Title: Opinion File 78-62 thru 78-66
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003536/00001
 Material Information
Title: Opinion File 78-62 thru 78-66
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 78-62 thru 78-66
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 88
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003536
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


SGIBmAs, TUCKER, MCEWEN, SMITH, COFER AUB 78- 62
A Professional Association
ATTORNEYS AND COUNSELLORS AT LAW
BL. M. N DAVID B. MCEWBN
HUSSEL. M. BLAIN 006 MADISON STREET. P.O. IIOX 136:1 MALOOLM P. MICKLER, 11
"10SEPII B. OOFER TAMPA, FLORIDA 33601 REGOROT E. MIERZWDISKI
IIOMAS X. CONE, JR. (813) 228-7841 E. BRADFORD MILLER
A. FIiTCfHER DYCOES WILIAM R. PLAT
ARTHUR S. OIBBONS MARSHA O. RTDBERG
KLRK M. GIBBONS ARMI Z. SMITH, JR.
MYRON G. GIBBONS M. 0. OIBBONS, 1862.1039 RICHARD M. STERI
SAM M. OniBONS OGUBY GIBBONS, 100.-1070 0' ODO. 0. TAUB
BRUCE S. GOLDSTEIN AMES M MO 10 AARLE TtUKER
JOHN A. GUTTON, JR. JACQUBLIEN B. WRAThME
VICTORIA I.. HUNT ROBEIT V. WLLI.AMS
HmiaIPn.LAzzaA January 12, 1978 / /






Mr. Raymond Knopke
Garden of Memories Funeral Home
and Cemetery
4207 East Lake Avenue
Tampa, Florida 33610

Re: State Board of Funeral Directors

Dear Ray:

In connection with our recent discussion concerning ob-
jections by the Board of Funeral Directors to the letterhead
Sand certain advertisements being used by Garden of Memories
Funeral Home and Cemetery, I am enclosing a highlighted copy
of provisions of the Florida Statutes and a copy of an adver-
tisement run in the Tampa paper by Garden of Memories.

The Florida Statutes provide as follows:

1. No funeral home owned by any person, whether
incorporated or not, may utilize the name or
picture of any unlicensed person in connection
with any advertisement or telephone listing....
such use of the name or picture of an unlicensed
person shall be deemed to constitute the hold-
ing out of such person as a funeral director in
violation of this Chapter.

2. All letterheads, billheads, literature or adver-
tising material published by a funeral home must
include the name of the licensed funeral director
in charge of such funeral home as well as its
address.

3. No funeral home shall be.located in a cemetery.

In view of these provisions it appears that the letterhead
presently being used by Garden of Memories complies with the
provisions of the Statutes as set forth above. The inclusion





GIJBONS. TUCKER. McEWEN. SMITH. COFER & TAUB, P.A. CONTAIN 8 -63

January 12, 1978 SHEET NO.
Page 2



of separate addresses for the funeral home and the cemetery
indicate to the public that they are dealing with two separate
entities thereby overcoming any misleading effect that the
combined names might have.

On the other hand, certain advertisements which have
appeared in the Tampa papers: would appear to be in violation
of the Statutes. In particular, I direct your attention to
the enclosed copy of an advertisement which reads "Congratula-
tions to Mr. & Mrs. Ernest Gonzales.....From Garden of Memories
Cemetery/Funeral Home". You will note that this advertisement
contains neither the address of the funeral home nor the name
of the funeral director. I believe that to comply with the
requirements of the Florida Statutes, all future advertisements
should contain the same basic information which is set forth
on the letterhead.

Finally, the Board of Funeral Directors has contended that
the use of the name "Garden of Memories Funeral Home and
Cemetery" in obituaries violates the Florida Statutes since
only a funeral establishment can make arrangements for funeral
services. This particular objection seems well taken in that
the use of the name of the funeral home and the cemetery in
* this context might be regarded as the'holding out of the cemetery
as a funeral home. I would, therefore, suggest that future
obituaries contain only the name of Garden of Memories Funeral
Home.

Please review the enclosures and let me know whether you
have any objections to changing your advertising as outlined
herein. I will not send a letter to the Board concerning these
matters until I have received your reply. If you have any
questions please contact my office.
Since ly,



VICTORIA L. HUNT

VLH/bjg
Enclosures




1*


CITS AS 1 30
_FE MAH jO
RICOMMiDATION

Reprimand the defendants Payton and Chaborel for negligence
in pursuing the real estate profession.



S A :-'. L O RDER R


FLORIDA CEMETERY ASSOCIATION

STATE BOARD OF FUNERAL DIRECTORS
AND EMBALMERS

DOAH No. 77-602R

Entered May 24, 1977

*

Rules: Board of Funeral Directors and
Caskets: Invalid Rule.


Embalmers:


The Board, in adopting this rule, restricted the sale
of any "primary receptacle of human remains" to li-
censed funeral directors. In doing so, the Board
articulated an erroneous economic impact statement, and
placed an unwarranted limitation on competitive sales
of caskets. Therefore, the rule set forth by the Board
is invalid.


Rules: Procedure: Economic Impact.

The failure of an agency to prepare an adequate eco-
nomic impact statement is a fatal defect in the valid-
ity of a rule set forth by the agency.


Rules: Procedure: Economic Impact Statement.


The Board was well aware of the economic impact of its
ruling because of prior public hearings on the matter.
Therefore, the Board's action of proposing the rule
under the erroneous economic impact statement served to
invalidate the rule.


*



APPEARANCES:

R. G. Maxwell, Esq.
For Petitioner

Thomas M. Beason, Es
For Respondent


* *


FINAL ORDER


*


OERTEL, K.G., Hearing Officer. This proceeding was initi-
ated on a petition challenging the validity of a rule of the
Board of Funeral Directors and Embalmers within the Depart-
ment of Professional and Occupational Regulation. The
petition was filed pursuant to Section 120.56, F.S., which
gives this division jurisdiction to determine the validity
of administrative rules. The rule in question is 21J-6.04,
Florida Administrative Code and states:

"Any unit which constitutes the primary receptacle
of human remains is a casket. A casket is a
funeral supply which is to be sold only by funeral
directors licensed in the state of Florida. Urns
for cremated human remains are not within the
purview of this rule."

The hearing was held on this petition on April 29, 1977, at
Tallahassee, Florida, at which testimony was taken and
exhibits were received. After consideration of all the
above, the following findings are made.

The rule in question was adopted after a public hearing held


31 .i: DIVISION OF ADMIN HEARING REPORi
FL CEMETARY ASSOC. V BOARD OF FUNERAL DIRECTORS ANif EiAtJERE


I


FINAL


ORDER







CITE AS
39 FDOAR 30


by the Respondent Board on.January 24, 1977.; Apparently,
the rule was adopted to deal with a product sold by members
of the petitioning organization. Testimony was taken from
Gene Crow of Satellite Beach, Florida ho has been in the
cemetery business in Cocoa, Florida for 18 months and who is
a member of the Florida Cemetery Association. He primarily
sells, along with burial lots, what is called the "eternal
rest vault bed".- This is a fiber glass coffin which is used
in the burial process. Mr. Crow is not a licensed funeral
director and objects to the challenged rule. He testified
that 70 percent of his cemetery business occurs from the
sale of these fiber glass vaults; that he has ten sales
people working for him who sell this fiber glass coffin. He
believes that if this rule is not declared invalid it will
require him to stop selling the fiber glass coffins and put
him out of that aspect of his business.

In conjunction with the formal adoption of the rule in
question the Board of Funeral Directors and Embalmers pub-
lished notice of their intention to adopt this rule in the
Florida Administrative Weekly and among other things listed
an estimate of the economic impact on all affected persons
which would be caused by the adoption of this rule. In the
SFlorida Administrative Weekly that statement appeared as
follows:

"Economic Impact. This is the least-cost method
of clarifying the meaning of 'funeral supplies.'
There is no effect upon competition or upon an
open market for employment."

In another publication issued by the Respondent Board
(Petitioner's Exhibit No. 6) the Board listed a statement of
the facts justifying the adoption of this rule and its
complete estimate of economic impact. Under its statement
of justification the Board issued the following:

"The meaning of the term 'funeral supplies' which
appears in Section 470.01(4), F.S., has needed
clarification. This rule provides that caskets


i'~F~CY---------"~


--


33 FL DIVISION OF ADHIN HEARING REPORTS .
FL CEHETARY ASSOC. V BOARD OF FUNERAL DIRECTORS IAD EMBALME1
are included in 'funeral supplies' and that any
unit which serves as a primary receptacle of human
remains is a casket. All such receptacles are
Sto be sold only by licensed funeral directors."

Under its estimate of economic impact the Board stated:

"(1) The action proposed is a clarification of
the terms 'funeral supplies' and 'caskets'. This
action is authorized by Sections 470.01(4) and
470.04(2) and (4), F.S.

(2) Least-cost method of announcing this clari-
fication to the public is the adoption of a rule.

(3) This action will clear up a misunderstanding
as to the meaning of the term 'funeral director.'

(4) This action has no effect upon any allocation
of public or private resources.

(5) This action has no effect upon competition
since it merely,clarifies the phrase 'funeral
supplies.'

(6) No effect on an open market for employment.

(7) There are no costs associated with this action
which must be born by persons directly affected."

After examining the transcript of the hearing conducted by
the Board of Funeral Directors and Embalmers it appears vei
clear that the rule was specifically adopted to deal with
the fiber glass coffins marketed and sold by individuals
such as the Petitioner's witness, Gene Crow. Although in
its statement of justification the Board has stated that tl
meaning of the term "funeral supplies" has needed clarifi-
cation the clarification which does appear in this rule
applies to receptacles for human remains and not to an
other item which might be defined as a funeral supply
C 0

n r
* *- 1 *.. ** : ^O







. CIT fAS 34
39 PD0AM 30


-'. Therefore, the purpose of the rule appears to be to per- .
petuate a limitation of competition and reserve to licensed
.funeral directors the right to sell.coffins or caskets.
; 4 m e '-i, wv^ .-. *' -- '*: --t
The Respondent has pointed out that by statute only licensed
funeral directors are permitted to sell funeral supplies.
The Board has stated that the rule in question merely de-
fines 'caskets' as being funeral supplies which is the
ordinary and plain meaning of that word. 'The Board points
South in its memorandum filed on this issue that:

S "Under the doctrine of contemporaneous construction
the definitions and construction given by the body
which administers the statute will not be overturned
except for the most cogent reasons and unless clearly
erroneous and unreasonable."' Green v. Stuckey's of
Fanning Springs, Inc., 99 So.2d 867 (Fla. 1957).

SFurthermore, the term 'funeral director' is defined in
Section 470.01(4), F.S., as one who sells funeral supplies..
Similarly, Section 470.21 states that it is unlawful for
anyone to practice funeral directing without being so li-
censed by the state. So, the Board argues, the rule does no
more than apply a common sense definition to the word "fu-
-:neral supplies" and merely repeats what has been codified in
statute law that only a licensed funeral director may sell
funeral supplies. The Board then argues that the rule goes
no further than existing statutory law and therefore must be
valid.

However, it is the opinion of this Hearing Officer that by
defniing the term "funeral supplies" to include "the primary
receptacle of human remains" the Board is supplying a defini-
tion which does not appear in..tke statute. As such, the
rule in question does have a substantive effect and was
adopted for the purpose of increasing the Board's authority
to regulate such things as the Petitioner's sale of fiber
glass coffins. Viewed in this aJiat, istei apparent that
the economic impact statement issued by the Board in con-
junction with the adoption of this rule was erroneous and


* ..-


*r ..v
I *


35 FL DIVISION OF ADIRN HEARING REPORTS
FL CEbETAKT ASSOC. V BOARD OF FUNERAL DIRECTORS AND EBAUMERS

not done in compliance with Section 120.54(2)(a), F.S. +he
failure of an agency to prepare an adequate economic impact
statement in adopting an administrative rule is a fatal
defect to that rule's validity. The First District Court of
Appeal has recently considered this question in the case of
Department of Environmental Regulation v. Leon County, 344
So.2d 297 and stated at page 299:
". l .. :
"While Section 120.54 does not specifically
relate to an alleged erroneous economic impact.
statement to validity or invalidity of a rule,
it does require the promulgation of such a
statement by the agency as one of the steps
in the rule making procedure. Thus, the failure
to give such an economic impact statement
would constitute an invalid exercise of delegated
legislative authority. By the same token, the
giving of a false or erroneous economic impact
statement could also constitute an invalid
exercise of delegated legislative authority." .

It is clear that the economic impact statement above quoted
and prepared in conjunction with the adoption of the rule in
question is erroneous. The rule in question would have the
effect of preventing the members of the petitioning or-
ganization from conducting sales of the fiber glass coffin
in question. Such facts were known to the Board of Funeral
Directors when it adopted this rule for the rule was adpoted
for that specific purpose. While it could be argued that
sales of the-fiber glass coffins contradict state statute
law, that interpretation does not give'the rule in question
any greater validity. The rule was adopted to bolster the
Board's authority to restrict such sales. Without fairly
and adequately analyzing the economic impact of that po-
sition the rule in question must be declared to be invalid. 1
It is therefore ORDERED that Rule 21J-6.04, Florida Admin- J
istrative Code, is invalid.


i


r _~___~__ ______ ~ _


,,


j


Co0




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs