The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Rolle-Tillman Funeral Home, has been a licensed funeral establishment in the State of Florida. Respondent's license number is FH 0002111. The owners of Rolle-Tillman Funeral Home, Harry Rolle and Bobby Tillman, have not been licensed by Petitioner. At times pertinent to this proceeding prior to January 1, 1995, Cleon D. Mosley, a licensed funeral director, was the funeral director in charge of Respondent. Mr. Mosley notified Respondent and the Petitioner that effective January 1, 1995, he was terminating his relationship with Respondent to become the funeral director in charge of another funeral home. Upon Mr. Mosley's departure, the Respondent continued to operate as a funeral establishment without a licensed funeral director in charge. On February 14, 1995, Reuben Rolle, Jr., died and his body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge. On February 15, 1995, James Cooper, died and his body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge. On March 7, 1995, Maggie Bullard died and her body was released to the Respondent for final disposition. Harry Rolle, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge. On March 8, 1995, Essie Thomas Bullard died and her body was released to the Respondent for final disposition. Bobby Tillman, the unlicensed co-owner of Respondent, helped plan, arrange, and take vital information in order to effectuate the final disposition of the decedent. Manker's Funeral Home, a licensed establishment, embalmed the body of the decedent, but all other services were performed by Respondent without the benefit of a funeral director in charge. On March 16, 1995, Guillermo Tejeda, an investigator employed by Petitioner, began an investigation of Respondent. On that date, Mr. Tejeda observed posted near the front door of Respondent's facilities a sign with the following inscription: Cleon D. Mosley Licensed Funeral Director This sign would lead the public to believe that Mr. Mosley was still acting as the funeral director in charge for Respondent. 1/ On March 31, 1995, three investigators and an inspector employed by Petitioner inspected the Respondent's premises. The inspector asked for the funeral director in charge, but Respondent could not make available any licensed funeral director. At the time of this inspection, the Respondent did not have on site or immediately available a sealed container of a type required for the transportation of human bodies that may be contagious as the result of disease. At the time of the inspection on March 31, 1995, the embalmed body of Essie L. Thomas was found in the preparation/embalming room of the Respondent and the cremains of Reuben Rolle, Jr., were found in a desk. Respondent failed to submit to Petitioner a required report entitled "Cases Embalmed or Bodies Handled" for the months of December 1994 through March 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and which imposes an administrative fine against Respondent in the total amount of $2,200 and places Respondent's licensure on probation for a period of three years. DONE AND ENTERED this 4th day of October, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996.
The Issue The issue in this case is whether Respondent Gary J. Faircloth violated Chapter 470, Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Gary J. Faircloth has been licensed as a funeral director and embalmer by the Board of Funeral Directors and Embalmers, holding license numbers FE 1309, E 1309 and FD 1140. Respondent Faircloth was the funeral director in charge of Community Funeral Home from December 1, 1981 to the present, pursuant to Section 470.024, Florida Statutes. At all times pertinent to this proceeding, Community Funeral Home has been licensed as a funeral establishment by the Board with George Evans, Jr., as the owner of the establishment. Evans is not and has never been licensed as a funeral director, funeral director intern, embalmer or embalmer intern by the Board. During the period that Respondent Faircloth was funeral director in charge of said establishment, Respondent has been the only funeral director and embalmer employed by the establishment. (TR 45-47, 63.) Respondent Faircloth was the funeral director and embalmer responsible for the final disposition of Debra Jean Purter, to include preparation of the required forms. Ms. Purter died in an auto accident in Perry, Florida, on January 21, 1982. Her case was referred to the medical examiner in Tallahassee, Florida. The medical examiner did not complete the medical certificate until February 2, 1982. Respondent Faircloth applied for the burial-transit permit on January 24, 1982, from George Evans, Subregistrar. Evans issued the permit on that date and also granted a five-day extension to file the death certificate. The burial-transit permit was requested timely, and the latest date for filing the death certificate was January 29, 1982. On January 26, 1982, Respondent Faircloth contacted the medical examiner and was advised that the medical examiner would complete the medical certificate. See Petitioner's Exhibit 1, Application for Burial-Transit Permit, Block 5c. The death certificate was filed with the registrar on February 10, 1982. Respondent Faircloth was the funeral director and embalmer responsible for the final disposition of O'Neatha Thomas, to include preparation of the required forms. O'Neatha Thomas died on January 17, 1982, in Perry, Florida. Her case was referred to the medical examiner in Tallahassee, Florida. A burial-transit permit was issued by George Evans, Subregistrar. From the copies, it cannot be determined when Respondent Faircloth requested the burial-transit permit from Evans. A five-day extension to file the death certificate was granted by Evans. The latest date for filing the death certificate would have been January 25, 1982. On January 22, 1982, Respondent Faircloth contacted the medical examiner and was advised by Mrs. Silver of Ketchum, Wood or Burgert that the medical certificate would be completed and mailed. See Petitioner's Exhibit 2, Application for Burial-Transit Permit, Block 5c. The temporary death certificate was filed with the county on February 15, 1982. The medical certificate was completed on March 10, 1982, and filed with the registrar on that date. George Evans, Subregistrar, was also the owner of Community Funeral Home. As subregistrar, he could issue and received death certificates and burial-transit permits. A subregistrar has ten days to file such documents with the registrar. There is no place on the form to note filing with the subregistrar. Respondent Faircloth was 14 days late filing the death certificate on Ms. Purter. Respondent Faircloth was 29 days late in filing a temporary death certificate on O'Neatha Thomas. Respondent Faircloth admitted that Evans spoke with the family of O'Neatha Thomas to determine what services they desired. Respondent was present and observed the actions of Evans from the adjoining room. Respondent Faircloth further admitted that the memorial and burial services were directed by another funeral director in his behalf.
Recommendation Having found the Respondent, Gary J. Faircloth, guilty of violating Section 470.036(1)(g), Florida Statutes, on two occasions, it is recommended that the Board of Funeral Directors and Embalmers fine the Respondent $50 for each violation, or a total of $100. Having found Respondent guilty of violating Section 470.036(1)(a), Florida Statutes, on one occasion, it is recommended that the Board suspend the license of Respondent for a period of one year. DONE and RECOMMENDED this 16th day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 16th day of December, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Gary J. Faircloth 605 North Jefferson Street Perry, Florida 32347 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Edward P. O'Dowd, Executive Director Board of Funeral Directors and Embalmers 111 Coastline Drive, East Suite 507 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
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 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
