Findings Of Fact The Respondent, James Cusack, is a licensed funeral director and embalmer, having been issued licenses numbered FE 2036, EM 2036 and FD 1842 by the Board of Funeral Directors and Embalmers. During the periods of time relevant to this proceeding he was the licensed funeral director in charge of Sunset Funeral Home. The Respondent, Sunset Funeral Home, is a licensed funeral establishment, holding establishment license number FH 974 issued on March 27, 1975. The present owner of Sunset Funeral Home is Amos Lewis, although there have been other owners in partnership with Mr. Lewis since the establishment became licensed. George Williams of Titusville was employed by Sunset Funeral Home for the purpose of removing dead human remains from hospitals and other institutions. George Williams also signed such release forms as were required to remove human remains to the Sunset Funeral Home, as a mortician for the Respondent funeral establishment. In particular, George Williams performed this service on February 28, 1979, when he secured the release of James Whittenburg, deceased, from a Melbourne hospital by signing as mortician, and removing the remains to Sunset Funeral Home. George Williams is not a licensed mortician. Amos Lewis, who is the owner of the Respondent funeral establishment but not licensed as a funeral director, took orders from families of decedents for caskets which were shown at Sunset Funeral Home by Amos Lewis. Amos Lewis also prepared the sales contracts for pre-need funeral services, and for the final disposition of decedents. Timothy Stokes and Ethel Stokes own Stokes Ambulance Service in Melbourne, but neither is licensed as a funeral director. These persons retained an inoperative ambulance parked in front of their residence. This residence had previously been the location of Sunrise Funeral Home in Melbourne. The Stokes also retained a telephone directory advertisement in the name of Sunrise Funeral Home, and have retained the prior business telephone number of Sunrise Funeral Home as their home telephone number. This arrangement served to solicit clients for the Respondent, Sunset Funeral Home and its owner, Amos Lewis. In July of 1981, Ethel Stokes made arrangements for funeral services for one Dan Drasson, deceased, for the Respondent, Sunset Funeral Home, although she was not licensed as a funeral director. In October of 1978, Timothy Stokes signed mortuary release forms for Brevard Hospital in Melbourne, releasing the remains of Joe McCray to Sunrise Funeral Home, as a mortician and representative of Sunset Funeral Home. Timothy Stokes also provided pre-need funeral services for Diana Tolbert at the request of the Tolbert family, making arrangements for shipping the body of Diana Tolbert, preparing insurance papers, obtaining a death certificate, and shipping the body of Diana Tolbert to another state, as the representative of Sunset Funeral Home. Timothy Stokes has no license authorizing him to perform these functions. In May of 1980, the Respondent, Sunset Funeral Home arranged for embalming the dead body of Joe Thomas without the consent of any person with authority to provide such consent. Sunset Funeral Home's representative, Ethel Stokes, provided a copy of an authorization to embalm which bore the forged signature of Joe Thomas' son, Frederick Montgomery. The Respondent, Sunset Funeral Home, knowingly, employed and compensated Timothy Stokes and Ethel Stokes, unlicensed persons, for the purpose of practicing funeral directing and soliciting contracts for the same in the name of Sunset Funeral Home. The Respondent, James Cusack, was associated with the Respondent, Sunset Funeral Home, as licensed funeral director but not as an owner. There was not sufficient evidence presented to demonstrate that he was involved in the activities described above, or that he had any direct or specific knowledge that such activities occurred, to support a finding of fact that James Cusack was guilty of any more than negligent supervision of the Respondent funeral establishment. James Cusack has removed himself from any association with Sunset Funeral Home, and he now works as a funeral director in Deland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent, James Cusack, and the Respondent, Sunset Funeral Home be found guilty of violating subsections 470.036(1)(a), (h) and (n) and 470.031(1)(a) and (f), Florida Statutes, as charged. It is further RECOMMENDED That license number FH 974 held by Sunset Funeral Home be revoked, and that Sunset Funeral Home be assessed an administrative fine of $3,000. It is further RECOMMENDED That James Cusack receive a reprimand, and be placed on probation for a period of one year, subject to such conditions as the Board may specify in the Final Order herein. THIS RECOMMENDED ORDER entered this 15th day of November, 1982. WILLIAM B. THOMAS, 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 15th day of November, 1982. COPIES FURNISHED: James H. Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 James E. Cusack Post Office Box 2009 Deland, Florida 32720 Sunset Funeral Home 611 South Washington Avenue Titusville, Florida 32780 Mr. Edward P. O'Dowd Executive Director Florida Board of Funeral Directors and Embalmers Room 507, 111 E. Coastline Drive Jacksonville, Florida 32202 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Marvin W. Martin is a licensed funeral director and embalmer in the State of Florida, having been issued license no. FE0000982. He was so licensed at all times material to the Amended Administrative Complaint. Abbey-Tallahassee Memory Gardens is a licensed funeral home in the State of Florida having been issued license No. FH0001579 on December 24, 1987. Martin was the funeral director and embalmer at Abbey-Tallahassee from December 24, 1987, until November 23, 1988. Tina King and Michael Ganey have never been licensed as funeral directors and embalmers in the State of Florida. Each was employed at Abbey- Tallahassee during the time that Martin was funeral director and embalmer at the funeral home. Michael Ganey embalmed bodies three or four times at Abbey-Tallahassee. He did so at the direction of and with the knowledge of Martin. On one of these occasions, Martin was present. During the other instances Martin was not present, but knew of the activity. Because Ganey was not licensed, Martin signed all of the embalming affidavits and attested that he had performed the embalmings that Ganey had in fact performed. Tina King participated in one embalming of an autopsied body by sewing up parts of the body and assisted Martin by spraying bodies, handing him things and turning on the embalming machine. Everything she did was with Martin's knowledge and at his direction. DPR presented substantial amounts of evidence regarding the unsanitary conditions and regarding the burial of the remains of a stillborn infant in a black garbage bag at Abbey-Tallahassee while Martin was the funeral director. This evidence is not considered and no Findings of Fact are made based on it because no allegations were made in the Amended Administrative Complaint which relate to this evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Funeral Directors and Embalmers enter a Final Order and therein: Find Marvin W. Martin guilty of violating Section 470.036(1)(a), (g), and (n), Florida Statutes. Impose an administrative fine in the amount of $750. Place Martin on probation for a period of one year, with supervision of a Board approved sponsor. DONE and ENTERED this 7th day of June, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER CASE NO. 90-0706 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(4); 5(4); 6(4&5) ; 7(5); 8(5); 9(6); 11(4); 12(7); and 13(7). Proposed findings of fact 3, 10, and 14-17 are rejected as being irrelevant for the reasons stated in this Recommended Order. COPIES FURNISHED: Cynthia Gelmine Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Marvin W. Martin 302-1 Flowerwood Drive Chattahoochee, FL 32324 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Anna Polk Acting Executive Director Board of Funeral Directors and Embalmers Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
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.
