The Issue Did Respondents offer for sale, sell, or receive money from the sale of, preneed funeral service and merchandise contracts without possession of a valid certificate of authority? Did Respondents fail to submit preneed contract forms and trust agreement forms to the Department of Banking and Finance (Department) or the Board of Funeral and Cemetery Services (Board) for approval before using such forms, and did such forms meet the statutory requirements? Did Respondent, Robert E. Romaine, individually, offer for sale, sell or execute preneed contracts on behalf of Romaine- Sarasota Funeral home without first being registered as a preneed sales agent? Did Respondents violate Section 497.433, Florida Statutes, by making misrepresentations and false statements that would constitute unfair methods of competition or an unfair or deceptive act or practice as defined in Section 497.445(1),(2), and (4), Florida Statutes? Case No. 94-7102 Should Petitioner Romaine-Sarasota Funeral Home be issued a certificate of authority to sell preneed funeral service and merchandise contracts?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following findings of fact are made: General Findings of Fact The Department, in association with the Board, is the agency charged with the responsibility of regulating the sale of preneed funeral service and merchandise contracts (preneed contracts). The Board is further authorized to grant, deny, renew, suspend, or revoke certificates of authority to sell preneed contracts and to register preneed sales agents pursuant to Chapter 497, Florida Statutes. Respondent Romaine Enterprises, Inc., d/b/a Romaine Sarasota Funeral Home, (Romaine Funeral) is a corporation existing under the laws of the State of Florida, conducting business in this state, and principally located at 3340 Bee Ridge Road, Sarasota, Sarasota County, Florida. Respondent Robert E. Romaine (Romaine) is president and owner of Romaine Funeral. Romaine Funeral does not possess, and has never possessed, a valid certificate of authority to sell preneed contracts. At no time material to this proceeding was Romaine licensed as a funeral director or registered as preneed sales agent with the Board. At all times material to this proceeding, Edward W. Bacon, Jr., (Bacon) and Barrington G. "Barry" Hayes (Hayes) were funeral directors licensed under Chapter 470, Florida Statutes, who have been, and are currently, employed by Romaine Funeral. Findings of Fact - Enforcement Proceeding Romaine Funeral purchased air time from Comcast Cablevision of Sarasota formerly Storer Cable (Comcast) for the purpose of airing certain spot commercials advertising the availability of Romaine Funeral's inflation proof preneed plan. Some of the spot commercials referred only to the availability of Romaine Funeral's "Preneed Plan" without any reference to the plan being inflation proof. There were at least nine of these spot commercials aired on Comcast at different times during the period of November, 1992 through May, 1993. The evidence clearly shows that these television advertisements were used for the purpose of promoting a preneed plan by Romaine Funeral. Romaine Funeral advertised in a 1994 Folio Calendar prepared by Plan Concepts, Inc. which was distributed locally. The last paragraph of Romaine Funeral's advertisement contained the following language: "Their licensed personnel offer 'Pre-Planning' which is 100 percent refundable." (Emphasis supplied). On October 14, 1993, the Department requested that Romaine provide it with a copy of the "inflation-proof plan" and a list of all of Romaine Funeral's clients who had "In-Trust-for-Accounts" with Romaine Funeral. On October 23, 1993, Romaine provided the Department with the names of 16 customers who owned money market certificates or certificates of deposit held in trust for Romaine Funeral. Subsequently, Romaine produced a list containing the names of 38 customers of Romaine Funeral who owned money market certificates or certificates of deposit held in trust for Romaine Funeral. This list contained the name of the depository institutions, account numbers and contract dates. The contract dates cover a period from April 30, 1982, through February 28, 1995. Additionally, Romaine produced copies of a form titled "Funeral Purchase Order" (contract) used by Romaine Funeral in contracting with individuals purchasing funeral services or merchandise to be provided upon the death of the person (customer) for whom the funeral services or merchandise were purchased. The dates on these Funeral Purchase Orders cover a period of time from February 28, 1985 through July 21, 1994. One Funeral Purchase Order was undated. There are 23 of these Funeral Purchase Orders, including the undated one. Romaine Funeral changed its form sometime after July 21, 1994. The contracts furnished by Romaine dated from September 12, 1994, through February 28, 1995, are on this new form. One contract is undated. There are seven of these contracts, including the undated one. These contracts were also used by Romaine Funeral in contracting with the individuals purchasing funeral services or merchandise to be provided upon the death of the person (customer) for whom the funeral services or merchandise was purchased. The Funeral Purchase Order forms used by Romaine Funeral in contracting with Lauria B. Urquhart and Marshall Urquhart each have the word "Pre-paid" typed on the front of the form at the very top right hand corner. Several of the Funeral Purchase Order forms used in contracting with different individuals have the language "Interest stays in account to take care of any cost of increases for services" typed in the middle of the page. All of the Funeral Purchase Order forms have the language "The liability incurred by Romaine-Sarasota Funeral Home can not (sic) exceed the face amount of this contract" printed just above the signature line for the purchaser and the language "We agree to furnish all services, merchandise (sic) and cash expenditures indicated above" printed just above the signature line for Romaine Funeral. Upon execution of the contract, the amount of the contract was paid by, or for, the customer to Romaine or someone else for Romaine Funeral. Upon receipt of these funds, Romaine would purchase a money market certificate or certificate of deposit in the name of the customer in trust for Romaine Funeral. Romaine retained possession of the certificates. All information concerning the certificates was mailed directly to Romaine by the depository institution. Romaine unilaterally handled the purchasing of the certificates from the depository institution. The customer was never involved in the purchase of a certificate, other than by furnishing the funds. The two exceptions to the above process were: (a) the certificate for the Edna Jones contract was purchased in Romaine's name individually and; (b) the certificate for the William J. Jones contract was purchased in the name of William J. Jones, individually. Thirty of the contracts entered into by Romaine Funeral with individuals purchasing funeral services or merchandise to be furnished by Romaine Funeral upon the death of the customer have corresponding certificates in the face amount of the contract. The contract dates range from February 28, 1985 through February 28, 1995. All the signed contracts in the record were signed by either Hayes or Bacon or Thomas P. Packer or Richard Reed on behalf of Romaine Funeral. A majority of the corresponding certificates were purchased on the same date of the contract or within a month of the contract date. The date of the first certificate being March 14, 1985 and the date of the last certificate being February 28, 1995. All of these corresponding certificates are in the name of the customer in trust for Romaine Funeral. These certificates are in the possession of Romaine and, with the exception of Ester and Edwin Myers, any information from the depository institution concerning these certificates is mailed directly to Romaine. Not all of the 38 accounts (certificates) listed by Romaine as in trust for accounts had a corresponding contract. Funds have been, and are being held, by depository institutions in accounts for customers of Romaine Funeral, in trust for Romaine Funeral. Both Romaine, who unilaterally set up the customer accounts, and Romaine Funeral have failed to demonstrate that there were trust agreements between the depository institutions and Romaine or Romaine Funeral or, if there were trust agreements, that such trust agreements had been submitted for approval to, or approved by, the Department, the Board, or any other predecessor agency. There exist approximately 45 accounts in the Sun Bank representing certificates in the name of Romaine, individually. However, other than certificate number 175016583, there is no evidence to show that any of the other certificates were purchased using funds derived from funeral services or merchandise contracts entered into between Romaine Funeral and its customers. Yvonne E.G. DiFiore (DiFiore), a resident of New Jersey, entered into a contract (Funeral Purchase Order) with Romaine Funeral where she purchased funeral arrangements from Romaine Funeral for her mother, Edna Jones, prior to her mother's death. Hayes, a licensed funeral director, signed the contract for Romaine Funeral. DiFiore spoke only with Romaine at the time of making the funeral arrangements. Romaine agreed to furnish all funeral services and merchandise as requested by DiFiore for her mother's funeral. DiFiore paid to Romaine the sum of $1,200 for her mother's funeral arrangements. Romaine gave DiFiore a copy of the Funeral Purchase Order stamped "PAID: 11-16-87, check no. 001526," and initialed "R.E.R.", as receipt for payment. DiFiore received a copy of a money market certificate from Romaine Funeral in the name of Romaine, individually, in the amount of $1,200. The account number, 175016583, on the certificate matches an account number listed on the Sunbank customer detail of Romaine. DiFiore never received any documentation regarding this account from Sunbank/Gulf Coast, formerly Coast Bank. At the time of her mother's death, DiFiore did not fill out any other documents with Romaine Funeral or pay any additional money to Romaine Funeral for the services provided by Romaine Funeral. DiFiore also entered into a contract with Romaine Funeral whereby she purchased funeral arrangements from Romaine Funeral for her father, William J. Jones, who is still living. Hayes also signed the contract for Romaine Funeral. DiFiore spoke only with Romaine in making these arrangements. Romaine agreed to furnish all funeral services and merchandise as requested by DiFiore for her father's funeral. DiFiore paid to Romaine the sum of $1,200 for her father's funeral arrangements. Romaine gave DiFiore a copy of the Funeral Purchase Order stamped "PAID: 11-16-87, check no. 001526", and initialed "R.E.R.", as receipt for payment. A copy of the William J. Jones Funeral Purchase Order produced by Romaine pursuant to subpoena had the language "Interest stays in account to take care of any cost of increases for service" typed on the contract. This language does not appear on the copy of the Funeral Purchase Order given to DiFiore for her father. Romaine gave a document to DiFiore which was different from the document on file with Romaine Funeral. DiFiore received a copy of a money market certificate from Romaine Funeral in the name of Williams J. Jones, individually, in the amount of $1,200. DiFiore never received any documentation regarding this account from Sunbank/Gulf Coast, formerly Coast Bank. To her knowledge, her father never received any documentation from Sun Bank/Gulf Coast, formerly Coast Bank, regarding this account. Neither DiFiore nor her father went to the bank to set up either the account for Edna Jones' arrangements or the account for William J. Jones' arrangements. DiFiore is of the opinion that all of William J. Jones' funeral arrangements are to be furnished by Romaine Funeral without further cost. Edwin and Esther Myers made funeral arrangements with Romaine and his wife, Marguerite C. Romaine, at the Romaine residence. No one else was present. Romaine Funeral agreed to provide funeral services and merchandise to the Myerses in the future, at their death. The Myerses paid Romaine the sum of $1,000 in advance for these funeral arrangements. Romaine completed a Funeral Purchase Order for both Edwin and Esther Myers, dated May 19, 1988, which contained the notation: "Paid 7-5-88 . . . $500.00" and were signed by Hayes. Using the funds furnished by the Myerses, Romaine purchased a money market certificate in the name of Edwin Myers and Esther Myers, in trust for Romaine Funeral, at Coast Bank. The Myerses were not present at the time Romaine purchased the certificates. The Myerses were of the opinion that Romaine Funeral was receiving the interest and paying the taxes on the interest on the accounts set up by Romaine. However, as a result of an Internal Revenue Service audit, the Myerses have reported and continue to report the interest earned on the account on their federal income tax. All interest statements regarding these accounts, prior to an Internal Service Audit of the Myerses, reflect the address of Romaine Funeral. The Myerses are of the opinion that their funeral arrangements will be furnished by Romaine Funeral without any further payment. Cecelia Kehoe made funeral arrangements for herself with Romaine Funeral. Kehoe paid to Romaine Funeral the sum of $435. Romaine completed a Funeral Purchase Order for Kehoe, dated July 28, 1988, which was marked "Paid 7-28-88 . . . $500" and signed by Hayes. A money market certificate in the amount of $500 was purchased at Coast Bank by Romaine Funeral in the name of Cecelia Kehoe, in trust for Romaine Funeral. Ms. Kehoe is of the opinion that Romaine Funeral will provide her funeral arrangements without any further payment at the time of her death. Ignatius and Doris L. Cassidy, with their son John P. Cassidy, made funeral arrangements with Romaine Funeral through Romaine. Romaine Funeral contracted for "prearranged" funeral services and agreed to provide funeral services and merchandise in the future at the death of Mr. and Mrs. Cassidy. Mr. and Mrs. Cassidy paid to Romaine the sum of $1,000 for their funeral services. Mrs. Cassidy produced a receipt with a Romaine Funeral business card attached, dated January 3, 1989, for payment of $1,000 for "funeral expenses," from Marguerite C. Romaine. However, the receipt does not indicate to whom the receipt was issued. Mrs. Cassidy received no other documentation regarding the funeral arrangements. A Funeral Purchase Order dated January 3, 1988, for Doris Cassidy was produced by Romaine pursuant to subpoena, with the notation: "Paid 1-3-88 Ck#369 . . . $500.00". The Funeral Purchase Order was signed by Hayes on behalf of Romaine Funeral. Romaine represented to Mrs. Cassidy that the funds would be placed in a trust account. Mrs. Cassidy never received any document stating that these funds were refundable. Mrs. Cassidy has never received any documentation regarding the account, nor did she go to the bank to set up the account. At the time of her husband's (Ignatius Cassidy) death, Mrs. Cassidy did not have to fill out any additional forms nor did she pay any additional monies for the services provided by Romaine Funeral. Mrs. Cassidy is of the opinion that Romaine Funeral will provide all of her funeral arrangements without further cost. Ben and Laura Yoder made funeral arrangements with Romaine Funeral through Romaine and Marguerite Romaine. Mr. and Mrs. Yoder paid to Romaine and Mrs. Romaine the sum of $4,760. Romaine Funeral, through Romaine, agreed to provide funeral services and merchandise to the Yoders in the future at the time of their deaths. Romaine gave Mr. and Mrs. Yoder copies of Funeral Purchase Orders stamped "PAID" on "6/13/88" and initialed "M.C.R." by Marguerite C. Romaine. Neither of the Funeral Purchase Orders were signed by either of the Yoders or by someone for Romaine Funeral. The Funeral Purchase Orders for Ben and Laura Yoder, produced by Romaine pursuant to subpoena did not have "PAID" stamped on the document and contained the signature of Barrington G. Hayes for Romaine Funeral. Romaine gave documents to the Yoders which were different from those documents on file with Romaine Funeral. Romaine purchased money market certificates in the Yoder's names in trust for Romaine Funeral at Coast Bank, outside the presence of the Yoders. The Yoders have received no documents from Sun Bank, formerly known as Coast Bank, regarding the accounts set up by Romaine All interest statements regarding these accounts reflect the address of Romaine Funeral. Mr. and Mrs. Yoder were of the opinion that Romaine Funeral will provide all funeral arrangements without any further payment at the time of their deaths. Romaine Funeral agreed to provide funeral services and merchandise to Tynes S. Buchanan by a Funeral Purchase Order dated January 2, 1988, signed by Edward W. Bacon, Jr. for Romaine Funeral. By agreement, dated June 2, 1988, titled Agreement To Establish Irrevocable Preneed Funeral Merchandise or Service Contract, Romaine, on behalf of Romaine Funeral and Agatha Yahraus, on behalf of Tynes Buchanan, parties to Preneed Funeral Merchandise or Service Contract no. 2-1988 (preneed contract no. 2-1988), agreed to make preneed contract 2-1988 irrevocable, pursuant to Section 639.13(6), Florida Statutes (1987). Preneed contract no. 2-1988 referenced in the agreement appears to be the same contract referred to in Finding of Fact 70 dated January 2, 1988. However, other than the date, (January 2, 1988) the number 2-1988 does not appear on Buchanan contract. Romaine, individually, has not advertised or offered for sale preneed funeral services and merchandise contracts while failing to register as a preneed sales agent. Romaine Funeral entered into contracts with customers whereby Romaine Funeral agreed to furnish funeral services and merchandise in the future upon the death of the customer. During the period of time (February 28, 1985 through February 28, 1995) that Romaine Funeral was contracting to furnish funeral services and merchandise in the future, Romaine Funeral did not possess a valid certificate of authority. The contract forms used by Romaine Funeral for contracting with customers to furnish funeral services and merchandise in the future did not have: (a) sequential numbering or sequential prenumbering; (b) specific disclosure regarding Romaine Funeral's selection of either trust funding or the financial responsibility alternative in connection with the receipt of the proceeds from the contract; (c) a requirement that the purchaser make all payments directly to the trustee; (d) a clause expressly stating that Romaine Funeral did not have any dominion or control over the trust or its assets until the contract was entirely completed or performed; (e) any language in conspicuous type advising the contract purchaser of the right to cancel the contract within a given time or; (f) any language in conspicuous type that the purchaser may receive a federal income tax informational statement from the trustee. None of the contract forms used by Romaine Funeral in contracting with its customers to furnish funeral services and merchandise in the future have been submitted to, or approved by, the Department, the Board or a predecessor agency. Findings of Fact - Application Proceeding On or about February 14, 1994, the Department received an Application for Certificate of Authority (First Application) from Romaine Funeral, executed under oath as to truth and accuracy by Romaine, as owner/president, on February 2, 1994. Question 16 of the First Application stated: "Submit copies of preneed contracts proposed to be written and preneed trust agreements." Romaine, as owner/president of Romaine Funeral, did not submit copies of documents required in question 16 with the First Application. By letter dated March 16, 1994, the Department and the Board advised Romaine Funeral of its failure to submit copies of preneed contracts proposed to be written and preneed trust agreements as required by question 16 of the First Application. The letter further advised Romaine Funeral that it had forty-five (45) days from the date of the letter to resolve the deficiency, and that failure to submit the necessary documents would result in denial of the First Application. The expiration date for the 45 days was noted as being April 30, 1994. Romaine, as owner/president of Romaine Funeral, did not submit copies of documents required in question 16 with the First Application within the 45- day period. By an undated letter certified as being mailed to Romaine-Sarasota Funeral Home on July 21, 1994, the Department and the Board advised Romaine Funeral that its First Application had been denied based upon its failure to provide additional information as requested by the letter dated March 16, 1994. The denial letter also advised Romaine Funeral that a violation of Section 497.405(1)(a), Florida Statutes, selling a preneed contract without first having a valid certificate of authority, subjects the company to disciplinary action by the Department. The denial letter further advised Romaine Funeral that it had twenty-one days in which to file a petition for administrative hearing. On or about July 27, 1994, after the expiration of the 45-day period, the Board received via hand delivery a letter from Robert J. Cerra of Association of Independent Funeral Directors of Florida (Association), which stated in part: Enclosed are the proposed trust agreements and contracts for use by Romaine-Sarasota Funeral Home. . . . . . . This is to request that you accept these documents on the funeral homes' behalf and that you will place the application on the agenda for the Board for approval. Attached to the letter, was an "Agreement and Declaration of Trust of Independent Funeral Directors of Florida, Inc., Master Trust Fund A" (Trust Agreement) and a "Prearranged Funeral Agreement" (Preneed Contract). By letter dated September 9, 1994, and certified as being mailed to Romaine-Sarasota Funeral Home on July 21, 1994, the Department and the Board advised Romaine Funeral that its First Application had been denied "based on Section 497.405(1)(a), Florida Statutes, which states 'No person may sell a preneed contract without first having a valid certificate of authority.'" The letter advised Romaine Funeral of its right to file a petition for administrative hearing. Neither the Department nor the Board has amended the denial letter to include any other basis for denial than that set out in its letter of September 9, 1994. The "Trust Agreement" form and "Preneed Contract" form submitted by the Association to the Board on behalf of Romaine Funeral would have been approved for use by Romaine Funeral had its First Application been granted. Further Findings of Fact - Enforcement Proceeding Romaine Funeral filed another application (Second Application) for Certificate of Authority with the Department on March 21, 1995. The Second Application was filed before any final resolution with regards to the First Application. In response to question 7, "Is the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant, the subject of a pending criminal prosecution or governmental enforcement action in any jurisdiction?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed this second application for Romaine Funeral he was aware of the pending administrative action filed against Romaine and Romaine Funeral by the Department of Banking and Finance and the Department of Business and Professional Regulation. In response to question 9 of the Second Application, "Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant, had a license, or the equivalent, to practice any profession or occupation denied, revoked, suspended, or otherwise acted against?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed the Second Application for Romaine Funeral, action on the Department's denial of Romaine Funeral's first application was still pending and the denial was not final. However, Romaine and Romaine Funeral knew at the time of filing the second application that the Department of Business and Professional Regulation had filed an action against Romaine Funeral's license as a funeral home. In response to question 11 of the Second Application "Has the applicant entered into any preneed contracts?" Romaine, as owner/president of Romaine Funeral, answered "No." At the time Romaine filed the Second Application, the position of both Romaine and Romaine Funeral in these cases was that Romaine Funeral had not entered into contracts for the sale of preneed funeral arrangements. In response to question 12 of the Second Application, "Has the applicant accepted funds for prearrangements, or entered into any preneed contracts funded by any method other than those permitted by Ch. 497, where the applicant is the beneficiary?" Romaine, as owner/president of Romaine Funeral, answered "Yes." On April 28, 1995, Romaine executed a document changing the answer to question 7 from "no" to "yes" and the answer to question 12 from "yes" to "no" on the second application. This document was filed on May 1, 1995. At the time Romaine corrected his answer to question 7 it was correct based on the Respondents' position in the enforcement proceeding. There was insufficient evidence to show that Romaine knowingly falsified the answers to questions 7, 9, 12 and 13 on the second application for the purpose of intentionally misrepresenting the facts or misleading the Department. Romaine signed a document entitled "Agreement to Establish an Irrevocable Preneed Funeral Merchandise or Service Contract" on June 2, 1988, for Romaine-Sarasota Funeral Home. The Agreement was between Romaine Funeral and Tynes S. Buchanan. This Agreement represents that Romaine Funeral "is in the business of selling prepaid funeral merchandise and services in accordance with Chapter 639, Florida Statutes, as amended". Romaine admitted, based on the Respondents' position in the enforcement proceeding, that the statement contained in the above referenced agreement is a false statement. There was no evidence of any complaints being made by any of Romaine Funeral's customers concerning these contracts. The only complaint received by the Department, the Board or predecessor agency was filed by a competitor of Romaine Funeral. There was no evidence that Romaine Funeral had failed to honor any contract upon the death of the person for whom the funeral services or merchandise had been purchased. In those instances where the record shows the customer has died, Romaine Funeral performed under the contract to satisfaction of the deceased's survivor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Funeral and Cemetery Services: (a) enter a Cease and Desist Order requiring Respondents and all others acting in concert and cooperation therewith to cease and desist from the sale or offering to sell any prearranged or preneed funeral contracts and to take the necessary corrective action, under the Board's or Department's supervision, to allow each and every person with whom the Respondents have a contract for preneed funeral services or merchandise, which is still in force, the option to rescind the present contract and have refunded to them all monies, including interest, or continue under the present contract with Respondents and; (b) enter a final order denying Romaine Funeral's application for a certificate of authority to enter into preneed contracts until such time as Romaine/Romaine Funeral have completed the above corrective action, at which time the Department or Board would reconsider another application for a certificate of authority. DONE AND ENTERED this 21st day of August, 1995, in 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 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-3862 AND 94-7102 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 parties in these cases. Department's Proposed Findings of Fact: Proposed findings of fact 1 through 11, 13 through 15, 20 through 23, 25 through 92, 94, 96, 98 and 104 through 109 are adopted in substance as modified in Findings of Fact 1 through 100. Proposed findings of fact 12, 16 through 19, 24, and 99 through 103 are unnecessary or immaterial or irrelevant. Proposed findings of fact 93, 95 and 97 are not supported by evidence in the record. Romaine's/Romaine Funeral's Proposed Findings of Fact: 1. The Respondents filed a document titled Proposed Recommended Order that presents their case in narrative form which sets forth their argument. Since it is unclear from the document what portion is argument and what portion is proposed findings, I have not attempted to separate what the Respondents may consider proposed findings of fact from argument and respond. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 J. Stratis Pridgeon H. Richard Bisbee, Esquire Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Marvene A. Gordon, Esquire 2831 Ringling Blvd., Suite 208-C Sarasota, Florida 34237
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.
Findings Of Fact Dale Woodward, the Respondent, holds Funeral Director's License No. 671 and Embalmer's License No. 536 at the present time, and during the times pertinent to 1978 and January through 1979. The Respondent Dale Woodward is the owner of the Dale Woodward Funeral Home of Holly Hill, Florida. The Dale Woodward Funeral Home holds an establishment operating License No. 123. During all times relevant to the allegations in the complaint, Ricky Charles Vyse and Richard G. McCafferty were employees of Dale Woodward and the Dale Woodward Funeral Home. In early 1978, one Howard McMurray made arrangements with Dale Woodward for his own funeral seven to eight months prior to his death. Mr. McMurray stated that he would prefer to have his funeral similar to that of his wife, which arrangements had earlier been handled by the Dale Woodward Funeral Home. On December 19, 1978, Howard McMurray passed away and his body was delivered to the Dale Woodward Funeral Home. On the morning of December 20, Violet Eggleston, his executrix, and her husband Raymond, came to the funeral home. Mrs. Eggleston was met by Mr. Woodward and Mr. McCafferty and introduced to Mr. McCafferty by Mr. Woodward. Although Mrs. Eggleston stated in her deposition (Exhibit 12) that she did not meet Mr. Woodward upon coming into the funeral home, she did state that he might have been painting or hanging wallpaper and that she would not have recognized him with painting clothes on and in fact Mr. Woodward's testimony establishes that he was painting the funeral home that day and was dressed in old clothes and his presence at the funeral home on that morning is corroborated by Mrs. Eggleston's later statement that Mr. Woodward introduced her to Mr. McCafferty at the time they began to discuss funeral arrangements. Mr. McCafferty was introduced to Mrs. Eggleston and obtained some information for the preparation of death certificates as well as for Mrs. Eggleston's desires regarding arrangements for funeral services. Mr. McCafferty also assisted Mrs. Eggleston on behalf of the family in making funeral selections from the Respondent's stock of caskets and urns. Mrs. Eggleston was not the person considered in sole charge of arranging for Mr. McMurray's funeral in that she was not the next of kin, rather the deceased's daughter Diana Keeley apparently had some responsibility in arranging for the funeral, although Mrs. Eggleston was primarily responsible for making the subject arrangements and indeed paid for the Respondent's services herself. Mr. McCafferty did not complete a sale of a casket or urn to Mrs. Eggleston, although she did select a salix casket that day. These preliminary negotiations and discussions of the funeral arrangements and the obtaining of a casket engaged in by Mr. McCafferty with Mrs. Eggleston were at the direction of Respondent Dale Woodward, the subject licensed funeral director, and Mr. McCafferty himself was not present at the funeral. On or about December 22, 1978, the same day, Mrs. Eggleston signed an authorization for the cremation of the body of Howard McMurray and he was subsequently cremated at the Cedar Hill Crematory in Daytona Beach, Florida. The body was removed from the casket in which it had been placed for viewing and was cremated in a cardboard cremation container, The value of that cremation container or the sales price, was substantially less than that of the $865 casket. Neither Mrs. Eggleston nor Diana Keeley, the decedent's daughter, ever gave any written instructions regarding the manner of cremation of the body of Howard McMurray as to the container which should be used, nor does the record reflect that any written instructions or understandings passed between these two ladies and Mr. Woodward or his employees. Mrs. Eggleston's instructions regarding the cremation were verbal and made no provision for the type container to be used in the cremation process. Ricky Charles Vyse was employed by the Dale Woodward Funeral Home on or about June, 1978. At that time, and at times subsequent thereto, he represented that he was qualified to embalm human bodies as an apprentice or intern embalmer in that he had submitted papers registering him for such internship to the Florida Board of Funeral Directors. Dale Woodward and Dale Woodward Funeral Home believed and relied upon that representation, thus permitting Ricky Vyse to assist or participate in embalming procedures. The Respondent Dale Woodward supervised any embalming procedures in which Ricky Vyse participated. Particularly, Dale Woodward did virtually all cosmetic work, including that in the cases involving the decedent, Howard McMurray, as well as with regard to the funeral and embalming of Mary Salvonge. Further, evidence adduced at the hearing revealed that Ricky Vyse had never actually been registered as an intern embalmer with the Board of Funeral Directors and the testimony of four of Respondent's witnesses revealed that Ricky Vyse had been detected on a number of occasions stealing office records and various items of property from the funeral home, including an embalming machine, a Beethoven bust, a desk globe, and other items. After repeated warnings, the Respondent Dale Woodward through his employees Franklin Muffley and Richard McCafferty terminated Ricky Vyse's employment. It was evident from the demeanor of Ricky Vyse on the witness stand that he was a disgruntled employee and hostile former employee of the Respondents, and that be approached the State Attorney in January, 1979 with accusations against Dale Woodward and the Dale Woodward Funeral Home involving violations such as those involved herein. The record reflects that no prosecution was initiated by the State Attorney's office. Franklin Muffley is the internal auditor and bookkeeper for the Dale Woodward Funeral Home. As such he is responsible for the billing in cases such as the McMurray case. It is his practice and custom to gather all figures and data regarding funeral arrangements, verify them and routinely mail a statement within approximately two weeks following a funeral service. In the McMurray case however, the executrix, Mrs. Eggleston, made payment on the day the funeral arrangements were made before any written itemization for funeral services to be rendered was finalized or verified by Muffley. As a result, after having been shown the salix casket priced at $865, she proceeded to pay for the casket, as well as for the other arrangements for a total of $1,785. The record is not clear whether Franklin Muffley or Richard McCafferty who were privy to the discussions of arrangements and price with Mrs. Eggleston that morning knew that the decedent would be cremated in a cardboard container. Dale Woodward, the Respondent in this case, did not learn of the fact that Mrs. Eggleston had been billed for the casket which was not used in the ultimate disposition of the body of Mr. McMurray until approximately three months later, in about March of 1979, when, as it was his regular custom and practice, he instituted his quarterly review of his business's billing and receipts. Having been closely acquainted with the McMurray family and being aware of the arrangements Mrs. Eggleston had requested for Mr. McMurray's funeral (i.e., cremation), Mr. Woodward detected an error in billing due to the charge for the casket which was not ultimately used except for display purposes. Mr. Woodward thereupon immediately made a refund to Mrs. Eggleston of $805 representing the price charged her for the casket less the $60 charge legitimately due and owing for the cardboard cremation container. Dale Woodward and Dale Woodward Funeral Home have been in operation and licensed approximately 25 years and have never been the subject of such complaints and charges heretofore. The Respondents Dale Woodward and Dale Woodward Funeral Home, as established by the four "character witnesses," enjoy a good reputation for truth and veracity in the community
