04-003696 Department Of Business And Professional Regulation, Board Of Funeral Directors And Embalmers vs. Metro Professional Services Status: Closed Recommended Order on Friday, August 5, 2005.

Summary: Respondent entered information on Petitioner`s website pursuant to the instructions of an employee of Petitioner and provided information to Petitioner. There was no evidence of fraud or deceit. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF FUNERAL DIRECTORS AND )

EMBALMERS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3696

)

METRO PROFESSIONAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case before

Carolyn S. Holifield, duly - designated Administrative Law Judge

of the Division of Administrative Hearings, on June 14, 2005, in

St. Pete rsburg, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Garvin B. Bowden, Esquire

Gardner, Wadsworth, Duggar, Bist

& Wiener, P.A.

1300 Thomaswood Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues in this case are : (1) Whether Respondent, Metro

Professional Services, violated Subsectio n 470.036(1)(g),

Florida Statutes (2004) 1/ ; (2) Whether Respondent violated

Subsection 470.036(1)(h), Florida Statutes, through violation of

Florida Administrative Code Rule 61G8 - 24.010( 2 ); and (3) if so,

what penalties should be imposed against Respondent 's removal

service license.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Board of Funeral Directors and Embalmers

("Department") , filed an Administrative Complaint on August 26,

2004, and a Corrected Administrativ e Complaint on November 23,

2004 . The two - count Corrected Administrative Complaint alleged

that Respondent violated Subsection 470.036(1)(g), Florida

Statutes , by committing fraud and deceit in abusing the

Department ’s i nternet s ystem to attempt to effect uate a change

of ownership without following the proper legal procedure for

doing so ; and Subsection 470.036(1)(h), Florida Statutes, by

violating Florida Administrative Code Rule 61G8 - 24.010(2) in its

failure to notify the Department of a change of owners hip within

ten days of making such change.

Respondent disputed the allegations in the Administrative

Complaint and the Corrected Administrative Complaint and

requested a formal administrative hearing pursuant to Subsection

120.57(1), Florida Statutes. The Department referred the case

to the Division of Administrative Hearings ( " DOAH " ) on

October 13, 2004.

At the final hearing, the Department presented the

testimony of Ken Roberson and Andrea Beacraft. The Department’s

Exhibits 1 through 14 and 19 t hrough 22 were admitted into

evidence. Respondent presented the testimony of Stanley Cooper

and Herbert DeGroat. Respondent did not submit any exhibits.

The Transcript of the proceeding was filed on June 23,

2005. Both parties filed Proposed Recommende d Order s which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional

Regulation , Board of Funeral Directors and Embalmers, is the

state agency charged with regulating the p ractice of funeral

directing , embalming , and related activities pursuant to S ection

20.165 and Chapters 455 and 470, Florida Statutes.

2. At all times material hereto, Respondent’s r emoval

s ervice L icense No. FR38 has been listed as current and active

with the Department.

3. In 1985, before such activity was regulated by the

State of Florida, Stanley Cooper began operating a removal

service known as Metro Professional Services. In 1988, Herbert

DeGroat began working for Metro Professional Services a s a

driver , and within two years , he was assisting Mr. Cooper with

management of the removal service business. Messrs. Cooper and

DeGroat are now co - owners and operators of Respondent 's r emoval

s ervice.

4. In 1991, Mr. Cooper was convicted of multiple federal

and state drug conspiracy and trafficking charges. Upon

Mr. Cooper’s incarceration for such convictions, Messrs. DeGroat

and Cooper entered into an agreement whereby Mr. DeGroat would

continue to run the company in Mr. Cooper’s absence, and the t wo

would become equal and joint owners of the company upon

Mr. Cooper’s release from prison.

5. In order to operate the business as a Florida

corporation, Mr. DeGroat created DeGroat, Inc. , in 1992 and

continued to do business as Metro Professional Serv ices.

6. In 1995, the State of Florida began regulating removal

service businesses. Respondent applied for licensure in 1995 as

DeGroat, Inc. , d/b/a Metro Professional Services. At that time,

Mr. Cooper remained incarcerated and was not listed as an

o fficer, director, or shareholder for DeGroat, Inc. The

application was approved , and the removal service license was

issued to Respondent on August 15, 1995.

7 . Upon his release from incarceration, Mr. Cooper went

back to work for Respondent . To carry out their original

agreement and to select a more self - explanatory business name,

Messrs. Cooper and DeGroat created a new corporation named Metro

Mortuary Transport, Inc. This new corporation was filed with

the Florida Department of State on September 2 3, 2002. Two days

later, September 25, 2002, Mr. Cooper faxed an application to

the Department to change the name and address on Respondent’s

r emoval s ervice license. Mr. Cooper submitted the written

request at the direction of Department employees and u sed the

particular official form recommended by Department employees.

8 . Respondent was notified by the Department that it

failed to pay a $25.00 processing fee necessary to effectuate

the name and address change requested in the September 25, 2002 ,

ap plication. Mr. Cooper learned that this fee was not paid, and

he remitted the fee on behalf of Respondent . Nothing further

was requested by the Department.

9 . On November 8, 2002, Mr. Cooper spoke with an agent of

the Department to check on the statu s of Respondent ’s name and

address change application. At the direction of Department

employees, Mr. Cooper opened an i nternet account for

Respondent ’s license. Mr. Cooper was told by agents of the

Department that he could make the desired changes by way of the

i nternet account and that further applications would not be

necessary. Through the Department’s online network, Mr. Cooper

changed Respondent’s mailing address and inserted his name on

the first line of the mailing address field , which consisted o f

three lines . The word "owner" was inserted before Mr. Cooper's

name. Mr. Cooper also cha n ged the physical address to his home

address. No changes were made to the mailing address.

10. The Department’s i nternet database provided no

indication or warni ng that the changes made by Mr. Cooper were

prohibited. In fact, the mailing address and field contained

therein was a "free te xt" field. As such, a web user could

enter anything in those spaces.

11. Although it is not clear from the record when it was

initiated, Mr. Cooper was later contacted by the Department’s

investigator, John Waddell. Mr. Waddell notified Mr. Cooper

that the previous applications for name and address change had

not been completed properly. A t the direction of Mr. Waddell,

Respond ent again filed an application with the Department to

change the name and address of the business. That application

was dated August 8, 2003 , and included the same information as

the previous application, except the physical address was

changed from Mr. C ooper's address to Respondent's original

physical address . On that same date, Mr. Cooper spoke with an

employee of the Department seeking guidance on the application ,

and th e change made by Mr. Cooper was consistent with what he

was told to do . Mr. Coope r followed up with the Department on

August 18, 2003, and October 7, 2003, to check on the status of

the name and address change application .

12. On October 10, 2003, the Department accepted the

application and accompanying fee, and an employee of the

De partment changed the name and address of Respondent to M etro

Mortuary Transport, Inc. U ltimately, the Department issued a

r emoval s ervice license to Metro Mortuary Transport, Inc. ,

effectively changing the name of the organization or entity

operati ng unde r r emoval s ervice License No. FR38. As co - owners

of Respondent , Messrs. DeGroat and Cooper relied on that license

issuance and continued operating the r emoval s ervice as Metro

Mortuary Transport, Inc.

1 3 . In 2002, c ontemporaneous with the numerous effort s

made by Respondent to change its name and address, the

Department began utilizing a new licensing computer database

called License - Ease. At the same time, the Department

completely reorganized the p rofessional licensing division . T he

conversion to this new computer database , which had problems at

the outset, coupled with new employees carrying out the

licensing responsibilities , created some confusion among

Department personnel.

1 4 . In or about May 2004, Department i nvestigator, Andrea

Beacraft, con tacted Mr. Cooper to again notify him that

Respondent had not followed the proper procedure for changing

the name and address of the licensed r emoval s ervice.

15 . Ms. Beacraft's instructions were based on the

Department's requirement that a new applicat ion, not a change of

name and address form , be submitted, if ownership of an entity

changed and/or the physical location of the business changed.

At the direction of Ms. Beacraft, Respondent again filed an

application with the Department . This applicatio n form was

different from the name and address change application and

included a question asking whether the new and/or additional

owner had a felony conviction . On the application referred to

in paragraph 15, Mr. Cooper answered affirmatively the questio n

regarding whether he had been convicted of a felony. When

requested by the Department, Mr. Cooper provided additional

information regarding his criminal convictions , none of which

were related to "removal activities . "

1 6 . The application was withdrawn on December 13, 2004 ,

when Respondent’s counsel notified Mr. Cooper that the

Department would deny the application if Mr. Cooper were listed

as a shareholder in the licensed corporation. This was the

first time Mr. Cooper or Mr. DeGroat learned that Mr. C ooper’s

felony convictions would prohibit him from holding an ownership

interest in the business .

17 . Throughout the two years that Respondent has sought to

change its name and to add Mr. Cooper as an owner of the license d

entity, Mr. Cooper has been hone st, forthright, and cooperative

with the Department . Furthermore, he has sought the assistance

of the Department and always followed the instruction s of

Department staff in an attempt to effectuat e these changes.

18 . The licensed entity in this case has never had any

consumer complaints filed against it. In fact, one of the

Department's witnesses , the owner of a funeral home who has used

the services of Respondent, testified credibly that he has been

satisfied with the services provided and will continue to use

the company .

CONCLUSIONS OF LAW

1 9 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla . Stat.

20 . The Departm e nt is charged with regulating the

activities enumer ated in Chapter 470, Florida Statutes,

including "removal service" as defined by Subsection

470.002(26), Florida Statutes.

21 . The Department is authorized to impose disciplinary

actions against persons found guilty of any offense enumerated

in Section 47 0.036, Florida Statutes. That section provides , in

per tinent part , the following:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

* * *

(g) Committing fraud, deceit, negligence,

incompetenc y, or misconduct, in the practice

of any of the activities regulated under

this chapter.

(h) A violation or repeated violation of

this chapter or of chapter 455 and any rules

promulgated pursuant thereto.

22 . Florida Administrative Code Rule 6168 - 24. 010(2)

provides the following:

(2) The Board shall be notified in writing

within ten (10) days when any of the

information required in the application

changes.

2 3 . Section 470.036, Florida Statutes , establishes

penalties for engaging in the a ctivities en umerated there in and

includes revocation or suspension of a license and imposition of

an administrative fine of up to $5,000 .00 for each offense.

§ 470.036(2), Fla. Stat.

2 4 . Here, the Department alleges that Respondent committed

acts prohibited by Subs ection 470.036(1)(g) and (h), Florida

Statutes . As the basis for the allegation related to Subsection

470.036(1)(h), Florida Statutes, the Department alleges that

Respondent violated Florida Administrative Code Rule

61G8 - 24.010(2). For these alleged viol ations, the Department

seeks to revoke the license of Respondent.

2 5 . Given the penal nature of sanctions that m a y be

imposed in this case, the burden is on the Department to

establish the allegations set forth in the Corrected

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co ., 670

So. 2d 932 (Fla. 1996) .

2 6 . Count One of the Corrected Administrative Complaint

alleges Respondent committed fraud and deceit , in violat ion of

Subsection 470.03 6(1)(g), Florida Statutes , by abusing the

Department's internet system by "attempting to effectuate a

change of ownership without following the proper legal procedure

for doing so. " The Department presented no evidence to prove

this allegation .

2 7 . Contr ary to the Department's allegations, the clear

evidence established that the entry made on the Department's

internet system by Mr. Cooper was consistent with the form he

provided to the Department and was done at the direction of a

Department employee. Mo reover, the clear and convincing

evidence established that Respondent was honest and forthright

in its dealings with the Department and made numerous good faith

attempts to update the name and address of the company.

Mr. Cooper's conduct on behalf of Resp ondent does not constitute

fraud or deceit.

28. Even assuming , arguendo , that Respondent committed

fraud or deceit in its efforts to change the name and address

information, the Department must also prove by clear and

convincing evidence that the alleged ly fraudulent or deceitful

conduct was " in the practice of any activit y regulated under

this chapter " in order to establish a violation of Subsection

470.036(1)(g) , Florida Statutes . The activity, "removal

service," pertinent to this case is regulated by Subsection

470.03 0 1(1), Florida Statutes , and is defined as "any service

that operates independently of a funeral establishment, that

handles the initial removal of dead human bodies, and that

offers its service to funeral establishments and direct disposa l

establishments for a fee." See § 470.002(26), Fla . Stat .

Clearly, the entries made on the Department's internet system

are not related to this regulated activity.

29 . Count Two of the Corrected Administrative Complaint

alleges that Respondent violated Subsection 470.036(1)(h),

Florida Statutes, through a violation of Florida Administrative

Code Rule 61G8 - 24.010(2) , by changing its ownership to Metro

Mortuary Transport, Inc. , without notifying the Department

within t en days of doing so. The Department failed to prove

this allegation in Count Two .

3 0 . T he uncontroverted evidence established that

Respondent filed an application with the Department within two

days of incorporating its new entity. The Department’s own

records show that on September 25, 20 02, Respondent submitted an

application to change the name of the license holder to Metro

Mortuary Transport, Inc., a corporation filed with the Florida

Department of State on September 23, 2002. Finally, the

undisputed evidence established that these cha nges were accepted

by the Department by way of its i nternet web site and confirmed

by issuance of r emoval s ervice L icense No. FR38 in the name of

Metro Mortuary Transport, Inc.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Corrected Administrative Complaint be

D ISMISSED .

D ONE AND ENT ERED this 5th day of August , 2005 , in

Tallahassee, Leon County, F l orida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Divisi on of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

thi s 5th day of August , 2005 .

ENDNOTE

1/ Unless otherwise indicated, all citations are to Florida

Statutes (2004).

COPIES FURNISHED :

Charles F. Tunnicliff , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahasse e, Florida 32399 - 2202

Stanley K. Cooper

Metro Professional Services

Post Office Box 7342

St. Petersburg, Florida 33734

Garvin B. Bowden, Esquire

Gardner, Wadsworth, Duggar, Bist

& Wiener, P.A.

1300 Thomaswood Drive

Tallahassee, Florida 32308

Juanit a Chastain, Executive Director

Board of Funeral Directors

and Embalmers

D epartment of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, General Counsel

D epartment of Business and

Profes sional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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 Re commended Order should be filed with the agency that

will issue the final order in this case.