Findings Of Fact Petitioner is the governmental agency responsible for licensing funeral home directors and embalmers. Respondent is currently licensed as a funeral home director and embalmer under license number FE 0001751. On February 5, 1993, Petitioner conducted a routine inspection of Burrell's Funeral Home (the "funeral home"). The funeral home is wholly owned by Respondent and his brother, Mr. Urey Burrell. Mr. Urey Burrell has never been licensed by the state as a funeral home director and embalmer. Mr. Urey Burrell was the only person present at the funeral home at the time of the inspection. The funeral home failed to maintain a casket price list and a copy of the current rules and inspection criteria. All of those documents were requested by Petitioner's inspector, and none of them were made available to the inspector. Respondent did not display his current Funeral Director in Charge license in a conspicuous place. The license was hidden behind other documents on the wall. Respondent signed blank contracts for services and left them at the funeral home for use in his absence. A forged license purporting to license Mr. Urey Burrell as a funeral home director and embalmer was conspicuously displayed on the wall of the funeral home. The operating table in the preparation room was broken and rusty. The table was broken because Mr. Urey Burrell had just embalmed a lady who was so large that she broke the table. The broken operating table was reinforced on two sides with unfinished wood. Unfinished wood is a porous surface. An operating table must be nonporous in order to avoid contamination by contagious disease and to prevent the spread of such disease to employees and others who may come in contact with the table. The preparation room was not clean and sanitary. There were piles of trash littering the room. Junk and clothes were scattered about the rooms and hallways of the funeral home. The funeral home must be kept clear of debris so that it can be easily cleaned and disinfected. This safeguards against the spread of contagious disease. Otherwise, the public may be exposed to contagious disease that can be tracked out of the funeral home. The floor of the funeral home was dirty. Baseboards were splitting from the walls. The space between the baseboard and walls created another porous surface that can spread infectious disease. The master trocar and scalpels were rusted. A master trocar is used to aspirate cavities that can not be prepared by embalming the venous and arterial system. Instruments must be kept clean in order to avoid the spread of infectious disease. The funeral home failed to maintain an adequate supply of hardening compound. There was little or no hardening compound left in the container made available to the inspector. Mr. Urey Burrell stated that he had ordered additional compound. Hardening compound is essential to the services performed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Section 470.035(1)(h) and Rule 21J-30.001(4)(h), but guilty of violating Sections 470.036(1)(g) and (n) and Rules 21J-21.003(1)(b), (c), (f), (g), and (h). It is further recommended that the Final Order suspend Respondent's license and place Respondent on probation in accordance with this Recommended Order. In the event Respondent chooses no to comply with the terms of suspension and probation, it is recommended that Respondent's license be revoked. RECOMMENDED this 18th day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1995.
The Issue The issue is whether Respondent is guilty of fraudulent advertising or violation of other laws directly applicable to the funeral business.
Findings Of Fact At all material times, Respondent has been a licensed funeral director and embalmer, holding license number FE 0003136. In 1990, Respondent incorporated Mark L. Tishman Funeral Home, Inc., to operate Tishman Funeral Home. Three years later, Respondent entered into a business relationship with Richard Martin, another licensed funeral director and embalmer. In 1993, Mr. Martin and Respondent incorporated Independent Mortuary Services International (IMSI) to provide funeral services. A 1995 audit of IMSI revealed problems with IMSI's sale of funeral pre-need contracts. IMSI lacked documentation for many such contracts. Mr. Martin managed the business, and Respondent was in the field. However, in July 1998, when Mr. Martin was on vacation, Respondent discovered that Mr. Martin had misappropriated pre-need contract funds. Respondent confronted Mr. Martin when he returned. Their relationship deteriorated, and, by early December 1998, Respondent could no longer access corporate funds. The Department of Banking and Finance commenced an administrative proceeding against IMSI, Mr. Martin, and Respondent. The issue in the case was whether the respondents had failed to cooperate with agency examiners trying to examine IMSI records concerning pre-need contracts. No representative of IMSI appeared at the final hearing, which took place on February 17, 1999. The resulting final order, which was issued on May 26, 1999, imposed an administrative fine of $10,000 and assessed record-examination costs of $4125. The order imposed this fine and costs against each respondent, individually and collectively, and gave them 30 days to pay the administrative fine of $10,000. According to the final order, the Department of Banking and Finance had mooted the request for an order revoking IMSI's certificate of authority. The Department of Banking and Finance had declined to reissue the certificate when it expired on January 14, 1999, and IMSI had failed to demand a formal hearing on this action. Eventually, IMSI was liquidated. Respondent claims to have paid some sums to the receiver, but he has not paid the fine and costs assessed against him by the Department of Banking and Finance, nor has IMSI or Mr. Martin. Following the resolution of the Department of Banking and Finance proceedings involving IMSI, Mr. Martin, and Respondent, Respondent ordered an advertisement in the GTE Yellow Pages for Sarasota. The advertisement was for Tishman Memorial Chapel, L.L.C., and displayed Respondent's picture, under which was his name and the letters, "LFD," with the text, "Serving You Since 1990." At no time has Tishman Memorial Chapel, L.L.C., been licensed as a funeral establishment. Apparently, Respondent believed mistakenly that he would be able to obtain the necessary license prior to the publication of the yellow pages. Claiming never to have received a proof of the advertisement, Respondent tried to cancel the advertisement, but was untimely in his effort, and the advertisement ran in the yellow pages. However, Respondent never answered the telephone number advertised as the Tishman Memorial Chapel, so as not to exacerbate the situation.
Recommendation It is RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order revoking Respondent's license. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 23rd day of March, 2001. COPIES FURNISHED: Madeline Smith, Executive Director Board of Funeral Directors and Embalmers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph W. Malka Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jordan L. Wallach Jordan L. Wallach, P.A. 1800 Second Street, Suite 900 Sarasota, Florida 34236
Findings Of Fact Respondent is a licensed Funeral Director and Embalmer. Respondent was a full-time employee of State Society for Cremation, Inc.; hereinafter referred to as the Society. Respondent's duties included picking up the deceased, transporting the deceased to the crematory, placing the deceased in a lined (container), placing the deceased in refrigerated storage for 48 hours as required by law, contacting the family, preparing paper work, signing death certificates, obtaining cremation permit, supervision cremation and disposal of the remains. Respondent's picture together with information about the Society was published in a local paper as an advertisement. (See Plaintiff's' Exhibit D.) Respondent did sign death certificates in block 25b; FUNERAL DIRECTOR, and the name of State Society for Cremation, Inc., was entered in block 25a, FUNERAL HOME - NAME AND ADDRESS. Respondent called upon Mabel Jensen and Leonard Jensen and obtained their signatures on two contracts upon payment of $22 each, however, according to the Society's President, the Society never used door to door solicitation. The Society maintains a specific location for the preparation and maintenance of dead human bodies prior to cremation and for its crematorium. The Society did actively seek business by various means of directly contacting individual members of the public to include direct mailings and telephone solicitation, although telephone solicitation was stopped in October 1975.
Recommendation The Hearing Officer based on the foregoing findings of fact and conclusions of law recommends that the Respondent's license be revoked with consideration for reinstatement in six months. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Douglas R. Evenue 4114 11th Street North St. Petersburg, Florida 33701 Mr. R. C. Blanton, Jr. Executive Secretary State Board of Funeral Directors and Embalmers Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 G. Kenneth Norrie, Esquire 1300 Florida Title Building Jacksonville, Florida 32202
