Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 470, Florida Statutes. At all times material to this proceeding, Respondent was a licensed funeral establishment in the State of Florida known as Marion Community Funeral Chapel (Community Chapel), located at 917 South Delaney Avenue, Avon Park, Florida, and issued license number FH 0001398. At all times material to this proceeding, Eloise Marion (Marion) was the sole owner of Community Chapel. Eddie J. Wyche, a 60 year old male, died while a patient in the care of Florida Hospital, Avon Park, Florida. A death certificate issued on March 29, 1995, shows the time of death to be 2:00 p.m. on March 23, 1995. Jannie L. Wyche, wife of Eddie J. Wyche (deceased), was present at the hospital at the time of Eddie Wyche's death. Jannie L. Wyche (wife) was the "legally authorized person" to direct the disposition of the decedent's body. Hospital officials advised the wife that the hospital did not have the necessary refrigeration facility to hold the dead body and that the body had to be removed immediately. Thereafter, the hospital furnished a release form for the wife to sign which legally allowed Community Chapel to remove the body of the deceased from the hospital and to transport the body to Community Chapel's place of business. Later on that same day, March 23, 1995, Marion, along with Leroy Brown, transported the body to Community Chapel. In the early evening of March 23, 1995, Marion went to the deceased mother's home to inquire about making funeral arrangements but was advised that the wife would be handling the funeral arrangements. Later on that same evening, Marion went to the wife's home to make an appointment to discuss the funeral arrangements. After Marion advised the wife that she had picked up the body, the wife told Marion "do what you have to do" or words to that effect. In response to the wife's inquiry of getting together to "make arrangements", Marion advised the wife that Marion did not have time at the moment to discuss the funeral arrangements due to a prior appointment, and because of a "viewing", which was scheduled for Friday, March 24, 1995, and a "burial" scheduled for Saturday, March 25, 1995, she would not be available until sometime between 3:00 p.m. and 6:00 p.m. on Saturday, March 25, 1995. No specific time for an appointment to discuss the "arrangements" was agreed upon at this time. Because there was nothing further, other than embalming, which needed to be done to the body, Marion interpreted the wife's response of "do what you have to do" as the wife's verbal permission to proceed with embalming the body. Marion proceeded with having the body embalmed. Although the wife and Cheryl Johnson testified that the wife did not make such a statement, I find Marion's testimony to be more credible in this regard. Previously, Marion had previously handled the arrangements for the funerals of the wife's mother and sister, and it does not seem logical that Marion would have moved forward with the embalming body without some indication from the wife to do so. Not completely satisfied with Marion's response about a time for making "arrangements", the wife, on the advice of her sister, decided to engage another funeral establishment to handle the funeral. Several hours later, the wife contacted Marion and advised Marion that she had decided to engage another funeral establishment to handle the funeral arrangements. At this time, the wife neither advised Marion as to the name of the other funeral establishment that was to handle the funeral arrangements nor give Marion any express order for the release of the body. Later on in the evening of March 23, 1995, the wife telephoned Ed Harrell in regards to his funeral establishment handling the funeral arrangements for her late husband. Harrell advised the wife to contact and advise Marion of her decision, and that he would come by Marion Community the next day to pick up the body. After talking with the wife, sometime around 10:00 p.m. on March 23, 1995, Ed Harrell telephoned Marion to advise her of the wife's decision to engage his establishment in handling the funeral arrangements. Harrell also told Marion that he had a release form to pick up the body and would be around on Friday, March 24, 1995, to pick-up the body. Upon inquiry by Harrell, Marion advised Harrell that the family owed for transporting and embalming the body. There is no evidence that a release form was presented to Marion at any time before, or at the time, the body was released to Harrell by Marion. Sometime on Friday, March 24, 1995, the wife advised Marion that Ed Harrell would be handing the arrangements for the funeral and would be by to pick up the body. At this time, Marion advised the wife that the wife owed Marion for transporting and embalming the body, and that "someone got to pay me for transporting and embalming." The amount owed was not discussed at this time. Marion did not tell the wife that the body would not be released unless, and until, the amount owed was paid. After the wife talked with Marion, on Friday, March 24, 1995, Ed Harrell attempted to visit Marion in regards to picking up the body, but Community Chapel was closed. Ed Harrell then went to the wife's home. Later that day, Harrell contacted Marion by telephone, and was informed that there was a charge of $90.00 for transporting the body and $375.00 for embalming the body which had to be paid. Marion did not tell Ed Harrell the body would not be released unless, and until, the amount was paid. On each occasion (at least three) when Harrell called Marion about picking up the body, Marion insisted that she must be paid for the embalming (there was no dispute about the transport fee), and each time Marion was told by Harrell that the wife would not pay the embalming fee. And each time that Marion was told that the wife would not pay the embalming fee, Marion would hang up the telephone. However, the more credible testimony is that Marion did not tell Harrell that the body would not be released unless, and until, the amount owed was paid. Apparently, Harrell considered Marion's hanging up the telephone as a refusal to release the body without first being paid. Although it may have been frustrating, Marion's hanging up the telephone when told she was not going to be paid, does not rise to the level of refusing an express order to release the body. On Saturday, March 24, 1995, Marion released the body to Ed Harrell, and at the same time, Respondent was paid $465.00 for services rendered. Marion assumed, based on the wife instructing Marion to "do what you have to do", that she had oral permission from the wife to embalm the body of the deceased, However, Marion neither attempted, nor was she given, written permission or authority from the wife to embalm the body of the deceased. Other than advising Marion that Ed Harrell would be by to pick up the body, there is no evidence that the wife gave Marion an express order, requiring Respondent to promptly surrender the body to Ed Harrell. Likewise, there is insufficient evidence to show that Marion refused to release the body unless, and until paid, after being given an express order by Harrell, on instructions from the wife, to release the body, notwithstanding the testimony of Ed Harrell which I find lacks credibility
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the disciplinary guidelines set out in Rule 61G8-30.001(4), Florida Administrative Code, it is recommended that the Board enter a final order finding that Respondent did not violate Section 470.036(1)(p), Florida Statutes (1993), and dismissing Count I of the Administrative Complaint. It is further recommended that the Board finds that Respondent violated Section 470.036(12)(t), Florida Statutes (1993), and that such violation was a "technical violation" requiring only a written reprimand and an assessment of an administrative fine in the amount of Five Hundred Dollars. RECOMMENDED this 26th day of June, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5940 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Department's Proposed Findings of Fact. Proposed findings of fact 1-8, 10-14, 16 and 18 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed finding of fact 9, as stated, is not a finding of fact but a conclusion of law. Proposed findings of fact 15 and 17 are not supported by evidence in the record. As to proposed finding of fact 19, Respondent was paid $465.00 which was calculated as $375.00 for embalming and 90.00 for transporting. There is an error in calculating the total amount due on Department's exhibit 4 since $375.00 plus $95.00 equals $470.00, not $465.00 as indicated on exhibit 4. The evidence shows that Respondent was paid $465.00 at the time the body was released but the release of the body was not condition upon the payment. Proposed findings of fact 20 and 21 are neither material nor relevant. Respondent's Proposed Findings of Fact. Respondent elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 7, Suite 728 Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services District 14 270 Bartow Municipal Airport Bartow, Florida 33830 R. E. D. (Address of Record)
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 =================================================================
The Issue The issue presented for determination herein is whether or not disciplinary action should be taken against the Respondents' licenses as funeral directors, embalmers and a funeral establishment based on conduct set forth hereinafter in detail based on allegations in the Administrative Complaint filed herein dated February 2, 1982.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the oral and documentary evidence adduced at the hearing, and the entire record compiled herein, the following relevant facts are found. At all times pertinent to this proceeding, Respondent E. Stone, held a license to practice funeral directing and embalming and acted as the funeral director in charge of Respondent Stone's Funeral Home. (Petitioner's Exhibit No. 1) At all times pertinent to this proceeding, Respondent Janorise G. Stone (herein sometimes called Mrs. Stone), held a license to practice funeral directing and embalming. (Petitioner's Exhibit No. 2) At all times pertinent to this proceeding, Respondent Stone's Funeral Home was a licensed funeral establishment. (Petitioner's Exhibit No. 1) On or about September 12, 1979, Gerald M. Jordan was stillborn to Mr. and Mrs. Earnest Jordan. The Jordans, not lawfully married at the time, subsequently did so. Mrs. Jordan contacted the Respondents' establishment for the purpose of arranging a funeral for the deceased Jordan. Mr. Jordan went to Stone's Funeral Home and met with Rudolph E. Stone, the owner/ manager of Stone's Funeral Home. Rudolph Stone is not licensed as a funeral director. Respondent, Janorise Stone, quoted Mr. Jordan a $95.00 charge for a burial, without funeral services, for his son. Respondent Janorise Stone advised Mr. Jordan that she would call Riverview Memorial Gardens (Riverview) an area cemetery to find out how much it would cost to bury the child there. After speaking on the phone to an agent of Riverview, Mrs. Stone advised Mr. Jordan that the price would be $50.00, i.e., $25.00 for the perpetual care fund and $25.00 for the burial space. Mr. Jordan paid $50.00 to Stone's Funeral Home. The payment was accepted by Respondents' maid who gave Mr. Jordan a receipt for the payment. The baby was buried on September 20, 1979. The Jordans never asked the Respondents to return the $25.00 fee paid for the burial space at Riverview. 2/ There was no written agreement or contract evidencing the terms of the services provided to the Jordans by the Respondents. However, Mrs. Stone gave the Jordans an itemized statement for the services rendered. Mrs. Geraldine Jordan stated that she was present when her husband was told by Mrs. Stone that the burial space at Riverview was $50.00. Mrs. Stone had telephonically inquired of Riverview the price of a grave site for a premature baby. She advised the Jordans that the fee would be $50.00 following the telephone inquiry. During December, 1981, Mrs. Stone delivered to Mrs. Jordan a check in the amount of $25.00 which was specifically given as a "refund on perpetual care" for Riverview. Doris Shumway acted as secretary for Riverview during September, 1979. Mrs. Shumway recalled that Riverview had been recently purchased in a receivership proceeding from American Bank of Merritt Island, Florida. Mr. R. J. Witek, the purchaser, related that that was his first endeavor in the management of cemeteries and was his second dealing with the burial of an infant. As a result, Riverview was then developing a pricing policy and in fact relied upon the advice and guidance of the Respondents as well as other area funeral homes for assistance in formulating a pricing policy for burial sites and other related services. (Testimony of Shumway and R. J. Witek) Mr. Witek related that at one period there was in fact a $50.00 charge for the burial of a newborn infant while the cemetery had been in receivership. Throughout the period while the receivership proceeding was pending, and subsequent to Witek's purchase of the cemetery, the price for the burial of a newborn infant at Riverview fluctuated until a pricing policy was established. (Testimony of Witek) Mrs. Jordan, mother of the deceased, did not meet with Respondents until approximately three months after the burial of her son. At that time, Respondents provided her with an itemized list of the services provided and the costs therefor. The Respondent establishment has been in existence since approximately 1923. The subject complaint represents the second administrative complaint in the Respondent establishment's fifty-nine (59) year existence. Mrs. Stone, Respondents' licensed funeral director and embalmer, delivered to Mrs. Jordan a check for the sum of $25.00 after she was contacted by the Petitioner and was advised that the Jordans had made a $25.00 overpayment for the burial services of the deceased Jordan. Mrs. Stone checked her records and confirmed the existence of an overpayment and immediately refunded same to Mrs. Jordan. (Deposition of R. J. Witek and Exhibit 1 attached thereto) Mrs. Stone reviewed the pricing schedule of all the other area cemeteries for the benefit of, and at the request of, Mr. Jordan in arriving at a fee which was charged to the Jordans. Mrs. Stone had no specific independent recollection as to the exact payment to Riverview on behalf of the Jordans. Mrs. Stone denied any attempt to misrepresent or otherwise defraud the Jordans of any monies. She related that the overcharge occurred as a result of the fluctuating fee schedule which was in effect at Riverview due to its (Riverview) new entry in the cemetery business. Mrs. Stone recalled providing Mrs. Jordan an itemized statement for the services provided them during 1979 although no formal contract with signatures was given the Jordans. Mrs. Stone reiterated the fact that the Jordans were not provided an itemized statement or contract detailing the specifics respecting prices and the services offered inasmuch as the Jordans did not meet with the Respondents until some three (3) months after the burial of their son.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: (1) That the Administrative Complaint filed herein against Respondents be DISMISSED. 3/ RECOMMENDED this 18th day of November, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 18th day of November, 1982.
