statement and bank book showing that Hector had over $1,300 in the bank. As soon as Piersall and Cohens returned to the Mission, Kramer told them about the bank account. They again telephoned Hobbs, told him how much money Hector had, and Hobbs told them that he would make the arrangements for Hector's funeral for that amount of money. He made an appointment with them for 1:00 that afternoon, November 17. Cohens, Piersall, Kramer, and Reverend Ted Rice from the Mission went to the 1:00 appointment with Hobbs. Hobbs contacted Petitioner for guidance on how to handle the situation and was advised that he should prepare a release to be taken to Thomas & Sons Funeral Home. Hobbs prepared a release directed to Thomas & Sons Funeral Home which read as follows: I, LENA COHENS, sister of RICHARD HECTOR, Deceased, hereby authorize the release of the remains of my brother, RICHARD HECTOR, to Haisley-Hobbs Funeral Home of Ft. Pierce, Florida. The release was signed by Lena Cohens, witnessed by Libby Piersall and Chuck Kramer, and notarized. Cohens, Piersall, Kramer, Rice, Hobbs, and Victor Hankins, an employee of Haisley-Hobbs, then went to Thomas & Sons Funeral Home with the release to pick up the body of Richard Hector. When they arrived there, only Eliza Thomas was present. Hobbs told her who he was and then introduced everyone else. He gave her the release and advised her that they were there to pick up Hector's body. She told him she would not release the body and telephoned Respondent who came to the funeral home. When Respondent arrived, Hobbs gave Respondent the release. Respondent advised Hobbs that he would not release the body until after someone paid him $420 to reimburse him for transporting and embalming the body. Hobbs asked Respondent if Respondent understood what he was saying and that Respondent could not hold the body as ransom. Respondent told Hobbs that Hobbs could call it whatever he wanted but that Respondent would not release the body until after he was paid. Respondent then told the group to leave his place of business. Respondent's refusal and stated reason were heard by Piersall, Rice, and Kramer. Respondent stated no other reason for his refusal to release the body. Specifically, Respondent did not say anything about his belief that Hector was a County case. The group left Thomas & Sons Funeral Home without Hector's remains. On November 18, Hobbs called Petitioner again to advise what had happened. One of Petitioner's attorneys called Hobbs back and advised that the attorney had spoken to Respondent and that Respondent would be calling Hobbs to come and pick up the remains. Instead, Respondent telephoned the Mission and told Kramer to have Haisley-Hobbs come and pick up the body. Kramer then called Hobbs, and Hobbs sent a driver and another employee of Haisley-Hobbs to Thomas & Sons Funeral Home to pick up the body. When they arrived, Respondent refused to give them the body and told them that he would deliver the body to Haisley-Hobbs instead. Hector's body arrived at Haisley-Hobbs later that same day. In a prior administrative proceeding, Petitioner filed an administrative complaint against Respondent on April 4, 1989, alleging, inter alia, that Respondent had refused to promptly surrender the custody of a dead body upon the express order of the legally authorized person, and Respondent requested a formal hearing regarding that administrative complaint. That prior matter was subsequently referred to the Division of Administrative Hearings where the matter was scheduled for formal hearing. After the parties engaged in discovery, that administrative complaint was referred back to the probable cause panel of the Board of Funeral Directors and Embalmers for re-consideration. In that prior action, the probable cause panel determined that although Respondent had violated the statutory requirement to surrender properly the custody of a dead human body upon the express order of the legally authorized person, the circumstances surrounding that refusal dictated that that administrative complaint be dismissed with only a letter of guidance issued to Respondent. That letter of guidance, dated November 22, 1989, and sent to Respondent at Thomas & Sons Funeral Home, became a permanent record in Respondent's licensure file. That letter of guidance does not, however, constitute prior disciplinary action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and requiring Respondent to pay an administrative fine in the amount of $1,000 by a date certain. DONE and ENTERED this 13th day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Donnette Reid, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Victor John E. Vale, II, Esquire 205 South Second Street Ft. Pierce, Florida 34950 Susan Foster, Executive Director Department of Business and Professional Regulation Board of Funeral Directors and Embalmers 1940 North Monroe Street Tallahassee, FL 32399-0754 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
