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 issued to Jimmie F. Prevatt, George W. Ammen, Richard Miller and the Brevard Funeral Home North and the Brevard Funeral Home South should be revoked or suspended for violation of Chapter 470, Florida Statutes, particularly Sections 470.12(1)(k), 470.12(1)(h), 470.12(2)(d), 470.12(2)(i), 470.12(2)(p) and 470.12(4)(a) and Rule 21J-7.10 of the Rules of the State Board of Funeral Directors and Embalmers, Florida Administrative Code.
Findings Of Fact By Administrative Complaint, Respondents, Jimmie F. Prevatt and George W. Ammen, were charged by the State Board of Funeral Directors and Embalmers with violations of subsections 470.12(1)(h), 470.12(1)(k), 470.12(2)(d), 470.12(2)(i), and 470.12(2)(p), Florida Statutes, and Rule 21J-7.10 of the Rules of State Board of Funeral Directors and Embalmers in that as licensed embalmers and licensed funeral directors, they paid or caused to be paid valuable consideration in the form of the use of the name and services of the licensed funeral establishments of which they were the licensed funeral directors in charge for use by Florida Memorial Gardens, a cemetery, in order to secure business from or through said cemetery, its affiliate organizations, its agents, and its employees, for the benefit of themselves and their respective funeral establishments; in that as licensed funeral directors in charge of licensed funeral establishments, they employed, retained or otherwise engaged Florida Memorial Gardens and its employees and agents to solicit business for their respective funeral establishments; in that they, as licensed funeral directors in charge of licensed funeral establishments, offered an inducement to Florida Memorial Gardens and its employees and agents as solicitors, agents, or canvassers for the purpose of securing or attempting to secure business for their respective funeral establishments by engaging in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice; and in that they violated the provisions of Chapter 470, Florida Statutes. By Administrative Complaint, Respondent Richard K. Miller, was charged by the State Board of Funeral Directors and Embalmers with a violation of Rule 21J-7.10, Rules of State Board of Funeral Directors and Embalmers, enacted pursuant to subsection 470.04(2), Florida Statutes, in that as a licensed embalmer and licensed funeral director he engaged in a marketing scheme involving the issuance of funeral service certificates in the form of a business-getting plan, scheme, or device not fully recognized and approved by the funeral profession as a standard funeral practice. By Administrative Complaint, Respondents, Brevard Funeral Home North and Brevard Funeral Home South, were charged by the State Board of Funeral Directors and Embalmers with violations of subsection 470.12(4)(a), Florida Statutes, in that Jimmie F. Prevatt and George W. Ammen, respectively, as funeral directors in charge, and Robert G. Weld, as owner of said funeral homes, have been guilty of acts provided as grounds for revocation of an embalmer's license as provided in Section 470.12, Florida Statutes. The Petitioner, State Board of Funeral Directors and Embalmers, seek to revoke the licenses of Respondents and impose on them the cost of these proceedings. The Complaint was dated June 9, 1976, and a copy was furnished to the Respondents herein. At the time of the filing of the Complaint, Robert G. Weld was the owner of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the filing of the Complaint Mr. Weld sold the Brevard Funeral Home North to Respondent, Jimmie F. Prevatt and to Mr. Alan P. Meindertsma. Brevard Funeral Home South was sold by Mr. Weld to Respondent, George W. Ammen, Jr. The sales were effective September 20, 1976. The sale consisted of the furnishings, equipment and funeral service business but not the land, building and fixtures of Brevard Funeral Home North and Brevard Funeral Home South. Subsequent to the sale, the State Board of Funeral Directors and Embalmers upon application reissued the funeral establishment licenses to Brevard Funeral Home North and Brevard Funeral Home South to reflect the new owners, with the same license number tags existing at the time of the ownership by Mr. Weld, reflecting that Mr. Prevatt and Mr. Ammen were the same funeral directors in charge. There was no new licensing inspection. A motion to dismiss was filed on behalf of Brevard Funeral Home North and Brevard Funeral Home South. The movants contended that the change of ownership from Mr. Weld to the new owners rendered the Complaint moot as against those establishments. The motion was denied for the reason that the parties are the same, there had been adequate notice, and the parties had an opportunity to be heard at the administrative hearing. The, Petitioner Board and this Hearing Officer has jurisdiction of the parties and subject matter. A motion to dismiss was filed for failure of the State Board of Funeral Directors to comply with Section 120.60(4), Florida Statutes, in that the agency had not given the licensees an opportunity to show that they had complied with all lawful requirements for retention of their licenses but were obligated to come immediately to a formal hearing. The motion was denied. A motion to dismiss was filed stating that the Petitioners contend the act complained of a violation of Section 470.12, Florida Statutes. Respondents contended this is a violation of the rights of Respondents under the Florida Constitution. Motion was denied. The Hearing Officer has jurisdiction. Prior to September 20, 1976, at which time Respondents Prevatt and Ammen purchased an ownership interest in Brevard Funeral Home North and Brevard Funeral Home South, Robert G. Weld, owner of said funeral homes, entered into an agreement with Gene Crowe, owner of Florida Memorial Gardens also known as Florida Memorial Cemetery. The agreement authorized the use of the names of the two funeral homes and authorized sales presentations to be made by salesmen employed by Mr. Crowe and his business organization to the general public to sell a product known as the "Eternal Rest Vault." Mr. Weld agreed to execute funeral service certificates for issuance by Mr. Crowe's organizations to purchasers of the Eternal Rest Vault in which Brevard Funeral Home North and Brevard Funeral Home South guaranteed to perform services constituting a complete funeral to be performed by one of said funeral homes at the time of need for a fixed price to be paid at the time of need. During the first half of 1976 Mr. Crowe's salesmen did in fact use the names and reputations of Brevard Funeral Home North and Brevard Funeral Home South in their sales presentations to the general public and their direct sales campaign. Mr. Weld executed funeral service certificates which were delivered to Mr. Crowe's customers by Mr. Crowe's business organizations. Mr. Weld and Brevard Funeral Home North and Brevard Funeral Home South performed funeral services pursuant to said funeral service certificates. Respondents Jimmie F. Prevatt and George W. Ammen are two of the current owners and are licensed funeral directors in charge of Brevard Funeral Home North and Brevard Funeral Home South. They did not negotiate the aforesaid agreement between Mr. Weld and Mr. Crowe but they had full knowledge of the agreement including the name of the respective funeral homes in the sales presentation of Mr. Crowe's salesmen and the use of the names of the funeral homes on the funeral service certificates. Respondents Prevatt and Ammen performed the duties of funeral directors pursuant to the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller is employed as a funeral director of the Brevard Funeral Home South and was a consultant by Mr. Crowe to his business organizations prior to the filing of the Complaint by the Petitioner. Mr. Miller consulted with Mr. Crowe and Mr. Weld regarding the sales presentation used by Mr. Crowe's salesmen in the marketing of the Eternal Rest Vault. He reviewed the form of the funeral certificates that were to be issued pursuant to said sales and at least once accompanied the salesmen during a sales presentation to a customer. Prior to the institution of the Complaint, Mr. Gene Crowe had acquired a distributorship for a product known as "Eternal Rest Vault." The sales concept used in marketing the Eternal Rest Vault is based upon the representation that the total cost of an entire funeral can be reduced by using the Eternal Rest Vault to serve as both the casket and a burial vault. Sale of the vault is directly to the public based on a preneed sale. Telephone solicitation and sales calls are made in the homes of prospective customers by Mr. Crowe's team of salesmen. The Eternal Rest Vault is intended to serve as both a casket and a vault and requires special arrangements in connection with the funeral services involved. The base of the Eternal Rest Vault incorporates a slumber bed upon which the dead human body lies. The sides and top of the vault are not used during the funeral services itself. A catafalque, a bottomless casket, is set on the base of the vault around the slumber bed and during the funeral service the body is lying in the catafalque on the slumber bed. After the funeral service is over, the catafalque is removed and the sides and top of the vault are then placed upon the base of the base of the vault and sealed. The vault is then buried in the grave. This system requires special equipment and services to be performed by the funeral home performing the funeral services. In order to be sure of a funeral home willing to perform the special services required of the Eternal Rest Vault and in order to assure potential customers of a fixed price at the time of need of a funeral service involving Eternal Rest Vault, the total funeral concept is an important integral part of the overall marketing package included in the sale of the product and the agreement between Mr. Crowe and Mr. Weld. The terms of the agreement entered into between Mr. Crowe and Mr. Weld included an arrangement whereby Mr. Crowe's salesmen would be authorized to include in their sales presentation, an assurance to their potential customers of the Eternal Rest Vault that Brevard Funeral Home North and Brevard Funeral Home South would provide funeral services involving use of the Eternal Rest Vault. The sales presentation described in the sales kit used by Mr. Crowe's salesmen during the first part of 1976 includes the language that was used by the salesmen who describe Brevard Funeral Home North and Brevard Funeral Home South as the finest funeral homes in the community with very fine reputations. The presentation included a copy of a funeral service certificate naming Brevard Funeral Home North and Brevard Funeral Home South as funeral homes in the community that were guaranteed to service the Eternal Rest Vault, a funeral service certificate was executed by Mr. Weld and mailed by Mr. Crowe's staff to the purchaser. The funeral service certificate stated a fixed price for which Brevard Funeral Home North and Brevard Funeral Home South would at the time of need provide a funeral service to the named certificate holder. The results of the arrangement included in the agreement between Mr. Weld and Mr. Crowe have been the sale of some twenty-six hundred (2,600) Eternal Rest Vaults in Brevard County and several funeral services provided by Brevard Funeral Home North and Brevard Funeral Home South pursuant to previously issued funeral service certificates for services for purchasers of the Eternal Rest Vaults. Respondents Jimmie F. Prevatt and George W. Ammen, the funeral directors in the home then owned by Mr. Weld, were told that they would be participating in the marketing arrangements included in said agreement. Mr. Prevatt and Mr. Ammen as funeral directors performed services consistent with the agreement between Mr. Weld and Mr. Crowe. Respondent Richard K. Miller was employed during the first half of 1976 by Mr. Crowe, Florida Memorial Gardens, and Mr. Weld, Brevard Funeral Home South. He performed full time duties as a funeral director for Brevard Funeral Home South and at the same time was a paid consultant, with Florida Memorial Gardens. He participated in the business organization of Mr. Crowe as a consultant and at least on one occasion accompanied one of Mr. Crowe's salesmen on a sales call and observed the entire sales presentation made to a potential Eternal Rest Vault customer. The names Brevard Funeral Home North and Brevard Funeral Home South, Respondent's establishments, were used on the certificates issued to various individuals as a result of the marketing of the Eternal Rest Vault. The Hearing Officer further finds: The agreement to allow the use of the names Brevard Funeral Home North and Brevard Funeral Home South is a valuable consideration and the use of the names was meant to secure business for the funeral homes and for the Florida Memorial Gardens, a cemetery, in the promotion of sales of the new type of vault. The valuable consideration is apparent because the new type of vault requires a funeral home and the funeral directors prepared to render special service not necessary with the traditional type of funeral arrangements. To service the product, the participating funeral home must also have a catafalque in which the vault fits. It is a valuable consideration to agree to perform a service in a particular manner with a specified product. The agreement between the then owner of the funeral homes, Mr. Weld, and Florida Memorial Gardens was strictly a business transaction and his object was to solicit more business for his funeral homes. The advice to the holder of the certificate that the two Respondent funeral homes would service the product they bought leads them directly to those funeral homes to perform the service for which they will pay at the prearranged price. The Respondents Prevatt and Ammen were fully advised of the agreement which involved the funeral homes in which they were the licensed funeral directors. Both Respondents benefited monetarily by the business thus secured and as new owners benefit from these business efforts and solicitations of the former owner, Mr. Weld. The continuation of the servicing of the product provided for in the certificates is a continuation of the solicitation effort started by Mr. Weld at the time of the original agreement. The printed certificate is entitled "Funeral Service Warrant" and states "The basis or legal representatives of the holder of the warrant shall be entitled to receive a unit of service from their choice of Brevard Funeral Home South, Brevard Funeral Home North or Florida Memorial Mortuary for:" and the name of the customers is then inserted after the sale is made. The ultimate emoluments of the sale go both to the Florida Memorial Mortuary and later, at the tire of death, to the participating funeral homes. Certificates are not presently being issued. On at least two contracts, after the Respondent funeral homes had been sold to Respondent Prevatt and Respondent Ammen, to wit December 2, 1976, the customers were advised by letter from the President of Florida Memorial Gardens, Gene Crowe: "If you will take your Funeral Service Certificate to Brevard Funeral Home North, 1450 Norwood Avenue, Titusville, I am sure they will fully explain all services and make arrangements to accept whatever monies you may wish to pay against the final funeral costs of which your certificate calls for. If there is any further questions after you have contacted Brevard Funeral Home North, please do not hesitate to call us." It is self evident that the purpose of the Funeral Service Warrant or certificate was to solicit business for the Respondent funeral homes as well as Florida Memorial Gardens. Respondent Miller was fully advised of the agreement executed by Mr. Weld and Florida Memorial Gardens and as an employee of Florida Memorial Gardens consulted with and advised those engaged in selling the said vault to be serviced by the funeral home, Brevard Funeral Home South, in which he was also employed as a funeral director. His activities were attempts to secure business.
Recommendation Suspend the license of Brevard Funeral Home North and Brevard Funeral Home South and Respondents Prevatt, Ammen and Miller for a period not to exceed thirty (30) days and levy a fine on each of the Respondent licensees not to exceed Five Hundred Dollars ($500.00) each. DONE and ORDERED this 21st day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jarold W. Regier, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202 Philip F. Nohrr, Esquire J. Wesley Howze, Jr., Esquire Nohrr & Nohrr Post Office Box 369 Melbourne, Florida 32901 Joe T. Caruso, Esquire Wolfe, Kirschenbaum & Caruso Post Office Box 1271 Merritt Island, Florida W. Ford Duane, Esquire Robertson, Williams, Duane & Lewis 538 East Washington Street Orlando, Florida 32801
Findings Of Fact Respondent is a licensed funeral director and embalmer, having been issued license numbers FE 1453, EM 1453 and FD 1281. He is currently under a five year license probation imposed by Petitioner in a December, 1982 Final Order. A condition of this probation is that Respondent not violate any provision of Chapter 455 or 470, Florida Statutes. In early 1981, Respondent contracted with the family of Jefferson Munnerlyn, deceased, for funeral arrangements. Respondent's charge for these services totaled $1,895. Decedent's brother and sister-in-law made a down payment of $200. The family agreed to pay another $990 in the belief that the Veterans Administration (VA) would pay the remaining balance. The $990 family payment was to be paid in equal shares by Decedent's brother and two sons. Decedent's brother paid his $330 share. When Decedent's sons failed to pay, Respondent sought and obtained an additional $660 from Decedent's brother, with the understanding that he would return any portion eventually paid by the sons. On April 16, 1931, Respondent received a payment of $450 from the VA, and on November 15, 1981, Respondent received a second VA payment of $650 for the funeral of Jefferson Munnerlyn. Additionally, in 1981, each of the Decedent's sons paid their $330 share of the funeral costs. By the end of 1981, Respondent had received overpayments of some $1,058 from all sources. In 1982, the VA discovered that family members had paid a total of $1,853 toward the Jefferson Munnerlyn funeral, and thereupon demanded that Respondent return $1,058 to that agency. In the meantime, however, Decedent's brother demanded that the $660 payment which had also been paid by Decedent's sons be returned to him. The VA and Decedent's brother continued to seek these amounts throughout 1982, 1983 and the first nine months of 1984. Respondent, faced with conflicting claims to the overpayments, did nothing until the day of the hearing. On October 3, 1984, he returned $660 by cashier's check to Decedent's brother, who was present in the hearing room. Respondent also indicated that he was then returning the remaining $398 in overpayments to the VA. Petitioner presented expert testimony on standards of conduct prevailing in the funeral directing profession. This testimony, set forth in Petitioner's Exhibit A, was taken by deposition. This evidence established that a funeral director is under a professional obligation to return any overpayments to the "appropriate party," and that failure to do so constitutes misconduct. However, the hypothetical questions posed to the expert witness did not assume the existence of conflicting claims to such overpayments.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's funeral directing and embalming licenses for a period of thirty days. DONE and ENTERED this 7th day of November, 1984, in Tallahassee, Florida. R. T. CARPENTER, 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 7th day of November, 1984. COPIES FURNISHED: Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 George Pinkney Post Office Box 503 Hawthorne, Florida 32640 R. C. Blanton, Jr., Director Board of Funeral Directors and Embalmers 111 East Coastline Drive Room 407 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
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
The Issue The three administrative complaints in these consolidated cases allege various violation of Chapter 470, Florida Statutes and Chapter 61G8-21, Florida Administrative Code, which regulate funeral directors and the operation of funeral establishments. Specifically, these violations are alleged: Section 470.024(2), Florida Statutes: operating a funeral establishment without a license; Sections 470.024(6), 470.036(1)(h), Florida Statutes and rule 61G8-21.00F(1), Florida Administrative Code: not being available to the public during normal business hours; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(3), Florida Administrative Code: not having the funeral director’s photograph with the license; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.005(1)(b), Florida Administrative Code: not having the latest inspection reports available for inspections upon demand; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.005(1)(c), Florida Administrative Code: not having a current copy of inspection rules or criteria available for inspection upon demand; Section 470.035(1), Florida Statutes: not having retail price list available upon inquiry; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(6), Florida Administrative Code: not having the name of the establishment and name of the funeral director displayed at the public entrance; Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.003(1)(b), Florida Administrative Code: not having sanitary floors; Section 470.036(1)(h), Florida Statutes and rule 61G8- 21.003(5), Florida Administrative Code: not having prices conspicuously marked on the caskets; Section 470.036(1)(a) and 470.031(l)(f), Florida Statutes: employing an unlicensed person in the practice of funeral directing, embalming or direct disposition; Section 470.036(1)(n), Florida Statutes: aiding and abetting an unlicensed person in any licensed activity; and Section 470.036(l)(h), Florida Statutes and rule 61G8- 21.007(3), Florida Administrative Code: failing to insure that all employees comply with laws and rules of the Board. The issues in this proceeding are whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent James B. Kerney, Jr. has been a licensed funeral director in the state of Florida for approximately 28 years, having been issued license number FE 0001557. He has been director in charge of Kerney Funeral Home in Sebring, Florida for approximately 27 years. The business is owned by him and his wife, Nancy Kerney, and is a licensed funeral home, having been issued license number FH 000182. Mr. Kerney is confined to a wheelchair as the result of an automobile accident on December 6, 1993, in which his right leg and his neck were broken. His left leg had been amputated in 1986. Mr. Kerney also requires kidney dialysis, and on Tuesdays, Thursdays and Saturdays he is transported to a renal center where he spends three hours and fifteen minutes in each session. Nancy Kerney describes her husband as “...medically- termed incomplete quadriplegic, which means that he can use his hands to some extent, but he needs assistance with everyday tasks of using his hands.” (transcript, p. 118) Mrs. Kerney is his sole caregiver; she must bathe and dress him with the assistance of an automated lift. She also has a power of attorney which permits her to sign documents on her husband’s behalf. From January 1989 until August 1995, Frank Paolella was employed as an inspector for the Department of Business and Professional Regulation, conducting inspections of various facilities regulated by that agency, including funeral homes. On February 28, 1995, after calling for an appointment the previous day, Mr. Paolella visited Kerney Funeral Home for a routine inspection. Mrs. Kerney met the inspector at the funeral home and opened the office for him. Mr. Kerney was not present. During the course of the inspection, Mr. Paolella observed that the establishment license had expired on November 30, 1994 and had not been renewed. He also observed other violations which he noted on his inspection form: there was no photograph of the funeral director displayed on the director’s license; there were numerous dead roaches on the floor; and the names of the establishment and funeral director were not displayed at the public entrance (noted as a second-time violation). In addition, when the inspector requested certain documents, neither he nor Mrs. Kerney could find them in the office. These missing documents included a copy of inspection rules or criteria, copies of signed need and pre-need contracts, copies of final bills or written agreements, and an itemized price list of merchandise and services with the establishment’s name, address and telephone number. After the inspection, both Mr. Paolella and Mrs. Kerney signed the inspection form. Mr. Paolella returned for a follow up inspection on March 21, 1995. This time he arranged to meet Mr. Kerney at the Kerney home, a couple of blocks from the funeral home. They met at 9:00 a.m. and made arrangements to meet again at the funeral home in the afternoon after Mr. Kerney finished his dialysis. That same afternoon, Mr. Kerney arrived at the funeral home in a handicapped-equipped van driven by his wife. Mr. Kerney was unable to reach the fuse box to turn on the lights, and only with some difficulty, Mrs. Kerney was able to get the lights turned on with instructions from her husband. On this visit, Mr. Paolella again observed many violations. There were still numerous dead roaches on the floor and sheets of plaster that had fallen from the ceiling to the floor. There was no price displayed on the least expensive casket; customers’ written and signed agreements were not available; the latest inspection forms and the copy of inspection rules or criteria were not available; the funeral director’s and establishment licenses were not properly displayed and the director’s and establishment’s names were not displayed at the public entrance. In addition, the funeral home license had still not been renewed. On this, as well as the prior inspection in February, Mr. Paolella noted his concern about whether, as director in charge, Mr. Kerney was reasonably available to the public during normal business hours. On or about April 5, 1995, Mr. Kerney was admitted to Highlands Regional Medical Center and was still in the hospital a month later, on May 2, 1995. (Answer to Administrative Complaint in cases no. 94-07325 and 95-07329.) On April 28, 1995, Mr. Paolella returned to Kerney’s Funeral Home, accompanied by his supervisor, James Potter. The agency had received a complaint that Kerney’s was conducting unlicensed activity. The pair approached the front door of the establishment and found it ajar, with lights on inside. They knocked and shouted out their presence, but there was no answer; they entered and proceeded to the back rooms, thinking that the inhabitant must be in the back, out of hearing range. The last room in the back is the preparation room. There they found a body laid out on the table, but no living person was present. Concerned that there may have been a problem, the inspectors went to the Sebring police station and returned to the Kerney Funeral Home with two policemen, a sergeant and a photographer. There was still no living person on the premises and the photographer took a series of photographs. The photographs accurately reflect what Mr. Paolella observed on the April 28th inspection: many dead roaches on the floor, fallen plaster from the ceiling, opened bottles and jugs of unidentified liquids, a dirty sink, tools and instruments laid out on a dirty linen, hairbrushes and combs with hairs still embedded, and the body laid out, covered except for the head. A photograph of the exterior of the building shows a permanent sign in the lawn, separate from, but in front of the building, with the name “Kerney Funeral Home”. The inspectors called the Kerney residence and Mrs. Kerney came to the funeral home. She opened the office and responded to questions. She said the Mr. Kerney was in the hospital and their son, James Kerney, III, had picked up the body and had embalmed it. The inspectors called another funeral home and arrangements were made to have the body picked up and a service and burial conducted. Mr. Kerney concedes that the funeral home license was allowed to lapse and he sent the check to renew it after the inspection by Mr. Paolella. From the end of November 1994 until the handling of Mr. Johnson (the corpse found by the inspectors) in April 1995, the home did not handle any bodies, according to Mr. Kerney. He submitted monthly affidavits to the agency reflecting this non-activity, but there is no monthly affidavit on file for the month of December 1994. By April, the license was apparently renewed. Mr. Kerney also concedes that there are long periods of time during which he is not able to be at the funeral home. The business phone rings at his residence and he arranges to meet clients at the facility. He sold Mrs. Johnson the casket for her husband by dealing with her by telephone from the hospital. He denies that he told his son to embalm Mr. Johnson, but Mr. Kerney could not explain how the body did get embalmed or why it was at his establishment unattended. Mr. Kerney signed the Johnson death certificate as the funeral service licensee. Mr. Kerney insists that he is able to embalm bodies from his wheelchair. He mixes the fluid and makes the incisions or he directs someone in his presence to perform these tasks. According to Mr. Kerney, he deliberately left roaches on the floors because after he set off aerosol sprays he let the poison keep working before cleaning up the bugs. He attributed the fallen ceiling to a water leak caused by the upstairs tenant. He also claimed that the other violations found by the inspectors were just temporary lapses and that all of the problems were quickly corrected. It is evident that serious violations occurred and that Mr. Kerney has to rely on his family, his son and his wife, to perform functions for which he is responsible. Neither Mrs. Kerney nor James Kerney, III are licensed funeral directors. Mr. Kerney is unable to spend the time at his facility to keep it in compliance with licensing regulations and criteria even if he is able to personally supervise or conduct the embalming of the occasional body handled by the funeral home.
