Findings Of Fact Respondent has been licensed in Florida since December 16, 1994, as a licensed funeral establishment, holding license number FH 0002113. Edgar Harrell, who is also known as Ed Harrell, has never been a licensed funeral home director in Florida. Mr. Harrell owns Respondent and has owned at least part of Respondent at all material times. Respondent advised Petitioner of a name change. By letter dated January 31, 1995, to "Ed Harrell and Jerome Smith, Owners, Ed Harrell Funeral Home," Petitioner informed Respondent that its request for a name change had been processed and was effective as of January 31, 1995. The name was changed from "Smith-Harrell Funeral Services" to "Ed Harrell Funeral Home." The name change reflected the purchase by Mr. Harrell of Jerome Smith's ownership interest in Respondent. Petitioner's investigator conducted an inspection of Respondent's facility on March 1, 1995. He completed an inspection form reflecting the results of the inspection. The items corresponding to Count I are 134, 142, and 143. The item corresponding to Count II is 139. The item corresponding to Count III is 129. The investigator marked each of these items as not satisfactory. Item 134 is: the "funeral establishment/director providing cremation services obtaining signed declaration for disposition of remains." The form states in handwriting, "Ed signed." Item 134 references Rule 61G8-31.001(2). Item 142 is: the "customer's written agreement contains name, address, telephone number of establishment and disclosure statement." Item 142 references Section 470.035(4). Item 143 is: the "customer's written agreement dated and contains signatures of customer and funeral director." Item 143 references Section 470.035(5). Item 139 is: the "itemized price list of merchandise/services with establishment name, address and telephone available." The form states in handwriting, "Old estab[lishment] name." Item 139 references Section 470.035(1) and (2). Item 129 is: the "establishment/funeral director in charge name displayed at public entrance." Item 129 references Rule 61G8-21.003(6). The investigator marked other items as unsatisfactory on the inspection form, but these were not cited in the Administrative Complaint. Petitioner proved by clear and convincing evidence that Mr. Harrell signed an Authorization for Cremation and Disposition. The agreement was dated December 15, 1994, and Mr. Harrell signed as the "licensed representative" of Respondent. Petitioner failed to prove by clear and convincing evidence that the customers' written agreements with Respondent failed to contain the correct name of Respondent. The agreements introduced into evidence bore the name, "Smith- Harrell Funeral Services," but the agreements predated the effective date of the name change to "Ed Harrell Funeral Home." The proof was inconclusive as to blank form agreements. However, Petitioner proved by clear and convincing evidence that the customers' written agreements with Respondent were signed by Mr. Harrell, rather than the licensed funeral director. In three cases, Mr. Harrell signed such agreements on behalf of Respondent. Mr. Harrell was at all times a controlling person of Respondent. Petitioner thus proved by clear and convincing evidence that Respondent aided and abetting an unlicensed person in the practice of a licensed activity in the matters set forth above. Petitioner proved by clear and convincing evidence that Respondent was still using an old price list, with the name of "Smith-Harrell Funeral Services," at the time of the inspection. Petitioner proved by clear and convincing evidence that Respondent failed to display its name or the name of a licensed funeral director at the public entrance at the time of the inspection. Neither Respondent nor Mr. Harrell committed any fraud or deceit, nor did either party attempt to commit any fraud or deceit, in the matters set forth above. Mr. Harrell simply had failed to obtain a new price list and new name display by the time of the inspection, which was little more than a month following the approval of the name change. However, Mr. Harrell offered no excuse for signing documents requiring the signature of a licensed funeral director.
Recommendation It is RECOMMENDED that the Board of Funeral Directors and Embalmers enter a final order finding Ed Harrell Funeral Home guilty of two violations of Section 470.036(1)(h) and one violation of 470.036(1)(n) and imposing penalties of a reprimand, administrative fine of $750, and costs of the entire investigation and prosecution. ENTERED on May 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 22, 1996. COPIES FURNISHED: Susan Foster, Executive Director Board of Funeral Homes and Embalmers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Attorney Miriam S. Wilkinson Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Edgar Harrell 2435-C Fowler Street Ft. Myers, Florida 33906
The Issue Whether Respondent, Gibraltar Mausoleum Corporation, has met the requirements of Chapter 497, Florida Statutes (1991), and the applicable rules to acquire control of an existing cemetery, Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park.
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 agency charged with the responsibility of licensing and regulating cemetery companies in the State of Florida pursuant to Chapter 497, Florida Statutes. David V. Toale owns burial rights in Palms Memorial Park. Venice Memorial Gardens, Inc. is an existing cemetery company located in Sarasota County, Florida which owns, controls and is licensed to operate the cemetery known as Venice Memorial Gardens. Brown, Edwards, Toale Funeral Home, Inc. d/b/a Manatee Markers and Cemetery Brokers, is a funeral home and cemetery broker located in Manatee County, Florida that owns burial rights in Palms Memorial Park. Toale Brothers, Inc. is a funeral home with locations in Sarasota County, Florida and Manatee County, Florida. Brown and Sons Funeral Home, Inc. is a funeral home located in Manatee County, Florida. Hillcrest, a Florida Corporation, is an existing cemetery company which owns, controls and is licensed to operate a perpetual care cemetery known as Palms Memorial Park located in Sarasota County, Florida. Arbor Capital, Inc., a Delaware corporation, is the owner and parent company of Hillcrest by virtue of its ownership of all outstanding stock of Hillcrest. A second company also known as Arbor Capital, Inc., a Ontario, Canada corporation, is the parent and owner of Arbor Capital, Inc., the Delaware corporation. Gibraltar is an Indiana corporation which: (a) owns and operates cemeteries; (b) owns and operates funeral homes; and (c) constructs funeral homes and mausoleums. Gibraltar has been qualified to do business in the State of Florida since October 14, 1988, and at the time it proposed to purchase the assets of Hillcrest, Gibraltar was an existing legal entity. On July 31, 1992, Gibraltar filed a Form DBF-F-35, Application For Authority To Acquire Control Of An Existing Cemetery Company (Application), with the Department for authority to purchase the assets of Hillcrest Cemetery, an existing cemetery company, and thereby gain ownership and control of the cemetery known as Palms Memorial Park. Several documents were attached to the Application, including the Agreement which had been executed by Hillcrest Cemetery, Inc. as Seller, Arbor Capital, Inc. as Shareholder for Hillcrest Cemetery, Inc., Arbor Capital Inc., an Ontario Corporation, and Gibraltar Mausoleum Corporation, as the Buyer. By this Agreement, Gibraltar is purchasing the assets of Hillcrest which includes all of the cemetery property known as Palms Memorial Park and assumes all liabilities for pre-need contracts and pre-sold merchandise. Gibraltar intends to keep all trust funds in accordance with state law and regulations and shall insure that Palms Memorial Park is maintained perpetually. The sales price of the assets and certain other sales-related figures were blacked-out in the copy of the Agreement submitted by Gibraltar with its Application to the Department. Gibraltar redacted these figures because, being a private company, it sought to keep these figures from the public record. However, in any event, a copy of the Agreement without any figures being redacted was received as evidence in this case. By letter dated August 6, 1992, the Department advised Gibraltar that certain required documents had not been submitted with the Application and that Question 4 of the Application was incomplete. It is the Department's position that it has authority to review and approve such applications without the benefit of the sales price and other sales-related figures, and had done so in the past. Therefore, the Department did not require Gibraltar to furnish the figures that had been redacted in the Agreement prior to tentative approval of its Application. Also, it is the Department's position that had the redacted figures been available before the tentative approval, the Application would still have been approved. Subsequently, Gibraltar furnished the Department the information and documents requested in the Department's letter of August 6, 1992, which brought the Application in compliance with Rule 3D-30.017, Florida Administrative Code. By letter dated October 16, 1992, the Department notified Gibraltar that the Department had tentatively approved the Application for the assets purchase of Hillcrest by Gibraltar subject to the notice of intent being advertised in the Florida Administrative Weekly. Tentative approval of the Application was the result of an investigation by the Department wherein it was determined that Gibraltar had met the requirements of Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar. The Department did not review Gibraltar's Application under the provisions of Sections 497.006 or 497.027, Florida Statutes. The Notice Of Intent To Approve A Cemetery Application was advertised in the Florida Administrative Weekly, Volume 18, Number 40, October 2, 1992. However, the Department advertised a revised Notice Of Intent To Approve A Cemetery Application in the Florida Administrative Weekly, Volume 18, Number 49, December 4, 1992, because the notice in the first advertisement was not clear as to which entity was the seller and which entity was the purchaser. The Department did not give any other form of notice of its intent to approve the Application. Specifically, the Department did not give direct notice to any individual or company that owned burial rights in Palms Memorial Park. Form DBF-F-35, incorporated by reference in Rule 3D-30.017, Florida Administrative Code, is the application form required under Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, to be filed by an applicant seeking to acquire control of an existing cemetery by acquiring the stock or purchasing the assets of the existing cemetery company that owns, controls and is licensed to operate the existing cemetery. Form DBF-F-35, is also required under Section 497.008, Florida Statutes, when there is an application for internal change of control among stockholders of an existing cemetery company that owns, controls and is licensed to operate an existing cemetery. The Department considers Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, as its authority for allowing external change of control of an existing cemetery where either the stock is acquired or the assets purchased of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery. The Petitioners, on the other hand, consider Section 497.006(2) and (3), Florida Statutes, as the Department's authority for such external change of control of an existing cemetery where only the assets of an existing cemetery company that owns, controls and is licensed to operate the existing cemetery are being acquired. The Department, however, considers Section 497.006(2) and (3), Florida Statutes, as applying to the establishment of a cemetery company for the purpose of being licensed to operate an entirely new cemetery if the Department establishes a need for a new cemetery in the community. In situations such as the instant case, the Department reclaims the licence from the cemetery company previously exercising control over the existing cemetery and issues a new licence in the name of the cemetery company gaining control of the existing cemetery. Petitioners contend that Section 497.027(2), Florida Statutes, applies to Gibraltar's Application. However, the Department has interpreted that subsection as applying only in situations where the cemetery company or other purchasing entity is attempting to use the land currently dedicated for cemetery use for something other than as a cemetery. There was no evidence that Gibraltar intended to use Palms Memorial Park for anything other than as a cemetery. Since late 1979, the Department has been approving the external change of control of an existing cemetery where the assets of the existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, are being purchased. Until about five years ago, the acquisition of an existing cemetery was accomplished by purchasing the assets of the existing cemetery company owning, controlling and being licensed to operate the existing cemetery, rather than acquiring the existing cemetery company's stock. Since October 1, 1989, the Department has approved 16 asset purchases and 27 stock purchases of existing cemetery companies, that owned, controlled and were licensed to operate existing cemeteries, under Section 497.007, Florida Statutes. Ten of the 27 stock purchases were a lump sale to one corporation. There was no evidence that the Department had experienced any regulatory problems in approving the external change of control of existing cemeteries where there was an asset acquisition of the existing cemetery company that owned, controlled and was licensed to operate the existing cemetery. There was no evidence that the external change of control of an existing cemetery where there was an asset acquisition of the existing cemetery company, that owned, controlled and was licensed to operate the existing cemetery, resulted in any type of negative impact on the public. Gibraltar currently owns and operates 14 of the approximately 164 cemeteries in the state of Florida and 51 cemeteries throughout the United States. Gibraltar is one of the larger companies owning cemeteries and funeral homes in the United States. Gibraltar's corporate structure includes a cemetery division, funeral division and a construction division. Gibraltar is a closely held, family-owned company whose stockholders have worked in the cemetery business their entire careers. None of the stockholders have ever been subject to a criminal prosecution or criminal enforcement action, or had a license revoked, denied or suspended. Gibraltar intends to have the personnel and management that is presently assigned to Manasota Memorial Park to manage and operate Palms Memorial Park while continuing to manage and operate Manasota Memorial Park. Gibraltar has the necessary experience to operate Palms Memorial Park. The Department examined Gibraltar's financial statement which was attached to the application and reviewed the financial statements of the shareholders which were included in the application. Gibraltar is a financially solvent company with a net worth of over $34,000,000.00. The purchase of the assets of Hillcrest, as proposed in the Application and set out in the Agreement, will be a cash transaction requiring no mortgages or other encumbrances on the property. Gibraltar has the financial responsibility necessary to purchase and operate Palms Memorial Park. There are seven licensed cemeteries in the adjacent Florida counties of Manatee and Sarasota. Gibraltar owns and is licensed to operate three of those cemeteries. They are: Manasota Memorial Park, Inc. and Mansion Memorial Park, Inc., located in Manatee County, Florida, and Gulf Pines Memorial Park, Inc. located in Sarasota County, Florida. On December 17, 1988, Manasota Memorial Park, Inc. entered into a Joint Settlement Stipulation For Consent Order with the State of Florida, Department of Insurance wherein, among other things, Manasota Memorial Park, Inc. agreed to pay an administrative fine of $7,500.00 but did not admit to any violation of law. On January 11, 1989, the Insurance Commissioner signed a Consent Order incorporating the terms of the Joint Settlement Stipulation. The Attorney General's office of the State of Minnesota commenced an investigation into Gibraltar's business practices in Minnesota. Gibraltar agreed to settle this matter for approximately $75,0000.00 but did not admit to any violation of law. Approximately two years later Gibraltar sold its business in Minnesota and no longer has any business interest in Minnesota. Neither the settlement with the State of Minnesota nor the settlement with the State of Florida, Department of Insurance was disclosed in Question 16 of Gibraltar's Application which provides in pertinent part as follows: 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, registration, or the equivalent, to practice any profession or occupation revoked, suspended, denied , or otherwise act [sic] against? At the time of the tentative approval of the Application, the Department had only checked for consumer complaints filed against Hillcrest. Subsequently, the Department checked for administrative or regulatory actions that had been filed against Gibraltar. There were no administrative or regulatory actions pending (open cases) against Gibraltar. No enforcement actions had been filed against Gibraltar by the Department's Bureau of Examinations. Since the review of Gibraltar's trust accounts is an ongoing process by the Department, the Department's review of the Application did not include a review of Gibraltar's trust accounts per se. However, the Department relied on a review of all administrative actions to determine if any administrative action had been taken against Gibraltar for trust account deficits. There had been no administrative action taken against Gibraltar for trust account deficits. From January, 1988 through December 1992, there were 139 of the 667 consumer complaints or inquires filed with the Department with regard to cemetery companies filed against Gibraltar or its subsidiaries. The Department found no violations, had no jurisdiction, took no action or received inquires or information requests in 110 of the 139 instances. During this same period, Gibraltar entered into 70,000 contracts with customers in Florida. Gibraltar enforces ethical sales policies and has a system designed to resolve customer complaints. There was no competent substantial evidence to show that Gibraltar's salespersons used "high pressure" sales tactics. There was no evidence that the Department had ever taken any action against a license of a cemetery owned by Gibraltar or one of its subsidiaries. There was no competent substantial evidence to show that Gibraltar's acquisition of Palms Memorial Park would adversely affect competition in the local market of Sarasota and Manatee, County. It is the Department's position that competition is not an issue to be considered when reviewing an application for transfer of control of an ongoing cemetery pursuant to Section 470.007, Florida Statutes. There is competent substantial evidence to show that Gibraltar has met the requirements of Section 497.007, Florida Statutes, and Rule 3d-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar.
Conclusions Petitioners' exception "B". Conclusions of Law omitted by Hearing Officer are hereby rejected. Each of these proposed legal conclusions are legally irrelevant to the issues involved in this case. Petitioners' contend that: Proper notices were not given by the Department. The Department specifically rejects this legal conclusion. The Department complied with Section 497.091, Florida Statutes (1991) in publishing its notice. Petitioners' allegations that additional information was necessary and that due process required additional circulation of the notices is rejected. The Department's interpretation of Section 497.091, Florida Statutes (1991) is a permissible one, and thus, Petitioners exception is hereby rejected. & 3. Petitioner's arguments that the Hearing Officer should have reached a legal conclusion as to whether a Florida cemetery company may own more than one cemetery and whether a Florida cemetery company may engage in activities outside the ones permitted under Section 497.033, Florida Statutes are legally irrelevant in this case and thus, are rejected. Petitioner's proposed legal conclusion as to whether the Department had the ability to approve either a change of the settlor and/or the transfer of irrevocable care and maintenance trust funds, with or without the consent of the affected beneficiaries/owners of burial rights is legally irrelevant in this case and, thus, is rejected. Petitioners' proposed conclusion of law as to whether the Department may issue a license under 497.007, Florida Statutes has been ruled on throughout the Hearing Officer's Conclusions of Law. Further, see ruling on exceptions to paragraph (21) of the Findings of Fact, infra. 7. & 8. Petitioners' Proposed Conclusions of Law numbered 6 and 7 as to whether a Florida cemetery company has a continuing obligation to care and maintain the perpetual care cemetery and whether perpetual care cemetery land may be transferred without the approval of the affected owners of burial rights are legally irrelevant to this proceeding. Petitioners proposed conclusion of law numbered eight as to whether Section 497.027, Florida Statutes (1991) is the exclusive authority for the sale of Florida perpetual care cemetery lands was previously ruled on within the Hearing Officer's conclusions of law. Further, the Department rejects this proposed legal conclusion. See ruling on exception to paragraph (21) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 9 as to whether the Department was required by law to consider economic matters, matters of competition, and/or the impact upon the public, in investigating the application was previously ruled upon by the Hearing Officer within his Recommended Order. Further, the Department rejects this proposed conclusion. See ruling on exception to paragraph (17) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 10 as to whether the Department followed Rule 3D-30.017, Florida Administrative Code in approving the sale of the perpetual care cemetery land know as Palms Memorial Park was previously ruled upon by the Hearing Officer in his Recommended Order. The Department rejects this proposed legal conclusion. Further, see ruling on exception to paragraph (21) of the findings of fact infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioners and allowing Gibraltar to purchase the assets of Hillcrest as detailed in the Agreement and be issued a license to operate Palms Memorial Park. RECOMMENDED this day 25th of January, 1994, 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 25th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6635, 92-6884, 92-6885 AND 92-7886 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 this case. Petitioners, Venice Memorial Gardens, Inc., Toale Brothers Inc., and Brown and Sons Funeral Home, Inc.'s Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2-7(1,7,8,9,10 & 12, respectively); 8,9 & 11(28);12(10);19(35); 20(36); 21(35); 24(30); 27- 30(37,38,41 & 28, respectively);32(3); 36(2); 37(19); 39 & 41(4); 42(19); 43(5); 45(6); 46(1); 47(11); 48(20); 49(12); 50(13); 51(25); 55-56(20); 60(12); 61(17); 76-79(18); and 80(19). Proposed finding of fact 1 is covered in the Statement of The Issue. 3. Proposed findings of fact 10, 13 - 17, 22, 23, 25, 31, 33, 34, 35, 38, 40, 44, 57, and 63 - 75 are neither material nor relevant. Proposed findings of fact 52, 53, 54, 58, 59 and 62 are legal opinions and should be covered in the Conclusions of Law. Proposed findings of fact 18 and 26 are not supported by competent substantial evidence in the record. Petitioners, David V. Toale and Brown, Edwards, Toale Funeral Home, Inc.'s Proposed Findings of Fact: 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: A.1-A.6(18,19, otherwise neither material nor relevant); B.7-B.10(7,12, otherwise neither material nor relevant); C.11-C.40(10,12,13,28,30,32,35,36,37, otherwise neither material nor relevant, cumulative or not supported by competent evidence in the record)); D.41-D.44(7,8,12 & 13, otherwise neither material nor relevant, cumulative, subordinate or unnecessary); E.45-E.50(3, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); F.51-F.53(2,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); G.54-G.57(4,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); H.58-H.60(5, otherwise neither material nor relevant); I.61-I.80(11,15,17,20,21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); J.81-J.85(21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); K.86- K.91(20,35, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); L.92-K.93(17,21); M.94-M.100(8,12,17, otherwise neither material nor relevant); M.101-M.103(11,12,13, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); N.104-M.107(21, otherwise neither material nor relevant, cumulative, or unnecessary); O.108- O.113 (29,30,36,37,38,39,40 & 41, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); and P.114-P.120(35, otherwise neither material nor relevant, cumulative, unnecessary or not supported by competent substantial evidence in the record). Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(12); 2(7); 3(21); 4- 6(23-25); 7(12); 9(24); 10(23); 11(20); 12-14(21); 15-16(25); 17(26); and 18(27). Proposed findings of fact 8 and 19 are neither material nor relevant. Respondent, Gibraltar's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2(21); 3(23- 25); 4(17); 5(14,16); 6(17); 7(18); 8(21,22); 9(21); 10(25); 11(25-27); 12(12); 14(12); 16(21); 17-19(39-41); 20(41); 21(41); 23(29,43); 24-26(32-34); 27(28); 28(31); 29(13,15); and 30-33(44,45). Proposed findings of fact 13, 15 and 22 are neither material nor relevant. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Edwin R. Hudson, Esquire Henry & Buchanan, P. A. 117 South Gadsden Street Tallahassee, Florida 32301 James R. Brewster, Esquire Suite 203, The Walker Building 547 North Monroe Street Tallahassee, Florida 32301 Bridget L. Ryan Assistant General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Harry R. Detwiler, Jr., Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact The Respondent is a licensed funeral director and embalmer holding license numbers 1231 and 1250 respectively. Clarence Quinn, a policeman employed by the Delray Beach Police Force testified that he has known the Respondent for approximately 35 years and at one time lived with the Respondent for an extended period of time. He testified that during the funeral of his mother on or about May 20, 1976, he encountered numerous problems in attempting to make the necessary funeral arrangements. He testified that the Respondent stayed in a drunken state for a two day period beginning May 21 and that due to his inability to make satisfactory arrangements with the Respondent, he had to remove his mother's body to another funeral home to make the necessary embalming and funeral arrangements. Messr. Quinn encountered similar problems with the Respondent during the funeral of his nephew during 1972. Lillian Rohming, Respondent's sister, also corroborated the testimony of Quinn and testified that he is suffering from an alcoholic problem which is, in her opinion, destroying him as a person and impairing his ability to function as a funeral director and embalmer. Messr. Hamon Thompson, presently employed by Meking Industries, was formerly employed by Respondent for approximately 8 or 9 years. During this period of time, he assisted the Respondent in making funeral arrangements and performed general staff duties 3 to 4 hours daily during afternoon and evening hours. He testified that it was not uncommon for the Respondent to remain in an intoxicated state frequently for periods lasting 3 to 4 days. To the best of his ability, he discouraged the Respondent and others from bringing alcohol on the premises. This was done, based on his observation of the Respondent's performance and/or lack thereof when he imbibed alcohol. He testified that without question, the Respondent is one of the more excellent embalmers and funeral directors in the area while sober but that within the last few years, he consumes alcohol excessively which has been detrimental to his performance as an embalmer and funeral director. He, like other witnesses who testified, including Lauren Braxton, Respondent's sister, Joseph Harrington, an acquaintance of Respondent's for approximately 20 years and Joe Poiter Jerkins, another of Respondent's sisters, all testified as to the severity of Respondent's alcoholic problems. The evidence is that while drinking alcohol, the Respondent is generally unresponsive to the requests of families during funerals; he occasionally lies down in empty caskets; he blows the siren while mourners including family members are viewing bodies and he occasionally interrupts funerals when, in the Respondent's opinion, the funeral ceremony lasts too long. James E. Shelton, an assistant of Respondent for numerous years, testified that based on his relationship with the Respondent, he (Respondent) has conducted himself in a mannerable fashion and that alcoholism is in no way a problem which affects the Respondent's ability to function as an embalmer or funeral director. He testified that although it is true that the Respondents business has fallen off recently, he attributes this decline due to conflicts respecting the ownership of the business. Based on the foregoing findings, I am constrained to conclude that the evidence compiled herein necessarily compels a conclusion that the Respondent is an habitual drunkard as alleged in the administrative complaint filed herein and I shall so recommend. Consideration was given to the contrary testimony of witness Shelton and Respondent's wife, Ester B. Poitier. However, on balance, the weight of evidence supports a finding that the Respondent is suffering from an alcoholic problem which has hampered his ability to function as a licensed embalmer and funeral director. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's license to practice as a licensed embalmer and funeral director be revoked. ENTERED this 17th day of March, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones & Gay Florida Title Building Jacksonville, Florida 32202 Hartman Delano Poitier 379 South Dixie Highway Deerfield Beach, Florida 33441 Ronald T. Giddens, Secretary-Treasurer State Board of Funeral Directors and Embalmers 6501 Arlington Expressway, Suite 208 Jacksonville, Florida 32211
The Issue Whether the licenses of the Respondents, or any of them, should be revoked, annulled or suspended, or whether the Respondents, or any of them, should be otherwise disciplined for "funeral directing" at an unlicensed "funeral establishment."
Findings Of Fact Respondent Carl F. Slade holds funeral director's license number 588 and embalmer's license number 733; Respondent Richard H. Clark holds funeral director's license number 1057 and embalmer's license number 1225; Respondent Vista's Cuban-American Funeral Home, Ltd. holds establishment operating license number 1068. Respondent Slade is the licensed funeral director and embalmer in charge of Respondent Vista's Cuban-American Funeral Home, Ltd. Vista's Memorial Gardens Cemetery has a building on its premises but is not licensed. Respondent Richard Clark is employed, and has been so employed at all times pertinent to this hearing, by both Respondent Vista's Cuban-American Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery. He performs services for both entities but does not work at the funeral home location. Respondent Clark is regularly employed on a forty (40) hours per week basis at the Vista's Memorial Gardens Cemetery and has his office in that location. The locations of Respondent Vista's Cuban-American Funeral Home, Ltd. and Vista's Memorial Gardens Cemetery are several miles apart on Red Road in the Miami, Dade County, area. An administrative complaint was filed against Respondents by Petitioner, State Board of Funeral Directors and Embalmers, on September 8, 1978, alleging that the Respondents were in violation of the statute prohibiting solicitation and, through Respondent Clark, were "directing funerals" at an unlicensed "funeral establishment." The Respondents requested an administrative hearing. A motion to dismiss by the Respondents was denied. At the time of the hearing the charges involving solicitation were abandoned by the Petitioner Board. Vista's Memorial Gardens Cemetery is a division of Pershing Industries, Inc., an interstate public stock company. Pershing Industries, Inc. is an 85 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. The funeral home is located at 1825 NW Red Road, and the cemetery is located at 14200 NW Red Road. The general manager of the cemetery is also a general manager of the funeral home. The other general partner is funeral director, Respondent Carl F. Slade, who is also a 15 percent limited partner in Respondent Vista's Cuban-American Funeral Home, Ltd. Respondent Slade owns no stock in Pershing Industries, Inc. The Respondent funeral home is licensed to operate a funeral establishment at 1825 NW Red Road and 57th Avenue in Hialeah, Florida. The building at Vista's Memorial Gardens Cemetery at 14200 Red Road, where Respondent Clark works, has a display room containing four caskets for selection by the customers but has no funeral parlor or embalming room. The duties of Respondent Clark other than the sale of plots at the cemetery include: Meets the public; Discusses funeral arrangements with families and financing, whether for present or future need; Collects details of families' desires for funerals and information required for the removal of remains and release to a funeral home, and information required for the completion of death certificates required by state law; Displays and offers for sale caskets from a display area within the building on the cemetery premises; Forwards information collected and details regarding preliminary arrangements made at the cemetery on forms provided by Respondent Vista's Cuban-American Funeral Home, Ltd. to the funeral home for handling; and Presides at and assists other members or employees of Respondent Vista's Cuban-American Funeral Home, Ltd. in services at the cemetery. On a day prior to September 8, 1978, Ms. Louise Pakenhem went to Vista's Memorial Gardens Cemetery where Respondent Clark was employed. She told Clark her husband, John Pakenham, was critically ill and negotiated a contract with Clark. Ms. Pakenham paid $25.00 down and agreed to pay the balance at the time of her husband's death. She discussed the funeral arrangements with the Respondent, which resulted in a prearrangement. Respondent Clark secured Ms. Pakenham's signature on a prearrangement contract and on a form to release her husband's body to the funeral home. Clark obtained the necessary information for a death certificate. He then sent the form and said information to Respondent Vista's Cuban-American Funeral Home, Ltd. All necessary items had been done with the exception of payment for the services in the amount Respondent Clark had estimated would be needed when Mr. Pakenham died. On the day after the contract and arrangements had been made, Ms. Pakenham, who was in fact a widow, cancelled both the burial rights contract and the arrangements by certified letter. The cemetery and Respondent funeral home cancelled both contracts and returned the $25.00. It is immaterial that Ms. Pakenham deceived Respondent Clark as to her need for a professional funeral director. Respondent Slade receives at his place of business at Respondent Vista's Cuban-American Funeral Home, Ltd. information on funerals from Respondent Clark. Respondent Slade arranges for transportation of bodies and the preparation thereof, and at times supervises and directs funerals in the chapel of Respondent Vista's Cuban-American Funeral Home, Ltd. and at Vista's Memorial Gardens Cemetery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that: Respondent Carl F. Slade and Respondent Richard H. Clark cease and desist from practicing funeral directing at Vista's Memorial Gardens Cemetery; A fine be imposed on Respondent Slade and Respondent Clark of $250.00 each; and The license of Respondent Vista's Cuban-American Funeral Home, Ltd. be suspended until the funeral business in the unlicensed funeral establishment at Vista's Memorial Gardens Cemetery is discontinued, or until such time as no funeral business is referred to Respondent Vista's Cuban-American Funeral Home, Ltd. from that establishment. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 R. G. Maxwell, Esquire 135 Westward Drive Miami Springs, Florida 33166 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Petitioner, vs. CASE NO. 78-1698 CARL F. SLADE, F.D., VISTA'S CUBAN-AMERICAN FUNERAL HOME, LTD., and RICHARD H. CLARK, F.D., Respondent. /
Conclusions THIS MATTER came before the Board of Funeral Directors and Embalmers (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(j), Florida Statutes, on March 11, 1997, in Miami, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Leon M. Biegalski, Esquire. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the Board meeting. Upon consideration of the Administrative Law Judge's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings: EINDINGS OF FACT 14. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is competent, substantial evidence to support the Administrative Law Judge’s Findings of Fact.
