Findings Of Fact Upon the evidence presented, the following findings of fact are made: Respondent Poitier is a licensed funeral director and embalmer, having been issued license numbers FE 1641, FD 1456 and EM 1641. Respondent Poitier Funeral Home is a licensed funeral establishment, having been issued license number FH 803. On the twenty-fifth (25th) day of August, 1982, at approximately 5:00 a.m., Amos Williams, a transient, suffered a heart attack at the Miami Rescue Mission, 716 North Miami Avenue, Miami, Florida. He was transported by the Miami Fire and Rescue squad to Jackson Memorial Hospital where he was pronounced dead at 6:24 a.m. and transferred to the Medical Examiner's office at 7:00 am. on said date. Cora Holland, the sister of Amos Williams, was informed of the death of her brother on Friday, August 27, 1982, at 7:30 p.m., when she received a call from Reverend Sawyer. Reverend Sawyer asked if she would be coming to Florida, and she told him she would be there late Saturday or early Sunday. Minutes later she received a call from the Medical Examiner's office of Dade County, who informed her of her brother's death again, stating that they had held the body for almost 72 hours, and the law said they could not hold the body longer than 72 hours. She said she would be in Florida soon, and they responded that they could hold the body a little longer. On August 28, Saturday, at 9:10 am., Reverend Sawyer called the Medical Examiner's office and stated that Mrs. Holland was coming to Miami on August 29 to make arrangements with the Poitier Funeral Home. Sawyer was advised that if he was acting as her agent the office would accept his signature for the release of the remains since the morgue was overcrowded. Thereafter, on that same day, Reverend Sawyer called Poitier Funeral Home and told the Respondent that he had communicated with the sister of the deceased. Reverend Sawyer told him that the sister had given him authorization to handle the remains until her arrival in Miami. The Respondent stated that when the sister arrived there if she wanted to use any other funeral establishment the body would be released to such establishment. Further, that if there was a problem financially, that Poitier agreed to furnish free the casket, flowers, clothing, hearse and a family car for the sister if she came, but the grave would have to be paid for by others. Subsequently, Reverend Sawyer executed and delivered a "Release of Remains" which authorized the release of the body to Poitier Funeral Home and granted permission to embalm and make all necessary preparations for the funeral. This release was furnished to the Medical Examiner and the body was released to the said funeral home. Upon examining the remains at the funeral home, the Respondent found putrefaction had set in. By reason of said condition, embalming was required and necessary to preserve the body for public health reasons. Ms. Holland arrived in Miami at 4:30 p.m. on August 29, Sunday, and prior to her arrival in Miami had never heard of the Respondent Poitier or the funeral establishment. A friend recommended her to Bain Funeral Home and that evening (7:00 or 8:00 p.m.) they arrived at the Bain Funeral Home where the attendant telephoned the funeral director, Barbara Caldwell, who informed Ms. Holland to return to the funeral home on Monday morning. Up through and including Sunday, August 29, 1982, she had given no one authorization to obtain the body, had given no authorization to embalm the body, and no funeral arrangements had been made. Ms. Holland arrived at the Bain Funeral Home on August 30, Monday, in the morning and discussed with Ms. Caldwell the arranging for release of the body from the medical examiner, which is when Ms. Holland remembers she learned that the body had been released to Poitier Funeral Home, a release she had not authorized. Later that same day, Respondent Poitier telephoned her in a three- way conversation with Barbara Caldwell also on the line. In that conversation, Respondent stated that if she would rather have Bain's Funeral Home handle the body, to come get the body. The Respondent also said he wanted Ms. Holland to pay him $175.00 for embalming the body, to which she responded that she had not authorized him to embalm the body. Respondent then stated to Ms. Holland that if he released the body to Bain's Funeral Home he wanted her to sign a waiver releasing Poitier, the medical examiner and Reverend Sawyer from any liabilities thereafter. At the conclusion of the conversation, Respondent Poitier demanded that she would have to sign this waiver or she would have to pay him $175.00 for embalming the body in order for him to release the body. Ms. Holland consulted Peter Kneski for legal assistance on August 31, 1984, her problem being that she wanted the body of her relative who had recently passed away to be released to Bain Funeral Home, which body was then located at Poitier Funeral Home. The complicating factor was that there was a demand by Respondent Poitier that Cora Holland pay certain monies to Respondent in order to secure release of the body. Upon Mr. Kneski's calling by telephone the Respondent Funeral Home, he confirmed that the body had been embalmed, and secondly, that Respondent Poitier was insistent that money be paid for reimbursement of expenses in order to have the body released from that funeral home. Mr. Kneski, in his second telephone conversation with Respondent on August 31, 1982, informed the Respondent Poitier of the fact that he was retained as the attorney for Cora Holland concerning the body of Amos Williams, and in his capacity as attorney for Ms. Holland made a request of Respondents to release the body to Bain Funeral Home. Mr. Kneski did not remember if, as a result of this second conversation, the body was released, but the final result was that the body was ultimately released. However, he also testified to recalling that Respondent Poitier told him the body had to be picked up by a specific time and after that time the body would not be released. Barbara Caldwell, Funeral Director of Bain Funeral Home, first met Cora Holland through a telephone conversation on Sunday, August 29, when Ms. Holland requested that Bain Funeral Home handle the funeral arrangements for her brother. Ms. Caldwell's memory is that she then called the Medical Examiner's office and learned that the body had been previously released to Poitier Funeral Home. Ms. Holland told her that such authorization for release had not been given by herself. On Tuesday, August 31, 1982, Ms. Caldwell talked with Respondent Poitier by telephone after Ms. Holland had returned from her visit with the attorney. Respondent Poitier still maintained his posture of not releasing the body without the payment of $175.00 and the release of liability. On that Tuesday evening another telephone coversation occurred between Caldwell and Poitier, the conversation occurring after Ms. Holland stated she had been advised by the attorney not to sign anything but a release of remains, and the conversation relating to this advice. Poitier's response was the same as in the past, i.e., that he wanted a release of liability, release of remains and $175.00. The final conversation occurred on Wednesday, September 1, in the evening when Poitier told them that she should come get the body. The body was then picked up. The contract between Holland and Bain Funeral Home was entered into on September 1, 1981, for funeral arrangements. Holland and Bain did not attempt to physically obtain the body until September 1 due to the fact that prior to that time the Respondent had not been furnished with a satisfactory release. Providence Padrick, Investigator for Petitioner, testified to statements made to her by Respondent Poitier during the course of the investigation. Poitier related to her that he was contacted by Reverend Sawyer, who reported himself to be a friend of the family of Ms. Holland, with Reverend Sawyer affirming he represented Ms. Holland, and that the relationship between Sawyer and the deceased was one of friendship. The authorization for release was signed by Reverend Sawyer, and Poitier said he had gone to Reverend Sawyer's home and asked him to sign the release and then Poitier proceeded to have one of the staff members obtain the body from the Medical Examiner's office. This was all accomplished by August 28, 1982. When he was asked if he had requested any type of payment for services, when the family demanded the release, he denied the $175.00 request, but he did state that he contacted Barbara Caldwell of Bain Funeral Home and told her he would release the deceased if Ms. Holland would sign authorization as next of kin and if she would sign an affidavit releasing his funeral home of any responsibility -- two separate documents. He also admitted that the funeral home had embalmed the deceased and, when questioned as to why this information had not been included in the monthly affidavit of cases embalmed, he said he could not recall who did the embalming. The deposition testimony of the Board of Funeral Directors and Embalmers Executive Director, R. C. Blanton, established that the affidavits of cases embalmed and bodies handled for the months of August and September, 1982, for the Respondent Funeral Home did not list the case of Amos Williams. It was not until March, 1983, that the affidavit filed with the Board of Funeral Directors and Embalmers listed the fact that Amos Williams had, indeed, been embalmed at that funeral home (Petitioner'S Exhibit 8). The testimony of Steve Granowitz, former inspector for the Department of Professional Regulation, established that an inspection was conducted of the Respondent Funeral Home on March 18, 1983. It was learned through that inspection that Respondents failed to conspicuously display the prices where caskets were displayed and no itemized retail price list was available to the public for its use as set forth in Section 470.035, Florida Statutes. Indeed, Respondent Poitier stated to the inspector that he did not know of the price list regulation and would get a price list made in the next 5-6 weeks. When Granowitz returned in August, 1983, he found that the caskets were in the casket room with prices posted as required.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondent guilty of violating Sections 470.036(1)(t), 470.36(1)(e), Florida Statutes, and Rule 21J-2l.03, Florida Administrative Code, and Section 470.036(1)(h), Florida Statutes, not guilty of the remaining charges, and imposing a $1,000 administrative fine. DONE and ENTERED this 18th day of July, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1984. COPIES FURNISHED: Joseph W. Lawrence, Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gus Efthimiou, Jr., Esquire 1025 Dupont Building Miami, Florida 33131 Edward O'Dowd, Executive Director Board of Funeral Directors and Embalmers 111 East Coastline Drive Room 507 Jacksonville, Florida 32202 =================================================================
Findings Of Fact In September, 1975 two sons of Mrs. Pearlene Dillard were drowned. At the hospital Mrs. Dillard selected Stevens Funeral Home to provide the burial services. Later that evening she was visited by Rudolph Gilliam who was a friend of one of her sons. Mr. Gilliam had been phoned by a roommate of one of these sons who was very upset and requested he go to Mrs. Dillard's home to assist in the funeral arrangements. At the time Mr. Gilliam was not an employee of Johnson's Funeral Home, but he had on occasion worked at the funeral home as an assistant at funerals. Gilliam is self-employed and owns a restaurant. When Gilliam talked to Mrs. Dillard and learned that she had already engaged the services of another funeral director he did not pursue the matter. However, Mrs. Dillard asked him to take her to Johnson's Funeral Home which he did on the evening of September 18, 1975. He also took her brother, a daughter, and a niece. Upon arrival at Johnson's Funeral Home Gilliam introduced Mrs. Dillard to Joe Johnson and departed the room. Johnson showed Mrs. Dillard caskets and explained to her some of the provisions relating to funeral arrangements. Thereupon Mrs. Dillard decided that she preferred to use Johnson's Funeral Home. She thereafter went to the hospital and signed a second consent to have the bodies committed to Johnson's Funeral Home. Under oath Mrs. Dillard denied that Gilliam had told her that Johnson could provide a cheaper funeral as she alleged in an affidavit that was admitted into evidence as Exhibit 2. She further indicated that she had made up her mind independent of anything that Gilliam had said and that she was happy with the arrangements that she had procured from Johnson's Funeral Home. She acknowledged that she had changed her mind before the bodies had ever been released by the hospital to Stevens Funeral Home and considered that she had the right to do so. Subsequent to this incident, Jerome Stevens, the licensed Funeral Director of Stevens Funeral Home, filed a complaint that led to these charges. His affidavit was admitted into evidence without objection as Exhibit 1. Exhibit 3, the Affidavit of Fannie Mae Goodman was admitted into evidence without objection. Therein Mrs. Goodman stated that Rudolph Gilliam came to her house three times trying to get her to take the body from Stevens Funeral Home and give it to Johnson's Funeral Home which she declined to do. Rudolph Gilliam testified on behalf of Respondent. He does not know Fannie Mae Goodman and denied any attempt on his part to request her to change from Stevens Funeral Home to Johnsons'. He was a classmate of Mrs. Goodman's daughter, and went to the house after learning of her father's death. He did talk to Mrs. Goodman's daughter but he did not talk to Mrs. Goodman. On September 19, 1975 Stevens went to Mrs. Dillard's home to inquire why she had changed the funeral services to Johnson. She told him that she had changed her mind and was going to use Johnson's for the burial services. Mrs. Dillard made no deals with Gilliam and did not discuss any funeral arrangements with him. The discussions pertaining to funeral arrangements were made between her, her brother, and Johnson. Joe Johnson testified in his own behalf. He handled the funeral arrangements for Mrs. Dillard, and Mrs. Dillard did come to his funeral home on the evening of September 18, 1975 in company with Gilliam. He stated that Gilliam was not working for him, that Gilliam did occasionally work for him as an assistant during funerals. At the funeral services for Mrs. Dillard's sons Gilliam acted as an attendant and drove a family car. For these services Gilliam was paid $10.00 for the use of Gilliam's car and $10.00 for his services as an attendant. Johnson at no time paid any commission to Gilliam or offered to pay any commission to Gilliam. Prior to the arrival of Mrs. Dillard Johnson was not in contact with Gilliam and Gilliam was not working for him. Johnson has not had enough business for the past several months to warrant the employment of any assistants other than himself and his father, who is also a licensed funeral director and embalmer. Johnson acknowledged that he placed the advertisement in the newspaper that is contained in Exhibit 4.
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. /
