Findings Of Fact Respondent, Florida Mortuary Services (FMS), is a licensed funeral establishment at 1495 N.W. 17th Avenues Miami, Florida, having been issued license number FH 661 by petitioner; Department of Professional Regulations Board of Funeral Directors and Embalmers (Board). Respondent, William F. Richardt, is a licensed funeral director and embalmer having been issued license numbers FE 0001490, EM 001490 and FD 0001334 by petitioner. He has been a licensed funeral director since 1967 and is owner and funeral director in charge of the funeral establishment. Respondent, Robert Healy Jr., is also a licensed funeral director and embalmer having been issued license numbers FE 000650, EM 000650 and FD 000500 by petitioner. At all times relevant hereto Richardt and Healy were employees of FMS. A preneed contract is defined by Subsection 639.07(6), Florida Statutes, as "a contract to furnish funeral merchandise or service in the future." A funeral homed or its agents and employees is authorized to sell preneed funeral contracts if a certificate of authority is obtained from the Department of Insurance (Department). In early January 1964, the Department received an anonymous complaint by mail that FMS was offering preneed burial service contracts without having first obtained a certificate of authority. On January 27, 1984, the Department issued a letter to FMS reciting that certain information concerning the sale of preneed contracts by FMS had been brought to its attention, that Department records indicated that FMS had no license under Chapter 639, and that if the allegations were true, FMS must cease and desist from such activities until the firm complied with the law. The Department also furnished FMS with a copy of an application and the applicable law. On February 2, 1984, counsel for FMS advised the Department by letter that he had instructed his client to cease and desist such activities, and that an application to sell preneed contracts would be forthcoming. In May 1964 FMS sought the services of Funeral Services, Inc. (FSI), a holding company of funeral directors and others formed to facilitate the sale of preneed contracts and to aid funeral directors in obtaining licensure under Chapter 639. However, FSI declined to act as agent for FMS because of the earlier cease and desist order issued by the Department and because it believed that FMS had continued to advertise the availability of preneed contracts after that order had been issued. In its proposed application filed with FSI, FMS stated that no contracts for preneed funeral services had been entered into prior to its licensure application being filed. It did so on advice of legal counsel since it did not consider the services previously offered to be preneed contracts within the meaning of Chapter 639. Instead it construed them to be "pre-planning agreements" and not subject to the provisions of Chapter 639. An application was then filed by FMS with the Department on August 22, 1984. After review and processing, a certificate of authority was issued by the Department effective October 24, 1984. In its application FMS certified that there were no preneed contracts in existence which predated the October 24, 1984 registration date. Through complaints of unknown origin; the activities of respondents were brought to the attention of petitioner, who issued an administrative complaint on July 15, 1985. That prompted the instant proceeding. Records of FMS confirms and respondents conceded that during the period from 1976 through 1983, Richardt as the owner and funeral director in charge of the funeral homed and the funeral homed entered into agreements to provide funeral services and merchandise with at least 130 individuals, including the 113 listed in the administrative complaint. The agreements with consumers reflected that FMS was providing "Services for Preneed" for the particular consumer. They specifically referred to FMS providing professional funeral directing services; provision for funeral home facility use, transportation, funeral merchandise and cash advances for the funeral at an agreed upon price. The agreement itself read as follows: The foregoing contract has been read by (to) me, and I hereby acknowledge receipt of a copy of same and agree to pay the above funeral account and such additional services and merchandise as ordered by me on or before 19 . The liability hereby assumed is in addition to the liability imposed by law upon the estate and others, and shall not constitute a release thereof. The contract then contained a signature of the customer and the funeral director. Those contracts were entered into and signed by Healy or Richardt on behalf of FMS. Prior to October 1984, Richardt and FMS advertised the availability of a preneed trust plan through local telephone directories, business signs and radio advertising. In addition, approximately 20,000 advertising flyers were mailed to Broward County residents. These flyers stated that by signing up for the plan a consumer could avoid future price increases. They also stated that an installment payment plan was available, and that all monies received by FMS would be placed in a trust account at a banking institution in Miami. It also required a minimum payment of $100 in the form of a check or money order made payable to Florida Mortuary Services. Although the contract itself did not provide for refunding of the monies, the advertising flyer stated that the contract could be cancelled by the consumer. According to respondents, it was the intent of the contract to provide a guarantee of provision of the stated funeral services once the customer executed the agreement and made the required minimum down payment of at least $100. After an agreement was executed an account was set up at Amerifirst Federal in Miami with the following designation: "Florida Mortuary Services, in trust for 'Name of Customer'." Monthly bank statements showing the activity on each account were thereafter sent to FMS. If a person holding a preneed contract died, Richardt would present the banking institution with the death certificate and receive all monies in the account, including interest collected to date. Based upon the foregoing findings, it is found that the "agreements" sold or offered to be sold by respondents were in actuality preneed funeral contracts which cannot be sold unless approval from the Department of Insurance is obtained. After receiving the Department of Insurance certificate of authority in October, 1984, Richardt and FMS took all preexisting contracts and incorporated them into "new" contracts utilizing the contract format approved by the Department of Insurance. They were given new dates beginning with the date of licensure (October 24, 1984) and continuing through the end of the year. By doing so, FMS and Richardt made it appear that the contracts were entered into subsequent to the date of licensure. When the Department of Insurance conducted its annual audit of the insurance funds, it was informed by FMS that the contracts existed as of the new dates indicated on the contracts. The Department was never told about the original contracts, or the fact that such contracts were revised to meet the new Department format. Indeed, in its sworn annual statement filed with the Department, FMS represented that the first contract was entered into on October 24, 1984, and the other 129 contracts were entered into between that date and December 31, 1984. According to Richardt, FMS did not change its method or manner of transacting preneed business after October 1954, except to utilize the new contract form required by the Department. FMS continued to use the same method to create and make withdrawals from the trust account, and to provide the same contractual guarantees to the customer. Respondents maintain that the preneed agreements were just that and were not the contracts contemplated by Chapter 639. However, this position conflicts with the testimony of F. James Wylie, a Florida funeral director and administrative officer of FSI whose testimony is accepted as being more persuasive on the issue. According to Wylie, the contracts and advertising used by FMS prior to October 24, 1984, constituted the sale of preneed funeral service contracts. Wylie also opined that by engaging in this activity without a license, a funeral director was guilty of misconduct in the practice of funeral directing. Phillip S. Bennett, Jr., a preneed burial examiner for the Department of Insurance, corroborated Wylie's opinion and opined that FMS's activities constituted the sale and offering for sale of preneed contracts without licensure.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that respondents be found guilty as charged in the administrative complaint, and the licenses of respondents Florida Mortuary Services and William F. Richardt be suspended for two years with said suspension stayed and their licenses placed on probation for five years, subject to such terms and conditions as the Board deems appropriate. The license of respondent Robert Healy, Jr., should be placed on probation for two years. DONE and ORDERED this 17th day of February 1986, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 17th day of February 1986.
The Issue Whether Respondent's personal and operating licenses should be suspended, revoked, or withdrawn.
Findings Of Fact The State Board of Funeral Directors and Embalmers charged Respondent, Elmer E. Hewitt, as follows: The Respondent, Elmer E. Hewitt, violated Section 470.30(4), Florida Statutes, and Rule 21J7-08 of the Rules of the State Board of Funeral Directors and Emba1mers for Florida in that he permitted Evergreen Mortuary to be operated without the full charge, control and supervision of an individually licensed funeral director and licensed embalmer, and in that he suffered Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embaliningby ban improper use of his license, to wit by representing himself to be the regularly employed licensed funeral director and embalmer in charge of such establishment when he was not so employed but rather employed full time as a social worker in Miami, Dade County, Florida; The Respondent , Elmer E. Hewitt, violated Section 470.12(1)(k), Florida Statutes, in that as a licensed embalmer he violated the provisions of Chapter 470, Florida Statutes, and in particular, Section 470.30(4). The Respondent, Elmer E. Hewitt, violated Section 470.l2(2)(p), Florida Statutes, in that as a license funeral director he violated provisions of Chapter 470, Florida Statutes, and in particular Section 470.30(4). The Respondent, Elmer E. Hewitt, is listed in the records of the State Board of Funeral Directors and Embalmers of Florida as a licensed funeral director and embalmer regularly employed in charge of Evergreen Mortuary located at 325 Julia Street, Key West, Florida. Mr. Hewitt executed an affidavit on a formal application supplied by the Board stating that he was a licensed funeral director and embalmer regularly employed and in charge of the Evergreen Mortuary. Respondent also executed an affidavit in which it appears that he is a funeral director of Evergreen Mortuary and the only one licensed embalmer and funeral director employed by that establishment on a regular and full time basis. Mr. Hewitt is employed as a Social Worker I for the Comprehensive Alcohol Program, 1400 Northwest Tenth Avenue, Miami, Florida, and maintains a residence in Miami, Florida. The Board contends: (a) That the establishment operating license and the accompanying affidavits executed by Elmer E. Hewitt were false in that Mr. Hewitt was not and is not the licensed funeral director regularly employed in charge of Evergreen Mortuary and that he is not employed by Evergreen Mortuary on a regular and full time basis at his location in Key West, Florida, but rather is employed full time in Miami, Florida; That Mr. Hewitt acted as agent for or in behalf of or in furtherance of the interests of the Respondent Evergreen Mortuary in obtaining an establishment operating license; That he suffered the owners of Evergreen Mortuary to pretend or represent that it was legally qualified to perform funeral directing or embalming by improper use of his license; That Mr. Hewitt was not employed and in charge of Evergreen Mortuary within the meaning of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent, Elmer E. Hewitt, violated Sections 470.30(4), 470.12(1)(k), and 470.12(2)(p), Florida Statutes; That Respondent, Evergreen Mortuary, violated Section 470.12(4)(a), Florida Statutes, in that Elmer E. Hewitt, a person connected with Evergreen Mortuary as am employed agent, committed violations while acting as agent for or in behalf of or in furtherance of interests of Evergreen Mortuary. Respondent, Elmer E. Hewitt, contends: That he in fact has a residence in Key West, Florida; That he devotes his full time as funeral director and emba1mer to the business of Evergreen Mortuary; That although he is employed on a full time basis at the Comprehensive Alcohol Program, he fulfills his obligations to that job at night and on weekends and other times when he is not performing his duties as a full time employee of Evergreen Mortuary. The Hearing Officer further finds: That under the terms of Respondent Hewitt's employment for the Comprehensive Alcohol Program in Miami, Florida, he is required to work a 40-hour week, but there was no evidence submitted to show' that Respondent Hewitt does in fact work a 40- hour week in his employment in Miami, Florida; The evidence shows and it is found that Elmer E. Hewitt is a full time funeral director and embalmer within the requirements of Chapter 470, Florida Statutes, and the Rules of the State Board of Funeral Directors and Embalmers of Florida; That Respondent Hewitt is employed by Evergreen Mortuary on a regular basis as required by the statutes and the Rules of the State Board of Funeral Directors and Embalmers; That air transportation and telephone service from Miami to Key West provide current information and valid transportation so that the business of Evergreen Mortuary can be conveniently performed even though Respondent Hewitt may be in Miami, Florida.
Recommendation Dismiss the proceedings for the suspension of Elmer E. Hewitt, licensed funeral director and embalmer and dismiss the petition for revocation of the operating license of Evergreen Mortuary. DONE and ORDERED this 12th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth Norrie, Esquire Counsel for Petitioner Robert I. Spiegelman, Esquire Counsel for Respondent =================================================================
The Issue The issues are as follows: (a) whether Respondent violated Section 470.036(1)(t), Florida Statutes, by embalming a deceased human body without obtaining permission from a legally authorized person; (b) whether Respondent violated Section 470.036(1)(p), Florida Statutes, by refusing to promptly surrender custody of a dead human body upon the express order of the legally authorized person; and if so, (c) what penalty should be imposed.
Findings Of Fact Respondent is the licensed funeral director in charge for Marion Graham Mortuaries in Jacksonville, Florida. Catherine Gillis died at her home in Jacksonville, Florida, on August 6, 2000. Ms. Gillis was 70 years old at the time of her death. Patricia Stokes, Ms. Gillis's daughter, called 911 when she found her mother on the kitchen floor. Deputy Michael Williams from the Jacksonville Sheriff's Office responded to the call. Deputy Williams was unable to contact Ms. Gillis's doctor, Dr. David Badolato. The on-call physician in Dr. Badolato's office refused to sign off on the death certificate. Therefore, Deputy Williams called the Duval County Medical Examiner's Office, making contact with Deanna Webber, a forensic investigator. After Ms. Webber spoke to the medical examiner, she called Deputy Williams back. She told him that Ms. Gillis's body could be transferred to the funeral home of the family's choice but the body must be held until the personal physician made a commitment to sign the death certificate or the medical examiner inspected the body and signed the death certificate. Ms. Stokes, in consultation with her church sister, Ms. Theresa Williams, chose Respondent's funeral home to receive the body on the evening of August 6, 2000. Deputy Williams then contacted Respondent's funeral home, specifically stating that the body was to be held for inspection by the medical examiner in case the personal physician did not agree to sign the death certificate. River City Removal Service transported Ms. Gillis's body to Respondent's funeral home at approximately 7:30 p.m. on August 6, 2000. Even though Ms. Stokes had approved this transfer, she mistakenly believed that the medical examiner's office had taken the body to the morgue. On Monday, August 7, 2000, Ms. Stokes called the medical examiner's office to inquire about an autopsy on her mother's body and to instruct its removal to an establishment other than Respondent's funeral home. After the call, Ms. Stokes understood that an autopsy would not be performed at public expense and that Ms. Gillis's body was already at Respondent's funeral home. In the meantime, Willie Mae Albany arrived for work at Respondent's funeral home at approximately 9:00 a.m., on August 7, 2000. At that time, Ms. Albany's job included performing clerical duties. Respondent arrived at the funeral home about 10:30 a.m., on August 7, 2000. He knew there were three bodies that needed to be embalmed that day: (a) Dorothy Green, whose body had been received on Sunday, August 6; (b) Leonard Hopkins, whose family had signed a release and permission to embalm on Saturday, August 5; and (c) Jimmie Simpson, whose body had been received on Monday, August 7. Respondent was aware when he arrived at the office that there was no authorization to embalm Ms. Gillis. He instructed Ms. Albany to contact Eric Fleming, a freelance trade embalmer, to come in to embalm Ms. Green, Mr. Hopkins, and Mr. Simpson. Mr. Fleming was not an employee of Respondent's funeral home. Instead, he was paid by the case. Ms. Albany left several telephone messages for Mr. Fleming advising him about the three bodies that needed to be embalmed. She did not know exactly when he came to work, but she transferred a telephone call to Mr. Fleming in the embalming room at the funeral home about 11:30 a.m. Ms. Albany also contacted Dr. Badolato's office on the morning of August 7, 2000. After that telephone call, Ms. Albany understood that Dr. Joedrecka Brown would sign the death certification for Ms. Gillis. Ms. Albany then typed an Application for Burial-Transit Permit for Ms. Gillis. This form advises the county health department that someone has died and that a death certificate is forthcoming. Ms. Albany placed the burial-transit permit application on the counter where Respondent usually picks up the typed forms. Respondent signed the form on August 7, 2000, even though his signature on the form was dated August 9, 2000. Because her mother's body was already at Respondent's funeral home, Ms. Stokes decided to make funeral arrangements with Respondent instead of removing the body to another establishment. Thus, Ms. Stokes and her church sister, Ms. Williams, went to Respondent's funeral home around 4:00 p.m., on April 7, 2000, for an appointment with Respondent. Ms. Albany greeted Ms. Stokes when she arrived at Respondent's funeral home. Ms. Albany advised Ms. Stokes that Respondent was delayed and that he wanted her to begin filling out the paperwork. Ms. Albany then took Ms. Stokes and Ms. Williams to a conference room. Ms. Albany had a file containing the necessary paperwork. Ms. Albany sat with Ms. Stokes, identifying the documents in the file as she handed them to Ms Stokes. One of the documents in the file was an Authorization to Embalm form. After Ms. Albany explained the purpose of the form, Ms. Stokes signed it without asking any questions. Ms. Albany also presented Ms. Stokes with a Disclosure/Disclaimer form, a death certificate application, an arrangements form, and a newspaper release form. Ms. Stokes filed out these forms and signed each one that required her signature except for the funeral purchase contract. Ms. Albany did not discuss the funeral purchase contract with Ms. Stokes. Ms. Albany stayed with Ms. Stokes and Ms. Williams in the conference room for about 15-20 minutes. After leaving the conference room, Ms. Albany noticed that Respondent had arrived at the funeral home. Respondent arrived at the funeral home sometime before 4:40 p.m. Respondent first checked the reception counter where he found the completed burial-transit permit for Ms. Gillis. At that point, he knew that Ms. Gillis's body could be embalmed and that the family could proceed with the funeral service arrangements. Respondent began his meeting with Ms. Stokes and Ms. Williams at approximately 4:40 p.m. During the conference, Respondent reviewed all of the forms with Ms. Stokes, including her signed Authorization to Embalm form. In discussing the funeral arrangements, Ms. Stokes informed Respondent that she definitely wanted a formal visitation for her mother. Respondent knew that the embalming process needed to begin as soon as possible in order for the body to be presentable for formal visitation. The greater weight of the evidence indicates that Respondent, and not Ms. Albany, escorted Ms. Stokes and Ms. Williams to the selection room to view caskets at approximately 5:00 p.m. Respondent left Ms. Stokes and Ms. Williams in the selection room and went next door to the embalming room to speak to Mr. Fleming. Mr. Fleming had just completed the embalming process of Mr. Hopkins. Respondent directed Mr. Fleming to begin embalming Ms. Gillis because her daughter had given permission. Respondent returned to the selection room 30 seconds later. Respondent proceeded with the embalming while Ms. Stokes was in the funeral home. He made this decision based on his knowledge that Dr. Brown would sign the death certificate, thereby releasing the medical examiner's hold on the body. He also had a written authorization from Ms. Stokes to embalm. The majority of Respondent's cases are embalmed before he obtains a signed funeral purchase agreement. Respondent, Ms. Stokes, and Ms. Williams returned to the conference room to discuss the funeral purchase contract, showing the prices for a graveside service and a church service. This discussion lasted another 30 to 45 minutes. Ms. Stokes did not sign the funeral purchase contract, in part, due to her concern about the quoted prices. She advised Respondent that she would have to consult with a relative regarding the costs of a graveside service or a church service. Before she left the funeral home, Ms. Stokes asked Respondent if he had done anything to her mother's body. Respondent replied that he had embalmed Ms. Gillis because by that time, the embalming process was more than half complete. It takes an average of one hour to one and one half hours to embalm a body. For a worst case scenario, it would take approximately three hours to embalm a body. Leonard Hopkins would have taken longer than average to embalm because he had been the subject of an autopsy. Ms. Stokes consulted with relatives upon returning home on the evening of August 7, 2000. The family decided that Respondent's prices were too high. Ms. Stokes contacted Respondent by telephone around 9:00 p.m. She instructed Respondent not to do anything else to her mother's body because she intended to retain the services of another funeral home. Ms. Stokes also wanted to know what she owed Respondent. Respondent replied that he did not have the papers in front of him but that the expenses were approximately $850 for transporting, embalming, and paperwork. Respondent did not overtly state or imply that he would not release the body until he was paid. The next morning, Tuesday, August 8, 2000, Ms. Stokes made arrangements with Toston-LaFrans Funeral Home to handle her mother's funeral. Ms. Stokes then went to Respondent's funeral home where Respondent's staff informed her that the expenses were $860. Respondent was not at the funeral home on the morning of August 8, 2000. He was not there when Ms. Stokes returned to the funeral home around 1:00 p.m. Ms. Stokes then made arrangements with Toston-LaFrans Funeral Home to have Ms. Gillis's remains removed to their facility and to pay Respondent. In the meantime, Ms. Albany advised Respondent that Ms. Stokes wanted the body moved to Toston-LaFrans Funeral Home. When Respondent could not reach Ms. Stokes by telephone, he contacted Mrs. Walker of Toston-LaFrans Funeral Home, informing her that he needed a signed release prior to the removal of the body. After that telephone call on August 8, 2000, Respondent understood that Ms. Stokes would sign a release at Toston- LaFrans Funeral Home before the body was transported. Sometime before 2:00 p.m., on August 8, 2000, the medical examiner's office confirmed that Dr. Brown would sign Ms. Gillis's death certificate. The medical examiner's office then contacted Respondent's funeral home to let them know that the hold on the body was lifted. On Wednesday, August 9, 2000, around 4:30 or 5:00 p.m., Toston-LaFrans Funeral Home called to advise Respondent that Ms. Stokes had signed a release. Respondent informed Toston-LaFrans Funeral Home that the body could be picked up anytime before the office closed at 6:00 p.m., or after that time if need be because Respondent would be working late that evening. Ms. Gillis's body was removed to Toston- LaFrans Funeral Home that evening after 6:00 p.m. Respondent paid Mr. Fleming by check on August 12, 2000, for embalming four bodies, including Ms. Gillis, on August 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of December, 2002. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Sherry Landrum, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
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 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
