00-004803PL Department Of Business And Professional Regulation, Board Of Funeral Directors And Embalmers vs. Mark L. Tishman Status: Closed Recommended Order on Friday, March 23, 2001.

Summary: Revocation for funeral director who placed ad for unlicensed funeral home and who was found guilty of failing to cooperate with another agency; examination of pre-need contracts, fined $10,000, and failed to pay fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FUNERAL DIRECTORS )

AND EMBALMERS, )

)

Petitioner, )

)

vs. ) Case No. 00-4803PL

)

MARK L. TISHMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Sarasota, Florida, on February 20, 2001.

APPEARANCES

For Petitioner : Joseph W. Malka

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : Jordan L. Wallach

Jordan L. Wallach, P.A.

1800 Second Street, Suite 900

Saras ota, Florida 34236

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of fraudulent

advertising or violation of other laws directly applicable to

the funeral business.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 28, 20 00,

Petitioner alleged that Respondent was the funeral director of

the Tishman Funeral Home, which was owned by Independent

Mortuary Services International. The Administrative Complaint

alleges that Respondent was vice president and Richard Martin

was president of Independent Mortuary Services International.

The Administrative Complaint alleges that on May 26,

1999, the Department of Banking and Finance, Board of Funeral

and Cemetery Services, entered a final order against

Independent Mortuary Services International, Mr. Martin, and

Respondent revoking the certificate of authority of

Independent Mortuary Services International to sell pre-need

funeral contracts, imposing an administrative fine of $10,000,

and assessing records-examination costs of $4125. The

Administrative Complaint alleges that the respondents had

failed, upon request, to produce copies of pre-need funeral

contracts and had failed, upon request, to pay the required

records-examination costs. The Administrative Complaint

alleges that the final order required payment of the fines and

costs within 30 days of entry of the final order, but none of

the respondents had paid these sums.

The Administrative Complaint alleges that on May 28,

1999, Respondent placed an advertisement in the September 1999

GTE Yellow Pages for Sarasota promoting Tishman Memorial

Chapel. However, the Administrative Complaint alleges that

Tishman Memorial Chapter has never been licensed as a funeral

establishment under Chapter 470, Florida Statutes.

Count One of the Administrative Complaint alleges that

the discipline imposed by the Department of Banking and

Finance constitutes a violation of Section 470.036(1)(x),

Florida Statutes, which prohibits acts or omissions that

constitute a violation of Chapter 497, Florida Statutes, or

that directly relate to the ability to practice under Chapter

470, Florida Statutes.

Count Two of the Administrative Complaint alleges that

the advertising of an unlicensed funeral establishment

constitutes a violation of Section 470.036(1)(f), Florida

Statutes, which prohibits advertising in a manner that is

fraudulent, false, deceptive, or misleading.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called no witnesses and

offered into evidence 11 exhibits. Respondent called one

witness and offered into evidence two exhibits. All exhibits

were admitted.

The court reporter filed the transcript on March 13,

2001.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed

funeral director and embalmer, holding license number FE

0003136.

2. In 1990, Respondent incorporated Mark L. Tishman

Funeral Home, Inc., to operate Tishman Funeral Home. Three

years later, Respondent entered into a business relationship

with Richard Martin, another licensed funeral director and

embalmer. In 1993, Mr. Martin and Respondent incorporated

Independent Mortuary Services International (IMSI) to provide

funeral services.

3. A 1995 audit of IMSI revealed problems with IMSI's

sale of funeral pre-need contracts. IMSI lacked documentation

for many such contracts. Mr. Martin managed the business, and

Respondent was in the field. However, in July 1998, when

Mr. Martin was on vacation, Respondent discovered that

Mr. Martin had misappropriated pre-need contract funds.

4. Respondent confronted Mr. Martin when he returned.

Their relationship deteriorated, and, by early December 1998,

Respondent could no longer access corporate funds.

5. The Department of Banking and Finance commenced an

administrative proceeding against IMSI, Mr. Martin, and

Respondent. The issue in the case was whether the respondents

had failed to cooperate with agency examiners trying to

examine IMSI records concerning pre-need contracts.

6. No representative of IMSI appeared at the final

hearing, which took place on February 17, 1999. The resulting

final order, which was issued on May 26, 1999, imposed an

administrative fine of $10,000 and assessed record-examination

costs of $4125. The order imposed this fine and costs against

each respondent, individually and collectively, and gave them

30 days to pay the administrative fine of $10,000.

7. According to the final order, the Department of

Banking and Finance had mooted the request for an order

revoking IMSI's certificate of authority. The Department of

Banking and Finance had declined to reissue the certificate

when it expired on January 14, 1999, and IMSI had failed to

demand a formal hearing on this action.

8. Eventually, IMSI was liquidated. Respondent claims

to have paid some sums to the receiver, but he has not paid

the fine and costs assessed against him by the Department of

Banking and Finance, nor has IMSI or Mr. Martin.

9. Following the resolution of the Department of Banking

and Finance proceedings involving IMSI, Mr. Martin, and

Respondent, Respondent ordered an advertisement in the GTE

Yellow Pages for Sarasota. The advertisement was for Tishman

Memorial Chapel, L.L.C., and displayed Respondent's picture,

under which was his name and the letters, "LFD," with the

text, "Serving You Since 1990."

10. At no time has Tishman Memorial Chapel, L.L.C., been

licensed as a funeral establishment. Apparently, Respondent

believed mistakenly that he would be able to obtain the

necessary license prior to the publication of the yellow

pages. Claiming never to have received a proof of the

advertisement, Respondent tried to cancel the advertisement,

but was untimely in his effort, and the advertisement ran in

the yellow pages. However, Respondent never answered the

telephone number advertised as the Tishman Memorial Chapel, so

as not to exacerbate the situation.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

12. Section 470.036(1)(f) and (x) provides that the

Board of Funeral Directors and Embalmers may take disciplinary

action against any licensee guilty of:

(f ) Advertising goods or services in a

manner which is fraudulent, false,

deceptive, or misleading in form or

content.

(x ) Having been disciplined by a

regulatory agency in any jurisdiction for

any offense that would constitute a

violation of this chapter . . . or that

directly relates to practice under this

chapter.

13. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

14. Petitioner has proved that Respondent ordered a

yellow-pages advertisement for the Tishman Funeral Home when

it was an unlicensed establishment. This is an act of fraud.

15. Petitioner has proved that Respondent was

disciplined by the Department of Banking and Finance for

failing to cooperate with an agency examination of business

records concerning the sale of funeral pre-need contracts.

This directly relates to the funeral practice under Chapter

470.

16. For violations of Section 470.036(1), Section

470.036(2) authorizes the Board of Funeral Directors and

Embalmers one or more of several penalties. These penalties

are to revoke or suspend a license, place a license on

probation, reprimand a license, impose an administrative fine

of not more than $5000 per separate offense, restrict the

scope of practice, impose investigation costs, and require

remedial education.

17. Rule 61G8-30.001(4) provides that the disciplinary

guidelines for a violation of Section 470.036(1) is:

(f) [For a violation of Section]

470.036(1)(f), Florida Statutes, the range

is from] : Fine of $2500, 6 months[']

probation, and costs [to] Revocation.

(x) [For a violation of Section]

470.036(1)(x), Florida Statutes, the range

is from] : Reprimand, fine of $1000, 6

months['] probation, and costs [to]

Revocation.

18. Rule 61G8-30.001(6) provides that the Board may

deviate from the penalty guidelines due to aggravating or

mitigating circumstances, such as the severity of the offense,

the damage caused by the violation, and the effect of the

penalty on the licensee's livelihood.

19. Neither party developed much evidence concerning

aggravating or mitigating circumstances. In the absence of

persuasive evidence as to aggravating or mitigating

circumstances, the Board of Funeral Directors and Embalmers

should confine itself to the guideline penalties.

20. In isolation, the advertising violation would call

for the minimum penalty due to the lack of public damage,

which Respondent prevented by not exploiting the improper

advertisement for commercial advantage.

21. The failure to cooperate with an agency examination

of business records, which are clearly connected to the

funeral business, is more serious because it jeopardizes the

public welfare to a greater extent. Generally, the evidence

does not establish in much detail the extent of the public

injury arising out of the violation, which was a failure to

cooperate with an agency examination, not the underlying

mishandling of pre-need contracts.

22. Two factors militate in favor of a penalty at the

maximum end of the range. First, Petitioner has proved two

offenses. Second, Respondent has never paid the costs and

fines imposed upon him, jointly and severally, by the

Department of Banking and Finance for his acts and omissions

in connection with the agency's examination of the IMSI

business records involving the sale of pre-need contracts.

Respondent's failure to discharge these professional

obligations suggests that he is unfit for licensure under the

Board of Funeral Directors and Embalmers.

23. The maximum penalty specified in the rules of the

Board of Funeral Directors and Embalmers is revocation, not,

as Petitioner advocates, revocation, fines, and costs. Absent

sufficient evidence justifying an upward deviation from the

penalty guidelines, the proper penalty in this case is

revocation.

RECOMMENDATION

It is

RECOMMENDED that the Board of Funeral Directors and

Embalmers enter a final order revoking Respondent's license.

DONE AND ENTERED this 23rd day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March, 2001.

COPIES FURNISHED:

Madeline Smith, Executive Director

Board of Funeral Directors and Embalmers

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Joseph W. Malka

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jordan L. Wallach

Jordan L. Wallach, P.A.

1800 Second Street, Suite 900

Sarasota, Florida 34236

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.