ALJDEC decisions subject to certification as final

16F-201506-FNR · Funeral Directors and Embalmers Board · 2016-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Jessie Welsh-Alexis,

Holder of License No.

FD1059/E1049/CR412/F1540,

Franklin Lambert,

Holder of License No. FD0921/E1102,

Phillip Scott Warner,

Holder of License No. CR565,

Saguaro Valley Cremation Services, LLC,

Holder of License No. C0108.

No. 16F-201506-FNR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 19, 2016; September 20, 2016; September 21, 2016; and September 22, 2016; the record was held open until October 21, 2016, to allow the parties to submit written closing arguments.

APPEARANCES: The Arizona State Board of Funeral Directors and Embalmers (“the Board”) was represented by Thomas C. Raine, Esq., Assistant Attorney General; Jessie Welsh-Alexis (“Ms. Welsh-Alexis”), Franklin Lambert (“Mr. Lambert”), Phillip Scott Warner (“Mr. Warner”), and Saguaro Valley Cremation Services, LLC (“Saguaro Valley”) (collectively “Respondents”) were represented by Charles E. Buri, Esq., Charles E. Buri, PLC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

The Board is the duly constituted authority for the regulation and control of the practice of the funeral profession in the State of Arizona.

Saguaro Valley is a crematory in Mesa, Arizona that holds Board-issued License No. C0108. Because Saguaro Valley only cremates human remains that have been sent from funeral homes, it is not required to have a funeral director. Saguaro Valley provides low-cost cremation services to consumers of modest means.

Ms. Welsh-Alexis holds Board-issued License No. FD1059/E1049/CR412/

F1540 to practice as a funeral director, embalmer, and cremationist in the State of Arizona. Between June 2015, and August 2015, Ms. Welsh-Alexis was Saguaro Valley’s responsible cremationist. She did not practice as a funeral director or embalmer at Saguaro Valley.

Mr. Warner holds Board-issued License No. CR575 to practice as a cremationist in the State of Arizona. Ms. Welsh-Alexis hired Mr. Warner to work as a cremationist at Saguaro Valley. Between June 2015 and August 2015, Mr. Warner worked as a cremationist at Saguaro Valley.

Mr. Lambert holds Board-issued License No. F0921/E1102 to practice as a funeral director and embalmer in the State of Arizona. Between June 2015 and August 2015, Mr. Lambert was Saguaro Valley’s business manager.

On or about September 11, 2015, the Board received a complaint about the business practices of Saguaro Valley from Mario Francini, who holds a Board-issued license that allows him to practice as a funeral director and embalmer in the State of Arizona. Mr. Francini is half-owner of Sunset Funeral Home, formerly La Paz Funeral Home, in Phoenix, Arizona (“Sunset”).

On or about September 21, 2015, the Board received a second complaint from Sylvia Moreno, Mr. Francini’s partner and the other owner of Sunset.

The Board assigned the complaints to its investigator Judith Stapley (“Ms. Stapley”) for investigation. Ms. Stapley was supervised in her investigation by Gary Hendricks (“Mr. Hendricks”), the Board’s License Administrator.

Ms. Stapley prepared a report of her investigation for the Board’s review. After reviewing the report, the Board voted to issue a complaint against Respondents’ licenses. On or about July 13, 2016, the Board issued a second amended complaint against Respondents that alleged that Respondents had failed to store human remains in Saguaro Valley’s refrigeration unit, had stacked minimum containers holding human remains during staging for cremations and in transit, had stacked cooling trays holding cremated human remains (“cremains”) on the floor, and had accepted bodies for cremation when the Disposition Transit Permits (“DTPs”) showed that cremation was to occur elsewhere. Based on this alleged misconduct, the second amended complaint charged that Respondents had committed unprofessional conduct as defined by A.R.S. § 32-1301(54)(k), and had violated A.R.S. §§ 32-1399(2) and (3) and A.A.C. R4-12-301(A)(1) and (2), furnishing cause to take disciplinary action against their licenses under A.R.S. §§ 32-1366(A)(1), (2), and (3).

Respondents’ attorney filed timely written answers to the second amended complaint, denying any statutory violations.

The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on September 19, 2016, September 20, 2016, September 21, 2016, and September 22, 2016.

The Board submitted ten exhibits and presented the testimony of nine witnesses:

Mr. Francini;

Ms. Moreno;

Ms. Stapley;

Jim Starks (“Mr. Starks”), who has been active in the funeral industry for 44 years and is the Dean of the International Cemetery Cremation and Funeral Association’s (“ICCFA’s”) cremation college;

Caressa Hughes (“Ms. Hughes”), the vice president of Service Corporation International (“SCI”), the largest funeral home and crematory company in the United States, which owns 34 funeral homes, 11 cemeteries, and 9 crematories in Arizona;

Michele Castaneda-Martinez (“Ms. Castaneda-Martinez”), the supervisor of the Maricopa County Department of Public Health, Office of Vital Registration;

Ruth Bennett (“Ms. Bennett”), the executive director of the Funeral Consumer Alliance of Arizona (“FCAA”);

Donna Backhaus, the program director of the mortuary science program at Chandler-Gilbert Community College (“CGCC”); and

Mr. Hendrix.

Respondents submitted 25 exhibits and presented the testimony of eleven witnesses:

Ms. Welsh-Alexis;

Sandy Greenley (“Ms. Greenley”), the owner of Angel’s Cremation and Burial (“Angel’s”), a funeral home in Mesa, Arizona;

Neal J. Greff (“Mr. Greff”), the owner of Sonoran Skies Mortuary (“Sonoran Skies”), a funeral home in Mesa, Arizona;

Mr. Warner;

Phillip M. Hobbs (“Mr. Hobbs”), the responsible funeral director at Angel’s, who also holds a Board-issued funeral director and embalmer license;

Christina Duwel (“Ms. Duwel”), who operates Season’s End Mortuary in Apache Junction, Arizona, and also holds a Board-issued funeral director, embalmer, and cremationist license;

Michael Mutton (“Mr. Mutton”), who held a Board-issued license as a funeral director and embalmer in Arizona until the licenses lapsed in 2012;

Jim Robinson (“Mr. Robinson”), a licensed insurance producer who sells pre-need funeral insurance who is the community liaison for Bunker’s Chapel Mortuary in Mesa, Arizona;

Jeremy Weston (“Mr. Weston”), who has been employed by Donor Network and many funeral homes in Arizona to transport human remains;

Mr. Lambert; and

Jonathan Woods (“Mr. Woods”), Saguaro Valley’s owner.

Hearing Evidence

Prior Discipline against Mr. Lambert’s Cremationist’s License

In 2011, ABC Channel 15 in Phoenix aired an exposé of Allstate Crematory’s practices, including storing human remains outdoors in a van for up to 19 hours. Mr. Lambert was the responsible cremationist of Allstate Crematory. As a result of ABC Channel 15’s story, Mr. Lambert entered into consent agreement with the Board in which he agreed to surrender his cremationist license.

The consent agreement apparently did not involve the stacking of cardboard minimum containers holding human remains before cremation.

After Mr. Lambert surrendered his cremationist’s license, Allstate Crematory was renamed Saguaro Valley. Mr. Lambert sold the facility to his brother-in-law, Mr. Woods, who had no previous experience in the funeral industry. Ms. Welsh-Alexis and Mr. Warner were hired. Mr. Lambert became Saguaro Valley’s business manager.

Respondents’ Failure to Store Human Remains

in Saguaro Valley’s Refrigeration Unit

The refrigeration unit at Saguaro Valley is approximately 10’ x 10’ and has racks on three walls on which minimum containers may be placed. In addition, dollies may be placed in the center of the refrigeration unit. Mr. Lambert testified that Saguaro Valley’s refrigeration unit can hold 16 minimum containers for adults. Because containers for children and for body parts are smaller, Saguaro Valley’s refrigeration unit could hold more containers if some containers held children’s bodies or body parts.

Saguaro Valley has three retorts in which bodies are cremated. It takes approximately two hours to cremate a body. Mr. Francini testified that it takes light to operate a retort and several witnesses testified that crematories are limited to operating during daylight hours. Ms. Welsh-Alexis acknowledged that Saguaro Valley can only cremate 15 bodies in a day.

Mr. Francini testified that he went to Saguaro Valley in June 2015, between 10:00 a.m. and 11:00 a.m. and saw multiple dollies with double or triple-stacked minimum containers holding human remains outside of the refrigeration unit.

Mr. Francini testified that in August 2015, between 11:00 a.m. and 1:00 p.m. he returned to Saguaro Valley to deliver the bodies of two adults and a baby. Despite being informed that Mr. Francini was coming, nobody was at the crematory because Ms. Welsh-Alexis was out getting food at a convenience store. Ms. Welsh-Alexis arrived 20 or 30 minutes later.

Mr. Francini testified that in August 2015, he heard all three retorts running but that the refrigerator did not appear to be on, because the door was open and he did not feel any cold air. He saw multiple dollies with stacked minimum contains holding human remains outside of the refrigeration unit.

On September 24, 2015, Ms. Stapley went to Saguaro Valley as a result of Mr. Francini’s and Ms. Moreno’s complaints. Mr. Warner was the only one present. Ms. Stapley observed three dollies holding minimum containers with human remains, two of which had two stacked minimum containers, for a total of five bodies out of refrigeration. Upon closer inspection, she saw only one minimum container in the refrigeration unit, which was working. She testified that two retorts were running and one was out of service.

Respondents’ witnesses suggested that the bodies had not been out very long or that the bodies had been embalmed, meaning that they did not have to be refrigerated. Mr. Francini testified that only 10% of bodies are embalmed and that it is rare for an embalmed body to be cremated.

The Board obtained Saguaro Valley’s cremation logs dated between June 2015, and July 2015, cremation authorizations, DTPs, and certificates of cremation. The Board also obtained records from funeral homes who had sent bodies to Saguaro Valley for cremation. Using this information, Ms. Stapley prepared a spreadsheet that showed the number of bodies at Saguaro Valley on any given day. Based on the capacity of the refrigeration unit to hold sixteen bodies and the fifteen bodies that can be cremated each day at Saguaro Valley, Ms. Stapley concluded that any day that Saguaro Valley had more than 31 bodies in its possession (16 in the refrigerated unit and 15 in the retorts), bodies were being kept out of refrigeration, even after giving Saguaro Valley the benefit of the doubt by assuming that bodies were delivered three at a time every two hours throughout the day. According to Ms. Stapley’s spreadsheet, on June 2, 2015, June 15-19, 2015, and August 24-26, 2015, Saguaro Valley had more than 31 bodies on the premises and could not have refrigerated all of them.

Respondents pointed out that some of the bodies may have been children or body parts, which would have needed less room to store. Respondents also submitted a chart that showed the number of cremations from June 1, 2015, through August 31, 2015, and argued that the number of cremations should have been deducted from the numbers on Ms. Stapley’s spreadsheet. According to Respondent’s exhibit, Saguaro Valley performed between 16 and 18 cremations on June 3, 2015, June 17, 2015, June 19, 2015, July 2, 2015, July 7, 2015, July 21, 2015, August 13, 2015, and August 27, 2015.

Stacking Minimum Containers of Human Remains for Staging and in Transit

Mr. Francini and Ms. Stapley testified that they saw minimum containers stacked on dollies at Saguaro Valley.

Respondents’ witnesses did not dispute that on occasion, they stacked minimum containers containing human remains on dollies. Specifically, while staging containers for cremation, Respondents commonly placed a container from a higher shelf in the refrigeration unit on top of a container on a dolly to avoid having to lift so much weight for the time it takes to lower the container onto the dolly.

Mr. Lambert acknowledged that when he transported human remains in minimum containers, he routinely stacked the containers as high as three deep. Mr. Lambert testified that racks for vans cost as much as $12,000.00 and that making multiple trips to transport bodies would not be economical. Mr. Lambert acknowledged that he does not place boards between stacked minimum containers during transport.

The minimum containers have four layers of cardboard. If a body weighs more than 250 or 300 pounds, Respondents use a minimum container with a wooden bottom. While staging for cremation and in transport, Respondents testified that they make sure that the heaviest container is on the bottom, with plywood or Masonite boards between containers. The bodies are not stacked directly on each other but, instead, due to space afforded by the minimum container, there is about 18” of vertical space between bodies.

The CANA certification program states that “[c]remation containers and remains should be placed one per shelf and never stacked on top of one another or on the floor.” However, the CANA certification program also states that “[t]he policies, procedures, and recommended standards of practice in the CANA Crematory Operations Certification Course and Manual are purely aspirational and in no way create a standard of care above the standard that currently exists in each operator’s location of practice. These standards are not to be used by parties to litigation over whether or not they have been observed.”

Mr. Starks testified that the cremation college specifically teaches that bodies must not be stacked and uses a photograph of a van with stacked containers as an example of what not to do. He testified that containers stacked in transport could pose a safety issue if the vehicle stops or turns too fast.

Ms. Hughes testified that in addition to being vice president of SCI, she is on the board of the ICCFA and CANA, the two major trade organizations in the industry. Ms. Hughes testified that SCI prohibits stacking at its facilities nationwide and that she received permission to state on behalf of both CANA and ICCFA that stacking containers holding human remains is not the industry standard and that these organizations’ cremation courses teach that professionals should avoid stacking containers.

Ms. Bennett testified that she has never seen containers holding human remains stacked and that FCAA recently terminated its relationship with a local mortuary based on the allegation of stacking. Ms. Bennett testified that family members expect that when their deceased loved ones die, their bodies will be treated with respect and that stacking bodies in cardboard containers does not show respect.

Ms. Backhaus testified that CGCC’s written materials provided to students in its mortuary science program state that stacking of containers holding human remains should never be done. The Matthews Cremation Group training manual states that cremation containers “must never be stacked or placed on the floor.” The American Cremationist, whose materials are used across the curriculum of the CGCC Mortuary Science Program, states, “human remains awaiting cremation must be properly cared for . . . . Cases must never be stacked or placed on the floor.” Ms. Backhaus has never heard a practitioner say that stacking is an acceptable practice.

Ms. Welsh-Alexis, Mr. Warner, Ms. Greenley. Mr. Greff, Ms. Duwel, Mr. Mutton, Mr. Hobbs, Mr. Robinson, and Mr. Weston all testified that stacking of minimum containers containing human remains is common in Arizona. Respondents submitted a photograph of a Maricopa County Sheriff’s Office deputy guarding inmates who were presumably burying indigent deceased citizens at the White Tanks cemetery with a van that showed stacked boxes.

Bodies that have not been embalmed may leak fluids, which could weaken the cardboard minimum container. Respondents all testified that they have never seen a minimum container break open or collapse. The Channel 15 broadcast that was played at the hearing included a picture of minimum containers that had been stacked in a van and coming open. Ms. Moreno testified that in summer 2015, she saw containers that Mr. Lambert had stacked bending at the corners.

Mr. Greff testified that although he thinks that stacking containers holding human remains does not violate any industry standard, he would never put a human body on top of another human body. Mr. Hobbs testified that he made sure that Ms. Greenley agreed to stop stacking minimum containers when he became the funeral director at Angel’s and that he would not want to stand in front of a TV camera and explain why stacking was occurring. Ms. Duwel testified that although she has observed stacking at other facilities, she has never had to stack minimum containers at Season’s End Mortuary because she has adequate equipment at her facility and does not accept bodies if her facility is at capacity.

Stacking Cooling Trays Holding Cremains on the Floor

Mr. Francini testified that he witnessed two or three cooling trays containing cremains sitting on the floor. Ms. Stapley testified that she saw five trays cooling on the floor, two of which were stacked on top of each other. Mr. Warner acknowledged that he routinely stacked cooling trays “pyramid style” with two trays on the bottom and one in the center.

Mr. Starks testified that placing cooling trays on the floor is permissible if they trays were not in a significant traffic area, but that cooling trays should never be stacked because it poses a risk of commingling. Mr. Starks testified that based on his experience, the remains of one human body always fit in one tray.

Ms. Welsh-Alexis and Mr. Warner pointed out that because the cooling trays have fins on them, even if they are on the floor, the tray does not touch the floor. Ms. Welsh-Alexis and Mr. Warner testified that stacking of cooling trays must be done carefully to minimize the risk of remains being commingled.

Accepting Bodies for Cremation When the Disposition Transit Permits Showed that Cremation Was to Occur Elsewhere

During the period from June 2015, to August 2015, Saguaro Valley accepted approximately 132 bodies for cremation which had DTPs that listed crematories other than Saguaro Valley as the place of final disposition/cremation. Most of the time, Saguaro Valley did not correct the DTP.

Ms. Castaneda-Martinez testified that a valid DTP is the legal authorization for someone to dispose of or transport human remains. The authorized disposition facility is the facility named on the DTP and any other facility is not authorized to dispose of the body.

Ms. Castaneda-Martinez was adamant that because a human body cannot legally be buried or cremated without an accurate DTP that correctly identifies the disposition facility, the disposition facility has a duty to ensure that the DTP is correct. Ms. Castaneda-Martinez testified that if a disposition facility receives a body with a DTP that names a different facility, it must contact the funeral home and obtain a corrected DTP. Ms. Castaneda-Martinez testified that since the form is computerized, a corrected DTP can be obtained within a matter of minutes.

Ms. Welsh-Alexis testified that when she received a body for cremation at Saguaro Valley, she only checked the DTP to make sure that the name on the DTP was the name of the person to be cremated. Ms. Welsh-Alexis testified that she was not employed as a funeral director by Saguaro Valley and that it is the funeral home’s responsibility to prepare the DTP and to ensure that the information on it is correct.

Ms. Welsh-Alexis testified that both the funeral home and the family knows that the body will be cremated at Saguaro Valley and that, after the cremation, the ashes are returned to the family and do not remain at Saguaro Valley, unlike a body that is buried in a cemetery.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction.

The Board bears the burden of proof to establish cause to discipline Respondents’ licenses by a preponderance of the evidence. Respondents bear the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Whether the Board Violated A.R.S. § 41-1009(A) in its Investigation

Respondents argued that Ms. Stapley’s failure to provide Respondents with the so-called regulatory bill of rights required by A.R.S. § 41-1009(A) when she conducted her inspections of Saguaro Valley’s premises should affect the outcome of this proceeding. A.R.S. § 41-1009(A) requires “[a]n agency inspector, auditor or regulator who enters any premises of a regulated person for the purpose of conducting an inspection or audit shall, unless otherwise provided by law,” provide certain information and documents. (Emphasis added.) In contrast, A.R.S. § 32-1367 requires the Board to conduct an investigation under the following circumstances:

A. The board shall conduct an investigation when it receives a written complaint that appears to show the existence of any grounds for disciplinary action under this chapter or rules adopted pursuant to this chapter.

B. The board on its own initiative may investigate any information that appears to show the existence of any grounds for disciplinary action under this chapter or rules adopted pursuant to this chapter.

(Emphasis added.) A.R.S. § 32-1367 does not require the Board’s investigator to provide any documents or information to a licensee who is being investigated pursuant to a complaint from the public or after receiving information that the licensee may have committed acts that furnish grounds to discipline the license.

“A cardinal rule of statutory interpretation is to give full effect to each statutory word or phrase so that no part is rendered void, superfluous, contradictory or insignificant.” “[I]f a statute specifies under what conditions it is effective, we can ordinarily infer that it excludes all others.” Statutes are not interpreted in a vacuum and legal relationships mandated by one statute cannot be ignored in interpreting another. A.R.S. § 41-1009(A) governs any agency’s routine inspection or audit. A.R.S. § 32-1367 governs the Board’s investigations after receiving a complaint or information that a licensee may have committed misconduct. Under well-established canons of statutory construction, the legislature’s use of different words in the two statutes precludes the importation of A.R.S. § 41-1009(A)’s requirements into A.R.S. § 32-1367. Therefore, when Ms. Stapley went to Saguaro Valley to investigate Mr. Francini’s and Ms. Moreno’s complaints pursuant to A.R.S. § 32-1367, she was not required to provide to Saguaro Valley’s employees the so-called regulatory bill of rights required by A.R.S. § 41-1009(A).

Potentially Applicable Statutes

A.R.S. § 32-1366(A) provides among the grounds for disciplinary action against a licensee the following:

After a formal hearing, the board may deny or refuse to renew a license or registration or may take disciplinary action against any embalmer, intern, funeral director or other person licensed or registered pursuant to article 2 of this chapter for any of the following reasons:

Commission of an act of unprofessional conduct.

Repeated or continuing negligence or any other professional incompetence in the practice of funeral directing or embalming.

3. Violation of any provision of this chapter or any rule adopted pursuant to this chapter.

A.R.S. § 32-1301(54)(k) includes among the definitions of “unprofessional conduct” the following:

Committing any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence or incompetence if the act has a reasonable relationship to funeral directing or embalming.

A.A.C. R4-12-301 provides general funeral services requirements, including the following:

A. Any funeral director, embalmer, funeral establishment or other person licensed by the Board shall comply with the following general funeral service requirements:

1. Licensees shall deal with funeral services consumers in an honest and truthful manner. . . . Licensees shall not engage in any conduct which causes or results in disrespect for the deceased person, disruption of the funeral services or any injury to the decedent’s family, contrary to the prevailing standards and practices of the profession in this state.

2. Licensees shall perform their respective responsibilities concerning the care, handling, transportation and disposition of human remains and concerning all transactions with funeral services consumers in a careful and competent manner in accordance with the prevailing standards and practices of the profession in this state.

. . . .

B. Failure to substantially comply with the provisions of this Section shall be deemed to be evidence of gross negligence, repeated or continuing negligence or other professional incompetence.

A.R.S. § 32-1390.01(B) provides that “[t]he acts or omissions of an agent or employee of a funeral establishment that violate any provision of this chapter or rules adopted pursuant to this chapter are considered to be the acts or omissions of the funeral establishment.”

A.R.S. § 32-1399 provides standards of practice for crematories, in relevant part as follows:

2. If a crematory is unable to cremate the human remains immediately after taking custody, the crematory shall store the remains in a holding facility that is secure from access by anyone other than employees of the crematory and public officials in the performance of their duty and that complies with applicable public health laws, preserves the dignity of the human remains and protects the health of employees of the crematory.

3. A crematory . . . shall not hold human remains for cremation unless they are contained in an individual, closed casket or rigid cremation container of combustible material that preserves the dignity of the human remains and that protects the health of employees of the crematory. Human remains that are not embalmed shall be held by the crematory in a refrigerated holding facility or in compliance with applicable public health laws.

A.A.C. R4-12-201(20) provides that “‘[r]efrigerated’ means the act of maintaining human remains at or below a temperature of 38 degrees Fahrenheit.” A.A.C. R4-12-612(3) provides that “[i]n addition to the requirements of A.R.S. § 32-1394, the responsible cremationist of a crematory shall ensure . . . [h]uman remains that are not embalmed are held in a refrigerated holding facility at the cremator or sent to a funeral establishment or another crematory for refrigeration.”

Whether Respondents’ Alleged Failure to Keep Minimum Containers in Refrigeration Furnishes cause for Discipline against their Licenses

The Board established that Ms. Welsh-Alexis and Mr. Warner kept at least some minimum containers out of refrigeration at Saguaro Valley. Respondents did not establish that all of the containers left out of refrigeration held embalmed remains or were only left out of refrigeration a short time as part of staging before placing the containers in the retort.

Therefore, the Board established grounds to discipline Respondents’ licenses, as follows:

That Ms. Welsh-Alexis and Saguaro Valley committed an act of unprofessional conduct under A.R.S. § 32-1366(A)(1), as defined by A.R.S. § 32-1301(54)(k);

That Ms. Welsh-Alexis, Mr. Warner, and Saguaro Valley violated one of the Board’s statutes under A.R.S. § 32-1366(A)(3), namely A.R.S. § 32-1399(2) by failing to preserve the dignity of human remains by securing them in a secured unit;

That Ms. Welsh-Alexis, Mr. Warner, and Saguaro Valley violated one of the Board’s statutes under A.R.S. § 32-1366(A)(3), namely A.R.S. § 32-1399(3), by failing to preserve the dignity of human remains by securing them in a refrigerated unit;

That Ms. Welsh-Alexis and Saguaro Valley violated the Board’s rules under A.R.S. § 32-1366(A)(3), namely A.A.C. R4-12-301(A)(1) and (2), by showing disrespect to the deceased person and incompetence and violating prevailing standards in the funeral industry by failing to secure bodies held for cremation in a secured, refrigerated unit; and

That Ms. Welsh-Alexis, Mr. Warner, and Saguaro Valley committed repeated or continuing acts of negligence or professional incompetence under A.R.S. § 32-1366(A)(2), as defined by A.A.C. R4-12-301(B).

Whether Respondents’ Stacking of Minimum Containers of Human Remains for Staging and in Transit Furnishes Cause to Discipline Their Licenses

Respondents acknowledged that they stacked minimum containers holding human remains during staging and in transit.

The Board presented credible evidence that current prevailing standards in the funeral profession do not allow practitioners to stack minimum containers holding human remains to serve their own convenience or to reduce costs and thereby increase profits. Only Mr. Lambert admitted to recently stacking minimum containers; Respondents’ other witnesses who are currently employed in the funeral profession all testified that they discontinued the practice of stacking some time ago.

Therefore, the Board established grounds to discipline Respondents’ licenses, as follows:

That Ms. Welsh-Alexis, Mr. Lambert, Mr. Warner, and Saguaro Valley committed an act of unprofessional conduct under A.R.S. § 32-1366(A)(1), as defined by A.R.S. § 32-1301(54)(k), by stacking minimum contains during staging and/or in transit;

That Ms. Welsh-Alexis, Mr. Lambert, Mr. Warner, and Saguaro Valley violated one of the Board’s statutes under A.R.S. § 32-1366(A)(3), namely A.R.S. § 32-1399(2), by stacking minimum contains during staging and/or in transit;

That Ms. Welsh-Alexis, Mr. Lambert, and Saguaro Valley violated one of the Board’s rules under A.R.S. § 32-1366(A)(3), namely A.A.C. R4-12-301(A)(1) and (2), by stacking minimum contains during staging and/or in transit;

That Ms. Welsh-Alexis, Mr. Lambert, Mr. Warner, and Saguaro Valley committed repeated or continuing acts of negligence or professional incompetence under A.R.S. § 32-1366(A)(2), as defined by A.A.C. R4-12-301(B), by stacking minimum contains during staging and/or in transit.

Whether Respondents’ Alleged Stacking of Trays Holding Cremains Furnishes cause for Discipline against their Licenses

The Board established that Respondents stacked cooling trays holding cremains on the floor.

The Board did not establish that carefully stacking two cooling trays on the floor away from a traffic area violates current prevailing standards in the funeral profession.

Therefore, the Board did not establish grounds to discipline Respondents’ licenses based on their stacking of cooling trays holding cremains on the floor under A.R.S. § 32-1366.

Whether Respondents’ Failure to Correct the DTP for 210 Individuals Furnishes cause for Discipline against their Licenses

Respondents acknowledged that they did not routinely check the place of final disposition on the DTPs that accompanied the human remains sent to Saguaro Valley and did not generally contact the funeral home to correct the place of final disposition if the place of final disposition identified was not Saguaro Valley.

The Board’s statutes do not expressly address licensees’ responsibility for the information on DTPs. Instead, DTPs are governed by the Arizona Department of Health Services’ (“ADHS’”) statutes and regulations under Title 36.

A.R.S. § 36-326 provides in relevant part as follows:

A. A funeral establishment or responsible person who takes possession of human remains shall obtain a disposition-transit permit from a local registrar, a deputy local registrar or the state registrar before either of the following:

1. Providing final disposition of the human remains.

. . . .

G. To obtain a disposition-transit permit, a funeral establishment or responsible person must submit the information required pursuant to this chapter and rules adopted pursuant to this chapter to the state registrar or to the local registrar or deputy local registrar of the registration district where the death occurred.

A.R.S. § 36-301(17) defines “funeral establishment” by referring to A.R.S. § 32-1301, which provides definitions for the Board’s statutes. A.R.S. § 32-1301(25) defines “funeral establishment” as “a business at a specific location that is licensed pursuant to this chapter and that is devoted to the care, storage or preparation for final disposition or transportation of dead human bodies.” A.A.C. R9-19-302 provides in relevant part as follows:

A. A funeral establishment or responsible person shall obtain a disposition-transit permit for a deceased individual's human remains before a final disposition listed in subsection (B)(5) of the human remains.

1. A disposition-transit permit may list more than one final disposition.

2. A disposition-transit permit issued by any deputy local register, local registrar, or the state registrar is valid for each final disposition listed on the disposition-transit permit of the human remains in any registration district in the state or, if listed on the disposition-transit permit, for removal from the state.

. . . .

B. Except as provided in subsection (D), a funeral establishment or responsible person shall submit the following information to the local registrar or deputy local registrar of the county where the death occurred or the state registrar to obtain a disposition-transit permit for a deceased individual's human remains:

. . . .

5. The anticipated final disposition of the human remains including one or more of the following:

. . . .

d. Cremation . . . .

(Emphasis added.) The parties agreed at the hearing that the funeral home is responsible for preparing DTPs for the bodies sent to crematories like Saguaro Valley.

A.R.S. § 36-331 provides the duties of persons in charge of place of final disposition as follows:

A. Except as otherwise provided by law, a person in charge of a place of disposition shall not inter, cremate or allow other disposition of human remains without receiving a disposition-transit permit with the human remains.

B. A person in charge of a place of disposition shall maintain a record of a disposition pursuant to rules adopted pursuant to this chapter.

C. A person in charge of a place of disposition shall permit the state registrar to inspect the disposition records.

The Board’s regulation, A.A.C. R4-12-631, requires crematories and funeral establishments that provide for cremation to keep the following records:

A. The responsible cremationist of a crematory or funeral establishment that provides for cremation shall ensure for each cremation performed that the following records are established and maintained for five years from the date of the cremation:

1. The name of the decedent and date of death;

2. The authorization document required by A.R.S. § 32-1365.01, if applicable or a record of the oral or written consent of the authorizing agent that meets the requirements in A.R.S. § 32-1365.02; and

3. A copy of the completed disposition-transit permit that meets the requirements in A.R.S. § 36-326 and A.A.C.

R9-19-302.

B. The responsible cremationist of a crematory or funeral establishment that provides for cremation shall establish and maintain a written permanent chronological log of cremations that includes the identification number and identification information required in A.R.S. § 32-1399(1) and the following for each cremation performed:

1. The day, month, and year the human remains were received at the crematory or funeral establishment that provides for cremation;

2. Name of the decedent;

. . . .

5. A check list showing receipt of the following:

a. The authorization document required in R4-12-631(A)(2); and

b. The disposition-transit permit . . . .

The Board’s and ADHS’ statutes and regulations do not expressly prohibit a crematory from accepting or cremating a body if the DTP does not show an accurate place of final disposition. No statute or regulation requires a crematory to contact a funeral establishment to correct a DTP that shows the wrong place of final disposition. However, A.A.C. R9-19-302(A)(2) provides that a DTP issued by a local register, local registrar, or the state registrar based on the information provided by the funeral home is only valid for the final disposition facility listed.

Therefore, the Board established that Saguaro Valley routinely accepted bodies for cremation with DTPs that showed another place of final disposition. Because these DTPs were invalid, the Board established that Saguaro Valley’s practice constituted repeated or continuing negligence under A.R.S. § 32-1366(2).

With respect to the penalty, although the Board established that Respondents kept some bodies out of refrigeration, it did not establish that the practice was routine. It appears that standards in the funeral profession have been evolving and that the stacking of minimum containers holding human remains may have been an acceptable practice in the remote past. As noted above, the statutes and rules that make crematories responsible for ensuring the DTPs accurately state the place of final disposition are not completely straightforward or unequivocal. This decision should place all of the Board’s licensees on notice of applicable professional standards.

RECOMMENDED ORDER

Based on the foregoing, on the effective date of the final order in this matter, pursuant to A.R.S. § 32-1367(E), IT IS ORDERED that License No. FD1059/E1049/ CR412/F1540 of Jessie Welsh-Alexis shall be suspended for a period of 30 calendar days.

IT IS FURTHER ORDERED that following the 30-day suspension, License No. FD1059/E1049/CR412/F1540 of Ms. Welsh-Alexis shall be placed on disciplinary probation for one year, with terms to include that she comply with all of the Board’s statutes and regulations and that she complete a course in acceptable cremation practice that the Board has approved as a condition of completing her probationary term.

IT IS FURTHER ORDERED that License No. FD0921/E1102 of Franklin Lambert shall be suspended for a period of 30 calendar days.

IT IS FURTHER ORDERED that following the 30-day suspension, License No. FD0921/E1102 of Mr. Lambert shall be placed on disciplinary probation for one year, with terms to include that he comply with all of the Board’s statutes and regulations and that he complete a course in acceptable cremation practice that the Board has approved as a condition of completing his probationary term.

IT IS FURTHER ORDERED that License No. CR565 of Phillip Scott Warner shall be suspended for a period of 30 calendar days.

IT IS FURTHER ORDERED that following the 30-day suspension, License No. CR565 of Mr. Warner shall be placed on disciplinary probation for one year, with terms to include that he comply with all of the Board’s statutes and regulations and that he complete a course in acceptable cremation practice that the Board has approved as a condition of completing his probationary term.

IT IS FURTHER ORDERED pursuant to A.R.S. § 32-1390.01(C), that License No. C0108 of Saguaro Valley Cremation Services LLC shall be suspended for 30 calendar days.

IT IS FURTHER ORDERED that following the 30-day suspension, License No. C0108 of Saguaro Valley shall be placed on disciplinary probation for one year, with terms to include that it comply with all of the Board’s statutes and regulations.

IT IS FURTHER ORDERED pursuant to A.R.S. § 32-1368, that as a final condition of probation, Respondents shall be jointly and severally responsible for the Board’s administrative costs and expenses incurred in connection with its investigation and the hearing.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, November 7, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Rudolfo "Rudy" Thomas, Executive Director

Funeral Directors and Embalmers Board