Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 470, Florida Statutes. At all times material to this proceeding, Respondent was a licensed funeral establishment in the State of Florida known as Marion Community Funeral Chapel (Community Chapel), located at 917 South Delaney Avenue, Avon Park, Florida, and issued license number FH 0001398. At all times material to this proceeding, Eloise Marion (Marion) was the sole owner of Community Chapel. Eddie J. Wyche, a 60 year old male, died while a patient in the care of Florida Hospital, Avon Park, Florida. A death certificate issued on March 29, 1995, shows the time of death to be 2:00 p.m. on March 23, 1995. Jannie L. Wyche, wife of Eddie J. Wyche (deceased), was present at the hospital at the time of Eddie Wyche's death. Jannie L. Wyche (wife) was the "legally authorized person" to direct the disposition of the decedent's body. Hospital officials advised the wife that the hospital did not have the necessary refrigeration facility to hold the dead body and that the body had to be removed immediately. Thereafter, the hospital furnished a release form for the wife to sign which legally allowed Community Chapel to remove the body of the deceased from the hospital and to transport the body to Community Chapel's place of business. Later on that same day, March 23, 1995, Marion, along with Leroy Brown, transported the body to Community Chapel. In the early evening of March 23, 1995, Marion went to the deceased mother's home to inquire about making funeral arrangements but was advised that the wife would be handling the funeral arrangements. Later on that same evening, Marion went to the wife's home to make an appointment to discuss the funeral arrangements. After Marion advised the wife that she had picked up the body, the wife told Marion "do what you have to do" or words to that effect. In response to the wife's inquiry of getting together to "make arrangements", Marion advised the wife that Marion did not have time at the moment to discuss the funeral arrangements due to a prior appointment, and because of a "viewing", which was scheduled for Friday, March 24, 1995, and a "burial" scheduled for Saturday, March 25, 1995, she would not be available until sometime between 3:00 p.m. and 6:00 p.m. on Saturday, March 25, 1995. No specific time for an appointment to discuss the "arrangements" was agreed upon at this time. Because there was nothing further, other than embalming, which needed to be done to the body, Marion interpreted the wife's response of "do what you have to do" as the wife's verbal permission to proceed with embalming the body. Marion proceeded with having the body embalmed. Although the wife and Cheryl Johnson testified that the wife did not make such a statement, I find Marion's testimony to be more credible in this regard. Previously, Marion had previously handled the arrangements for the funerals of the wife's mother and sister, and it does not seem logical that Marion would have moved forward with the embalming body without some indication from the wife to do so. Not completely satisfied with Marion's response about a time for making "arrangements", the wife, on the advice of her sister, decided to engage another funeral establishment to handle the funeral. Several hours later, the wife contacted Marion and advised Marion that she had decided to engage another funeral establishment to handle the funeral arrangements. At this time, the wife neither advised Marion as to the name of the other funeral establishment that was to handle the funeral arrangements nor give Marion any express order for the release of the body. Later on in the evening of March 23, 1995, the wife telephoned Ed Harrell in regards to his funeral establishment handling the funeral arrangements for her late husband. Harrell advised the wife to contact and advise Marion of her decision, and that he would come by Marion Community the next day to pick up the body. After talking with the wife, sometime around 10:00 p.m. on March 23, 1995, Ed Harrell telephoned Marion to advise her of the wife's decision to engage his establishment in handling the funeral arrangements. Harrell also told Marion that he had a release form to pick up the body and would be around on Friday, March 24, 1995, to pick-up the body. Upon inquiry by Harrell, Marion advised Harrell that the family owed for transporting and embalming the body. There is no evidence that a release form was presented to Marion at any time before, or at the time, the body was released to Harrell by Marion. Sometime on Friday, March 24, 1995, the wife advised Marion that Ed Harrell would be handing the arrangements for the funeral and would be by to pick up the body. At this time, Marion advised the wife that the wife owed Marion for transporting and embalming the body, and that "someone got to pay me for transporting and embalming." The amount owed was not discussed at this time. Marion did not tell the wife that the body would not be released unless, and until, the amount owed was paid. After the wife talked with Marion, on Friday, March 24, 1995, Ed Harrell attempted to visit Marion in regards to picking up the body, but Community Chapel was closed. Ed Harrell then went to the wife's home. Later that day, Harrell contacted Marion by telephone, and was informed that there was a charge of $90.00 for transporting the body and $375.00 for embalming the body which had to be paid. Marion did not tell Ed Harrell the body would not be released unless, and until, the amount was paid. On each occasion (at least three) when Harrell called Marion about picking up the body, Marion insisted that she must be paid for the embalming (there was no dispute about the transport fee), and each time Marion was told by Harrell that the wife would not pay the embalming fee. And each time that Marion was told that the wife would not pay the embalming fee, Marion would hang up the telephone. However, the more credible testimony is that Marion did not tell Harrell that the body would not be released unless, and until, the amount owed was paid. Apparently, Harrell considered Marion's hanging up the telephone as a refusal to release the body without first being paid. Although it may have been frustrating, Marion's hanging up the telephone when told she was not going to be paid, does not rise to the level of refusing an express order to release the body. On Saturday, March 24, 1995, Marion released the body to Ed Harrell, and at the same time, Respondent was paid $465.00 for services rendered. Marion assumed, based on the wife instructing Marion to "do what you have to do", that she had oral permission from the wife to embalm the body of the deceased, However, Marion neither attempted, nor was she given, written permission or authority from the wife to embalm the body of the deceased. Other than advising Marion that Ed Harrell would be by to pick up the body, there is no evidence that the wife gave Marion an express order, requiring Respondent to promptly surrender the body to Ed Harrell. Likewise, there is insufficient evidence to show that Marion refused to release the body unless, and until paid, after being given an express order by Harrell, on instructions from the wife, to release the body, notwithstanding the testimony of Ed Harrell which I find lacks credibility
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the disciplinary guidelines set out in Rule 61G8-30.001(4), Florida Administrative Code, it is recommended that the Board enter a final order finding that Respondent did not violate Section 470.036(1)(p), Florida Statutes (1993), and dismissing Count I of the Administrative Complaint. It is further recommended that the Board finds that Respondent violated Section 470.036(12)(t), Florida Statutes (1993), and that such violation was a "technical violation" requiring only a written reprimand and an assessment of an administrative fine in the amount of Five Hundred Dollars. RECOMMENDED this 26th day of June, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5940 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Department's Proposed Findings of Fact. Proposed findings of fact 1-8, 10-14, 16 and 18 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed finding of fact 9, as stated, is not a finding of fact but a conclusion of law. Proposed findings of fact 15 and 17 are not supported by evidence in the record. As to proposed finding of fact 19, Respondent was paid $465.00 which was calculated as $375.00 for embalming and 90.00 for transporting. There is an error in calculating the total amount due on Department's exhibit 4 since $375.00 plus $95.00 equals $470.00, not $465.00 as indicated on exhibit 4. The evidence shows that Respondent was paid $465.00 at the time the body was released but the release of the body was not condition upon the payment. Proposed findings of fact 20 and 21 are neither material nor relevant. Respondent's Proposed Findings of Fact. Respondent elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 7, Suite 728 Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830 R. E. D. (Address of Record)
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
