Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that (1) Respondent Randell E. Aultman be found guilty of violating Sections 470.036(1)(e) and (o) on three occasions by reason of his failure to timely file death certificates and that Aultman be found guilty of violating the same statutes for failure on three occasions to timely obtain a burial-transit permit and to see that such permits accompanied the bodies when being transported out-of-state, and (2) Respondent The American Funeral Home be found guilty of violating Subsections 470.036(1)(e) and (o) on four occasions by reason of its failure to timely file death certificates, and that American be found guilty of violating the same statutes for failure to timely obtain burial- transit permits on five occasions and to see that such permits accompanied the bodies when being transported out-of-state. It is further RECOMMENDED that Respondent Aultman be given a public reprimand and that Respondent The American Funeral Home be given a public reprimand and required to make six monthly filings as set forth in the Conclusions of Law portion of this order. DONE and ENTERED this 5th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of April, 1982.
Findings Of Fact William E. Manker, Jr. and Manker Funeral Home are licensed as Funeral Director License No, 905 and Embalmer License No. 1007. Accordingly the Hearing Officer has jurisdiction over the Respondents and the alleged offenses. In October, 1977 Hobby Tillman, a registered nurse who worked part time for Manker, told Louis C. Slater, a forensic technician at the DCMEO that he could make it worthwhile to Slater if he could provide information on bodies at the morgue which led to these bodies being turned over to Manker for interment. Manker suggested to Tillman that such representation be made to an employee of DCMEO. Tillman was paid by Manker only for services he performed at specific funerals. No agreement was made between Manker and Tillman whereby the latter would receive additional compensation for any business he brought to the funeral home. Tillman had worked for several other funeral homes in the Miami area and had picked up bodies at the DCMEO for these other homes. He was a salaried employee for House of Albert funeral home for a period of time but in October and November 1976 the only funeral home at which he was working was Mankers. Slater reported this offer to his superiors who notified the Dade County Public Safety Department. The case was assigned to Detective Buckley and Sergeant Beirne who arranged for Slater to call Tillman at the Manker Funeral Home to accept his offer and arrange a meeting for the exchange of information for money. On November 9, 1976 Slater called the number of Manker Funeral Home and asked to speak to Bobby. An individual purporting to be Tillman talked with Slater, and Manker was made aware of this conversation. This call was taped when both police officers assigned to this investigation were present in the room with Slater. During this conversation Slater stated he would accept Tillman's offer and would call later for an appointment to meet him. The tape and transcription thereof constituted Exhibits 2 and 1 respectively. The police officer who was present and transcribed a copy of this tape testified that the transcription was an accurate reproduction of the conversation; however, the other police officer who was also present, testified that only Slater's voice could be heard in the room. Absent evidence of an open mike in the room the testimony that only Slater's voice could he heard by the police officer is obviously correct. No witness identified the voice purporting to be Bobby on the other end of the line; and Tillman, in whose presence the copy offered as the new Exhibit 2 was played, denied that the voice was his or that he ever talked to Slater over the phone. On November 17, 1976 Slater called the Manker Funeral Home to speak to Hobby to set up a meeting to pass to him the name of a body at the morgue. At this point the testimony diverges. Slater testified the call was made between 12 noon and 1:00 p.m. Tillman testified that he was told the call came about 10:00 a.m. Slater testified he talked to Tillman while the latter's testimony was that he was working at his nursing job at the time of the call and didn't arrive at the funeral home until after 1:00 p.m. Upon Tillman's arrival at the funeral home he was advised by another Manker employee of the message received from Slater to meet him at the South China Cafe at 2:00 p.m. that day. Tillman was in his nurse's uniform and was driven home by Manker to change clothes. Then he was driven by Manker to the South China Cafe, stopping en route at a drug store where Manker had a prescription filled and purchased sun glasses. Upon arrival at the South China Cafe on Northwest Tenth Street Manker remained in the car while Tillman entered the cafe and met with Slater. Slater told Tillman he had the name of a body and next of kin and asked if Tillman would give him something for the information. Tillman left the cafe and went to Manker's car, spoke to Manker and returned to the cafe. Before returning to the table where Slater was waiting Tillman ordered a hot dog and coke and took these to the table where Slater waited. With respect to these events again the testimony varied principally as to detail. Slater testified he didn't give the paper containing the fictitious name that had been supplied him by the police until after Tillman gave him ten dollars. Tillman testified he took the piece of paper with the names to show Manker from whom Tillman got twenty dollars. Part of this twenty dollars was used to purchase his hot dog and coke, ten dollars was given to Slater for the information and the balance was pocketed by Tillman. Manker's version of the events was that Tillman wanted a ride to pick up a prescription at Jackson Memorial Hospital Pharmacy on Northwest Tenth Street across from the South China Cafe, and since he had to go in that direction to pick up his own prescription he agreed to take him. Manker drove Tillman home to change clothes then drove him to Northwest Tenth Avenue. Tillman came back to the car for a short visit to advise Manker he would be a few minutes longer, but according to Manker, Tillman made no request for money nor did he give him any money. Manker further testified he did not even know Tillman was to meet with Slater. Slater had been wired for sound for the cafe meeting with Tillman but background noises rendered their conversation unintelligible to the police officer monitoring the conversation a few tables away. After the paper with the names had been exchanged for ten dollars, Slater, as a prearranged signal to the police of this fact, dropped a coin on the floor as he got up to leave. When exiting the cafe Tillman was arrested and booked at county jail. A preliminary search at the jail did not produce the paper that had been given Tillman by Slater but shortly thereafter one of the wardens saw Tillman throw something in the waste basket which the warden retrieved and turned over to Detective Buckley who identified it as the paper he had given to Slater with the fictitious names. Prior to his subsequent trial Tillman agreed with the State's Attorney that in exchange for a plea of guilty and testimony against Manker he would be given probation. Tillman pleaded guilty to offering a bribe and was placed on probation.
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 From the pleadings filed herein, and argument of counsel, the following facts are determined. Petitioner filed its initial administrative complaint on August 11, 1981, alleging generally that in conjunction with the arrangement of an out-of-state funeral (1) Respondents were guilty of fraud, deceit, negligence, incompetency or misconduct in the conduct of their business of funeral directing, and (2) Respondents were guilty of misrepresentation and fraud in the conduct of their profession. Still pending are Count II, Count III (which has been dismissed this date by separate order for failure to state a cause of action without prejudice to Petitioner refiling a proper charge), and Counts IV and V (which are sought to be added to this proceeding through Petitioner's second amended administrative complaint). Petitioner accordingly sought to take disciplinary action against Respondents' licenses as funeral director, embalmer and funeral establishment. Upon a motion to dismiss being filed by Respondents, the complaint was dismissed for failure to state a cause of action. Thereafter, Petitioner filed its first amended administrative complaint on October 1, 1981, charging, inter alia, that Respondents were guilty of negligence or misconduct in the practice of funeral directing within the meaning of Subsection 470.036(1)(g), Florida Statutes. These charges again stemmed from a funeral purchase agreement entered into by Respondents on or about June 24, 1980, which required Respondents to pay from the proceeds of a funeral arranged by them a $1,250 payment to a Nebraska funeral establishment to handle the actual burial of the deceased. This payment was not made to the other funeral establishment until on or around February, 1981. Respondents thereafter filed a motion to dismiss Count I of the complaint on October 21, 1981, contending, inter alia, that Petitioner failed to state a cause of action under the facts alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents' motion to dismiss Count I of the First Amended Administrative Complaint with prejudice be and it is hereby GRANTED, DONE and ENTERED this 28th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of April, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Wilson W. Wright, Esquire 217 South Adams Street Tallahassee, Florida 32301
