22-000066PL Department Of Financial Services, Division Of Funeral, Cemetery And Consumer Services vs. Adrienne Dishonne Leger Status: Closed Recommended Order on Monday, April 25, 2022.

Summary: The evidence was insufficient to prove that Respondent, a licensed funeral director, failed to maintain a body under refrigeration or otherwise to handle the remains with dignity and respect.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF F INANCIAL SERVICES ,

DIVISION OF FUNERAL , CEMETARY , AND

CONSUMER SERVICES ,

Petitioner , Case No. 2 2 - 0066 PL

vs.

ADRIENNE DISHONNE LE GER ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by Zoom teleconference on March 9, 2022 , at multiple sites in Leon

and Palm Beach C ounties , Florida.

A PPEARANCES

For Petitioner: James A. Bossart , Esquire

D epartment of Financial Services

Larson Building, Room 612

200 East Gaines Street

Tallahassee , Florida 3 2399

For Respondent: Alterraon Phillips , Esquire

APLaw, LLC

11358 Okeechobee Boulevard , Suite 2

Royal Palm Beach, Florida 33411

S TATEMENT OF T HE I SSUE S

The issue s in this case are w hether Respondent, a licen sed funeral

director, failed to maintain a body under refrigeration or otherwise to treat

the remains with dignity and respect, as Petitioner alleges; and, if so,

whether and what penalty or penalties should be imposed against

Respondent Ô s license.

P RELIMINARY S TATEMENT

On November 2 9 , 202 1 , the Department of Financial Services ( Ñ DFS Ò )

issued a two - count Administrative Complaint against Adrienne Dishonne

Leger (ÑLegerÒ). The gravamen of Count I , withdrawn at hearing, was the

allegation that Leger had fail ed to obtain a burial - transit permit . In Count II,

DFS alleged that Leger had improperly held a human body for more than

24 hours without either refrigerating the body or embalming it , as required

by statute , and that she had failed to handle the body with dignity and

respect. Because DFS presented evidence at hearing showing that the body in

question had been both embalmed and maintained under refrigeration,

however, Count II effectively boiled down to the charge of disrespectful

handling , which is wh at this case is primarily about .

Leger timely requested a formal administrative hearing by filing an

Election of Proceeding, which DFS referred to DOAH on January 7, 2022.

Upon assignment, the undersigned set the case for a final hearing on

March 9, 2022.

At the final hearing , which took place as scheduled with both parties

present, DFS called six witnesses : Ebony Morgan, Terrence Fuller, Jessica

Cordero, Patricia Jo Ralph, Geronimo Mena, and Joseph Finocchiaro. In

addition, PetitionerÔs Exhibits 1, 2, 5, 7, 9, and 10 were admitted into

evidence. Leger elected not to present a defensive case - in - chief.

Each party timely filed a Proposed Recommended Order ( Ñ PRO Ò ) . The

parties Ô PROs have been considered in the preparation of this Recommended

Order.

U nless otherwise indicated, citations to the official statute law of the state

of Florida refer to Florida Statutes 20 2 1, except that all references to statutes

or rules defining disciplinable offenses or prescribing penalties for

committing such offenses a re to the versions that were in effect at the time of

the alleged wrongful acts.

F INDINGS OF F ACT

1 . Leger is a Florida licensed funeral director and embalmer, holding

license number F 045309. At all times relevant to this matter, Leger was the

funeral director in charge ( Ñ FDIC Ò ) of RWS Funeral Services, LLC, d/b/a

Shawn Johnson Funeral and Cremation Services ( Ñ SJFCS Ò ).

2 . As a licensee, Leger falls within the regulatory jurisdiction of DFS ,

which, among other statutory responsibilities, prosecutes alle ged violations of

chapter 497, Florida Statutes , for which the Board of Funeral, Cemetery, and

Consumer Services (the Ñ Board Ò ) has found probable cause.

3 . The main disciplinary charge against Leger in this case , i.e., that she

failed to treat a body wit h dignity and respect, is founded up on a single

allegation of material fact , which is stated in the Administrative Complaint

as follows:

On January 27, 2020, [driver] Sam Pierce was called

in by [ Leger ] to remove [R Ô Asia Washington Ô s ] body

from [SJFCS] to Everglades Crematory. Sam Pierce

observed that [the] body was lying on the floor, not

refrigerated, and was in an advanced state of

decomposition.

Admin. Compl . at 4 (emphasis added).

4 . Mr. Pierce , the driver identified in the Administrative Complaint as an

eyewitness to this alleged ly undignified and disrespectful handling of the

body, did not testify at hearing. There is no evidence in the record

establishing that Mr. Pierce , or anyone else, saw the body of R Ô Asia

Washington (the Ñ Decedent Ò ) lying on the floor at the SJFCS funeral home on

January 27, 2020 , or any other date . The evidence likewise fails to show that

the Decedent Ô s body was Ñ in an advanced state of decomposition Ò as alleged .

Although there is persuasive evidence that, by February 7, 2020, the

Decedent Ô s body showed signs of surface decomposition indicative of

inadequat e or nonexistent post - embalming care , Le ger was not charged with

negligently failing to provide reasonable Ñ af ter care , Ò and thus she cannot be

found guilty in this proceeding on that ground. In short, DFS failed to prove

the key factual allegation against Leger (i.e., that the Decedent Ô s body had

been lying on the floor, decomposing) upon which the charge of faili ng to treat

the Decedent Ô s body with dignity and respect was based.

5 . Because of this failure of proof, few additional findings of fact are

necessary . Nevertheless, a brief historical narrative will be provided , to make

a complete record, and to elaborate up on the ultimate determination that

Leger is not guilty of the offense s with which she was charged herein.

6 . The Decedent , a minor, passed away under tragic circumstances on

January 22, 2020, at a hospital in Savannah, Georgia , while away f rom home

on a family vacation . The Decedent Ô s mother, Ebony Morgan, immediately

contacted SJFCS to make funeral arrangements, which includ ed transport ing

the body back to Palm Beach County, Florida, where the family was from . 1

After taking care of this sad business, Ms. Morgan drove back to her home in

West Palm Beach the same day.

1 A Georgia funeral home called Celebration of Life appears to have collected the Decede nt Ô s

body from the hospital and possibly embalmed the body before it was removed to Florida. As

will be seen, the body was embalmed, but the evidence fails to show who performed the

initial procedure, where it was done, or when.

7 . On Friday, January 24, 2020, Ms. Morgan viewed her daughter Ô s body

at the SJFCS funeral home. The Decedent looked Ñ the same Ò to Ms. Morgan

as she had two days earlier in the G eorgia hospital.

8 . SJFCS does not have refrigeration facilities on site and must contract

with other companies for the storage under refrigeration of human remains.

It is undisputed that, on Monday, January 27, 2020, SJFCS placed the

Decedent Ô s body into refrigerated storage at Everglades Cremations , a

refrigeration facility located in Broward County . There, the body remained

until February 6, 2020, a fact which is also undisputed.

9 . The evidence fails to establish where the Decedent Ô s body was kept over

the weekend preceding its removal to Everglades Cremations. It is possible

that the body was taken to ABCO Crematory in Fort Lauderdale, as

Respondent Ô s counsel told DFS in a letter to its investigator dated March 12,

2020 . A finding to th is effect , h owever, cannot be made on the instant record . 2

This minor factual dispute is immaterial. 3 To repeat for emphasis, there is no

evidence that the body was badly decomposed or lying on a floor at the

SJFCS home on January 27, 2022 , as alleged in the Administr ative

Complaint. There is, further, no evidence concerning the condition of the body

upon its arrival at Everglades Cremations, where it would stay, in

refrigerated storage, for ten days.

1 0 . On February 1, 2020, Leger signed a DFS form entitled Ñ Funeral

Establishment Ð Monthly Report of Cases Embalmed and Bodies Handled Ò

( Ñ Bodies Handled Report Ò ), which is a record that section 497.382 requires be

2 Since the attorney Ô s letter does not mention Everglades Cremations, it is possible that he

was simply mistaken on this point; the evidence shows that SJFCS moved other bodies to

ABCO Crematory for storage under refrigeration during this time frame and that the

Decedent Ô s body could have been among them. It should be added that there is no allegation

or evidence, nor does the undersigned suspect, that SJFCS Ô s counsel tried to mislead DFS

regarding the location of the body.

3 To be clear, there is no evidence that the body was l ost or misplaced during the weekend in

question, nor was Leger charged with being unable to account for the whereabouts of the

body.

filled out and executed each month by a funeral establishment Ô s FDIC. This

one, for the month of January 2020 , shows that SJFCS handled five bodies

during the period, including that of the Decedent. Leger is identified as the

embalmer for four of the cases listed in the January 2020 Bodies Handled

Report. She is not, however, named as the embalmer of the Decedent . In lieu

of providing the embalmer Ô s name where the form calls for this information,

the report states Ñ ship - in. Ò

11 . The statu t e requires that the Bodies Handled Report be signed by Ñ the

embalmer who performs the embalming, Ò if the body has been embalmed by

someone other than the FDIC. § 497.382(1), Fla. Stat. As mentioned above ,

see foot note 1 , the evidence fails to establish, according to the clear and

convincing standard, who embalm ed the DecedentÔs body . T he January

Bodie s Handled Report, however, which Leger signed before the alleged

mistreatment of Decedent Ô s body became the subject of dispute, is persuasive

proof that Leger likely was not the embalmer in this case. The report ,

moreover, supports the inference that the e mbalmer was not a Florida

licensee (who would have been legally obligated to sign the report) , which is

consistent with the possibility that the Decedent was embalmed in Georgia,

although the record evidence is insufficient to support a finding to th is eff ect.

12 . On February 6, 2020, after the Decedent Ô s body had been returned to

the SJFCS funeral home, Ms. Morgan saw her daughter Ô s remains again for

the first time since January 24, 2020, almost two weeks earlier . Ms. Morgan

was understandably mortified t o discover that the body, which had looked

fine upon arrival in Florida, was now showing visible signs of

decomposition Ð a distressing fact which is undisputed. In addition to its

disturbing appearance, the poor condition of the body made an open casket

funeral, which Ms. Morgan wanted, unlikely , if not impossible.

1 3 . Dissatisfied with SJFC S , Ms. Morgan retained another funeral home,

which retrieved the body and handled the funeral arrangements going

forward. On February 7, 2020, a DFS investigator took photographs of the

Decedent Ô s body at the successor funeral home. These pictures were received

in evidence and , taken together , are clear and convincing proof that the body

was, indeed, showing some effects of decomposition as of February 7, 2020. 4

14 . DF S called as an expert witness a full - time faculty member of Miami -

Dade College named Joseph Finocchiaro . Mr. Finocchiaro is the program

coordinator of funeral service e ducation at the college , and he rendered

opinions on the art and science of embalming, w hich the undersigned found

to be credible and informative. The following findings on the subject of

embalming are based upon Mr. Finocchi ar oÔs unrefuted testimony .

1 5 . Although often considered a single procedure , embalming is a process

which involves a series of steps and acts, from the initial preservation of the

body through the ongoing care necessary to sl ow down the natural decay

until final disposition, e.g., cremation or burial.

1 6 . Based upon his review of the photographs taken on Feb ruary 7, 2020,

Mr. Finocchiaro observed signs of decomposition indicating that the

DecedentÔs body had not received proper post - embalming aftercare .

Specifically, Mr. Finocchiaro saw desquamation (or Ñ skin slip Ò ) and the

presence of mold .

1 7 . Skin slip oc curs when the epidermis (top skin layer) separates from

the dermis, causing the skin to peel off. This is one of the first signs of

decomposition , and it is extremely common . C ontrolling desquamation is one

of the most routin e issue s handled in the funeral home prep aration room .

4 To a layperson such as the undersigned, who is unaccustomed to seeing human remains in

a state of decay, the images are s omewhat disturbing and unpleasant to view. It is easy to

imagine that a family member, especially a parent, would be emotionally distressed, if not

horrified, to see his or her loved one in such a state. For some perspective, however, the

evidence shows th at, to a professional knowledgeable about the process of decomposition and

the means of arresting it, and whose work brings him or her into regular contact with human

remains, the condition of the Decedent Ô s body, while poor, probably would not have been

s hocking. A skillful practitioner, moreover, could mitigate the damage cause d by the

corruption to improve the body Ô s appearance. Indeed, that is what happened in this case, as

the successor funeral home restored the Decedent Ô s body well enough to permit a limited

viewing by immediate family, albeit not the open casket funeral originally planned.

1 8 . The common treatment for skin slip is a surface compress , which

involves the direct application of formaldehyde to the surface of the body,

to preserve the remaining skin. This is a routine aftercare practice.

Mr. Finocchiaro saw no evidence in the pictures that compresses had been

used to arrest the skin slippage visible on the Decedent Ô s body.

19 . Mold is a common occurrence when a body is stored in refrigeration.

Mold must be removed immediately when found, usu ally with an abrasive

scratch pad or sponge , followed by the application of a mold retardant. Based

on his review of the photos, Mr. Finocchiaro saw no evidence of attempts to

remediate the mold on the Decedent Ô s body, which appeared to be extensive

and li kely was the result of more than a week Ô s worth of growth.

20 . Mr. Finocchiaro Ô s opinions , which the undersigned accepts as true, are

that , as of February 7, 2020 : (i) the Decedent Ô s remains likely had been

embalmed; (ii) the condition of the body was very poor; a nd (iii) the remains

had not received proper post - embalming aftercare . I t is so found.

21 . Mr. Finocchiaro concluded, based upon the lack of reasonable

aftercare, that the body had not , in his opinion, been treated with dignity and

respect. With due respect to Mr. Finocchiaro, whose thoughtful testimony the

undersigned found genuinely helpful, his opinion as to this ultimate fact is

rejected , not only because it invades the province of the fact - finder as to a

matter that requires no expertise , but also because the inference that the

body was treated in an und igni fied and dis respect ful manner does not

inevitably follow from the basic fact of negligent embalming with such force

as to constitute clear and convincing evidence of mistreatment.

22 . To explain, Mr. Finocchiaro Ô s testimony establishes, clearly, that the

Decedent Ô s body would not have deteriorated to the poor condition it was in

as of February 7, 2020, if reasonable post - embalming techniques had been

applied according to the standard of care. In short, the re is clear and

convincing evidence of negligent embalming (or professional malpractice) in

the instant record. 5 DFS did not charge Leger with negligent embalming

based upon the failure to provide adequate aftercare , however, and thus a

finding of such malpractice cannot provide grounds for discipline in this case ,

even assuming Leger could be held directly or vicariously accountable for

same Ð an issue which need not be decided .

2 3 . Although the phrase Ñ dignity and respect Ò is nowhere de fined in the

statute or applicable rules, treating a body with dignity and respect is plainly

not synonymous with embalming a body according to the standard of care.

Think of a doctor who commits malpractice while treating his patient s with

the utmost dignity and respect, or, conversely, of the physician whose c are

and treatment is always impeccable despite his insulting or disrespectful

bedside manner. The same is true in this context. While negligent embalming

is consistent with failing to treat a bod y with dignity and respect, it is not

consistent only with treating a body disrespectfully, a ny more than treating a

body respectfully guarantees that the embalming will be performed in

accord ance with the standard of care.

2 4 . In sum, the proof of neglig ent embalming in this case, without more

than has been shown , is not clear and convincing evidence that the

5 Mr. FinocchiaroÔs testimony was not rebutted, and the undersigned has credited this

evidence, as noted. There are, however, a couple of points that give the unde rsigned pause.

Florida Administrative Code Rule 69K - 33.001(2)(h) provides that Ñ[h]uman remains stored in

refrigeration shall be inspected by operational staff of the establishment or facility at each

handling and no less than monthly.Ò The DecedentÔs body was at Everglades Cremations in

refrigerated storage from January 27, 2020, until February 6, 2020 Ð ten days. There is no

evidence that the body was in poor condition on January 27, 2020, and from that date

through February 6 , 2020, the duty to inspect the body fell, clearly if not exclusively, to the

staff of Everglades Cremations. The rule in question provides further that any mold Ñnoted

on the remainsÒ shall be promptly eliminated. There is no evidence that the operational staff

of Everglades Cremations noted any mold on the DecedentÔs body or that, if they did, notice

thereof was given to Leger. The question arises: Did Leger have a personal duty to inspect

the body while it was stored in refrigeration at Everglades Cremations? Rule 69K -

33.001(2)(h) do es not impose such a duty, and Mr. Finocchiaro did not testify that the

standard of care required Leger to travel to the refrigeration facility to inspect the bodies

that SJFCS had stored there. If Leger had no duty to inspect the DecedentÔs body while it

was stored in refrigeration, it is difficult to see how she could have been negligent in failing

to arrest decomposition occurring during that time. Finally, it bears mentioning, for what itÔs

worth, that rule 69K - 33.001(2)(h) declares that the treatment o f mold and mildew found on a

body stored in refrigeration Ñshall not constitute embalming.Ò

Decedent Ô s body was not accorded dignity and respect at all time s . Although

the inference of disrespectful treatment might be permissible based upon the

basic fact of negligent embalming, the undersigned declines to make such an

inference here , which is his exclusive prerogative as fact - finder.

D ETERMINATIONS OF U LTIMATE F ACT

2 5 . In the Administrative Complaint, Count II, DFS charged Lege r with

violations of sections 497.152(1)(a), (b) , and 497.153(4)(h), based upon

allegations that she : (i) improperly held the DecedentÔs body in place for more

than 24 hours, in contravention of s ection 497.386 (2), by failing either to

place the body under refrigeration or to embalm the body; and (ii) failed

to handle the body with dignity and respect, in contravention of

section 497.38 6 (4).

2 6 . The DecedentÔs body was embalmed, according to DFSÔs expert

witness, whose testimony in this regard the undersig ned has credited. For

that reason, section 497.386(2) did not require the body to be maintained

under refrigeration. Nevertheless, the body was stored in a refrigeration

facility as well. It is determined as a matter of ultimate fact that Leger did

not vio late section 497.386(2) and , therefore , that she is not guilty of an

offense under section 497.152(1).

2 7 . It is determined as a matter of ultimate fact that there is insufficient,

clear and convincing evidence proving that Leger handled the body in an

un dignified or disrespectful manner. Consequently, it is determined as a

matter of ultimate fact that Leger is not guilty of an offense under

section 497.152(1)(a), (b) , or section 497.153(4)(h) .

2 8 . It is determined as a matter of ultimate fact that the evidence adduced

fails to prove DFSÔs allegations against Leger by the requisite standard of

proof, i.e., clear and convincing evidence .

C ONCLUSIONS O F L AW

29 . DOAH has personal and subject matter jurisdiction in this proceeding

pursuant to sections 120.569, 120.57(1), and 497.153(4)(d) , Florida Statutes .

3 0 . Upon a finding of probable cause by the Board to believe that grounds

exi st for imposing discipline against a funeral directorÔs license , DFS is

responsible for filing the formal administrative complaint and prosecuting

the case against the licensee . § 497.153( 3 )( e ) , Fla. Stat.

3 1 . Section 497.152(1) authorizes the Board to take disciplinary action

against a licensee for :

(a) Violating any provision of this chapter or any

lawful order of the board or department or of the

statutory predecessors to the board or department.

(b ) Committing fraud, deceit, negligence,

incompetency, or misconduct in the practice of any

of the activities regulated under this chapter .

3 2 . Section 497.152( 4 ) (h) authorizes the Board to take disciplinary action

against a licensee for Ñ[f]ailing to perform any statutory or legal obligation

placed upon a licensee. Ò

3 3 . In Count II of the Administrative Complaint, DFS cha rged that , Ñ by

failing to maintain [the DecedentÔs] body under refrigeration at a

temperature of 40 degrees Fahenheit [sic] or to embalm the body in

contravention of section 497.386(2), Florida Statutes, and [by] otherwise

fail[ing] to treat the body with dignity and respect , [Leger] violated section

497.152(1)(a), ( 1 )(b), and (4)(h), Florida Statutes, and is subject to discipline

thereunder. Ò Admin. Compl. at 5 (emphasis added).

3 4 . Section 4 9 7.386 provides , in relevant part , as follows:

(2) A dead human body may not be held in any

place or in transit over 24 hours after death or

pending final disposition unless the body is

maintained under refrigeration at a temperature of

40 degrees Fahrenheit or below or is embalmed or

otherwise preserved i n a manner approved by the

licensing authority in accordance with the

provisions of this chapter.

* * *

(4) The licensing authority shall establish by rule

the minimal standards of acceptable and prevailing

practices for the handling and storing of dead

human bodies, provided that all human remains

transported or stored must be completely covered and

at all times treated with dignity and respect .

(Emphasis added).

3 5 . Florida Administrative Code Rule 69K - 33.001 ( 2) provides , in pertinent

part , as follows:

(h) Human remains stored in refrigeration shall be

inspected by operational staff of the establishment or

facility at each handling and no less than monthly.

Any vermin infestation, mold, or mildew noted on

the remains shall be promptly and effectively

treated for containment or elimination of same;

elimination, if necessary, shall be performed by a

funeral director & embalmer, embalmer, or an

intern or apprentice of same. Such treatment shall

not constitute embalming and shall not require th e

approval of a legally authorized person.

(i) The requirement that human remains be handled,

stored, and treated by all chapter 497, F.S., licensees

with dignity and respect in accordance with

chapter 497, F.S., and rules thereunder is not

contingent on payment to the licensee of amounts

due for professional services by the licensee.

(Emphasis added).

3 6 . If ambiguous, t he foregoing statutory and rule provisions , being

disciplinary in nature , must be construed in favor of the licensee who would

be pu nished in the event of a finding of violation . Munch v. Dep Ô t of Pro .

Reg ul ., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see

also, e.g., Griffis v. Fish & Wildlife Conserv. Comm Ô n , 57 So. 3d 929 (Fla. 1st

DCA 2011)( statutes imposing a penalty must never be extended by

construction ) ; Camejo v. Dep Ô t of Bus. & Pro . Reg ul . , 812 So. 2d 583, 583 - 84

(Fla. 3d DCA 2002); McClung v. Crim. Just. Stds. & Training Comm Ô n ,

458 So. 2d 887, 888 (Fla. 5th DCA 1984)( Ñ [W]here a statute provides for

revocation of a license the grounds must be strictly construed because the

statute is penal in nature. No conduct is to be regarded as included within a

penal statute that is not reasonably proscribed by it; if there are any

ambiguities included, they must be construed in favor of the licensee. Ò ) ;

Lester v. Dep Ô t of Pro. & Occ. Reguls. , 348 So. 2d 923, 925 (Fla. 1st

DCA 1977).

3 7 . The controlling version of such statutes and rules is the one in effect at

the time the alleged disciplinable offense was commit ted. Childers v. Dep Ô t of

Env Ô t Prot. , 696 So. 2d 962, 964 (Fla. 1st DCA 1997). Whether Leger

committed an offense, as charged, is a question of ultimate fact to be decided

in the context of each alleged violation. McKinney v. Castor , 667 So. 2d 387,

389 ( Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st

DCA 1995).

3 8 . A proceeding, such as this one, to suspend, revoke, or impose other

discipline upon a license is considered penal in nature. State ex rel. Vining v.

Fla . Real Estate Co mm Ô n , 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to

impose discipline, DFS must prove the charges against Leger by clear and

convincing evidence. Dep Ô t of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996)(citing Ferris v.

Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); Nair v. Dep Ô t of Bus. & Pro .

Regul . , Bd. of Med . , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

39 . Further, the facts proven must be those alleged in the administrative

complaint. Due pro cess prohibits an agency from taking disciplinary action

against a licensee based upon factual matters not specifically alleged in the

charging instrument. See § 120.60(5), Fla. Stat. ( Ñ No revocation, suspension,

annulment, or withdrawal of any license is lawful unless, prior to the entry of

a final order, the agency has served, by personal service or certified mail, an

administrative complaint which affords reasonable notice to the licen see of

facts or conduct which warrant the intended action . Ò ); see also Trevisani v.

Dep Ô t of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)( Ñ A physician may

not be disciplined for an offense not charged in the complaint. Ò ); Marcelin v.

Dep Ô t of Bus. & P ro . Reg ul . , 753 So. 2d 745, 746 - 47 (Fla. 3d DCA 2000) .

4 0 . Regarding the standard of proof, in Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983), the court developed a Ñ workable definition of

clear and convincing evidence Ò and found that, of nec essity, such a definition

would need to contain Ñ both qualitative and quantitative standards. Ò The

court held that:

[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be di stinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking confusion

as to the facts in issue. The evidence must be of such

weight that it produces in the mind of the trier of

fact a firm belief or conviction, without hesitancy, as

to the truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz court Ô s

description of clear and convincing evidence. See In re Davey , 645 So. 2d 398,

404 (Fla. 1994). The First District C ourt of Appeal also has followed the

Slomowitz test, adding the interpretive comment that Ñ [a]lthough this

standard of proof may be met where the evidence is in conflict, È it seems to

preclude evidence that is ambiguous. Ò Westinghouse Elec. Corp., Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied ,

599 So. 2d 1279 (Fla. 1992)(citation omitted).

4 1 . Neither the statute, nor the rule, which requires that human remains

be treated with dignity and respect, establishes the standard of practice or

describes the kind of mistreatment that constitutes a failure to af ford dignity

and respect. Ba sed upon the plain meaning of these terms, the undersigned

suspects that allowing a body to lie on the floor , as alleged in the

Administrative Complaint, probably falls short of the standard of practice .

Because this allegation was not proved, however, it is not necessary to decide

this issue.

4 2 . In its PRO , DFS ar gues that because Leger Ñfail[ed ] to follow generally

accepted practices established in the embalming and mortuary industry f or

the handling of dead human remains,Ò the Ñonly inference that can be drawnÒ

is that she failed to treat the DecedentÔs body with dignity and respect. This,

arguably if not effectively, is a new theory , which was not charged in the

Administrative Complaint.

4 3 . To be sure, DFS charged Leger with failing to treat the body with

dignity and respect. Further, DFS is permitted to prove this charge through

circumstantial eviden ce, provided such evidence meets the clear and

convincing standard. Thus, there is nothing problematic, per se, in DFSÔs

reliance upon an inference of misconduct to prove its case.

4 4 . The problem is that the basic fact from which D FS would have the

undersigned infer LegerÔs alleged failure to afford dignity and respect is, in so

many words, the negligent embalming which Mr. Finocc hiaroÔs testimon y

persua sively showed to have occurred. Negligent embalming, however, is a

separate disciplinable offense . Nowher e in the Administrative Co mplaint is it

alleged that Leger committed negligence by failing to apply post - embalming

techniques as required under the prevailing standard of care to arrest

decomposition . This is no small omission. Had Leger been placed on notice

that DFS intended to p rove negligent embalming as a basis for inferring

disrespectful handling , she might have retained an expert of her own to

testify about the standard of care. Finding Leger guilty and imposing

discipline based upon a finding of negligent embalming would be a violation

of due process.

4 5 . DFS attempts to circumvent this pleading deficiency by conflating

negligence and disrespectful treatment. It argues in its P RO that Ñ[b]y failing

to keep the body in a suitable condition for burial [by failing to follow

gene rally accepted practices established by the embalming and mortuary

industry for the handling of dead human bodies], [Leger] failed to treat the

human remains with dignity and respect.Ò In other words, by committing

negligent embalming, Leger treated the De cedentÔs body in an undignified

and disrespectful manner.

4 6 . Having made this argument, DFS then turns it around , restating the

proposition in reverse: Ñ[LegerÔs] violation of section 497.386(4), Florida

Statutes, [i.e. , her disrespectful treatment of the DecedentÔs body ,]

demonstrated negligence or incompetency in the practice of activities

regulated under chap ter 497, Florida Statutes, [ meaning , in this case,

embalming ,] and constituted a violation of section 497. 152(1) (b), Florida

Statutes.Ò In other words, by treating the Dece dentÔs body disrespectfully,

Leger committed negligence in the practice of embalming.

4 7 . Based on the plain language of section 497.386(4), it is concluded that,

whatever treating a body with dig nity and respect entails, such treatment

differs from, and is not coterminous with, embalming a body according to the

standard of care. Proof of one does not, without more, establish the other, and

vice versa. Consequently, a charge of disrespectful handli ng , as alleged in

this case, cannot be understood as a charge of negligence in the practice of

embalming, which is a discrete offen se having different factual elements.

Because Leger was not charged with negligent embalming, she cannot be

found guilty of t hat offense.

4 8 . Nor, it is concluded, can negligent embalming be used as a b asis for

inferring Ð that is, as circumstantial evidence of Ð disrespectful treatment of a

body in violation of section 497.386(4) , absent allegations of fact regarding

the negligence . If this were permissible, DFS would be able to bo otstrap the

charged offense (disrespectful handling ) to an uncharged offense (negligent

embalming), of which the licensee had no notice and, accordingly, no fair

opportunity to defend herself against. If D FS wants to prove disrespectful

handling using negligent embalming as cir cumstantial evidence thereof, then

it needs to allege the facts sup porting a determination that the licenseeÔs

embalming techniques fell below the standard of care. Such was not done in

this case.

49 . Alternativel y, even if it were legally permissible to infer that Leger

failed to treat the DecedentÔs body with dignity and respect from the basic

fact that she failed to provide adequate post - embalming care , 6 such an

inference is certain ly not required . As explained above, the inference of

disrespect ful treatment is not the Ñ only Ò one which arises from the basic fact

of negligent embalming , as DFS argues , and it is not so strong an inference

as to constitute clear and convincing proof of the alleged violation. As fact -

finder, the undersigned chose not to make the inference, which is a (negative)

finding of fact rather than a conclusion of law.

5 0 . DFS argues that an adverse inference of guilt should be drawn from

LegerÔs decision not t o testify at the final hearing. Such an inference is

permissible. Omulepu v. DepÔt of Health , 249 So. 3d 1278, 1281 (Fla. 1st

DCA 2018). The inference is not strong in this case, however, because Leger

might reasonably have thought (correctly as it happens ) that DFS had failed

to carry its burden of proof and , thus , that her testimony was not needed to

avoid discipline. Under these circumstances, the undersigned declines to

draw an adverse inference from LegerÔs silence.

5 1 . Finally, in fairness, it should be remembered that although the

evidence in this record (i.e., Mr. Finocch ia roÔs testimony) establishes that

someone failed to exercise reasonable care in providing post - embalming

ser vices, Leger had not been notified that this was going to be an issue .

Li kely (or possibly) for that reason, she did not defend herself against the

6 To be clear, the undersigned has not found that Leger is responsible, directly or vicariously,

for such negligence. The evidence is insufficient to make such a fi nding.

allegation of negligent embalming , with the result that Mr. FinocchiaroÔs

testimony was not rebutted. Had negligent embalming been pleaded as a

grounds for imposing discipline, and had Leger presented expert testimony

on the issue, she might have created a genuine d ispute as to her alleged

negligence , if any, and raised enough doubt to preclude an adverse find ing Ð a

task made easier due to the prosecutionÔs relatively heavy burden of proving

the charges by clear and convincing evidence.

5 2 . The bottom line is that DFS presented insufficient proof of its material

allegations of fact against Leger . This negative determination of ultimate fact

is dispositive .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Board of Funeral, Cemetery, and Consumer Services

enter a final order exonerating Adrienne Dishonne L eger of all charges

brought against her in this proceeding .

D ONE A ND E NTERED this 25th day of April , 202 2 , in Tallahassee, Leon

County, Florida.

S

J OHN G. V AN L ANINGHAM

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of April , 202 2 .

C OPIES F URNISHED :

James A. Bossart, Esquire Diane Wint, Agency Clerk

Department of Financial Services Division of Legal Services

Larson Building , Room 612 Department of Financial Services

2 00 East Gaines Street Larson Building , Room 612.14

Tallahassee, Florida 32399 200 East Gaines Street

Tallahassee, Florid a 32399 - 0390

Mary Schwantes, Director

Division of Funeral, Cemetery, Alterraon Phillips, Esquire

and Consumer Services APLaw, LLC

Department of Financial Services 11358 Okeechobee Boulevard, Suite 2

200 East Gaines Street Royal Palm Beach, Florida 33411

Tallahassee, F lorida 32399 - 0361

Marshawn Michael Griffin, Esquire

Department of Financial Services

Larson Building , Room 612

2 00 East Gaines Street

Tallahassee, Florida 32399

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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 should be filed with the agency that will issue the Final Order in this

case.