PDF copy: ALJDEC decisions subject to certification as final

16F-201609-FNR · Funeral Directors and Embalmers Board · 2017-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of No. 16F-201609-FNR

Angel's Cremation & Burial, LLC ADMINISTRATIVE LAW JUDGE Respondent DECISION

HEARING: April 24, 2017, and April 25, 2017, with the record held open until May 22, 2017. APPEARANCES: Respondent Angel’s Cremation and Burial, LLC (Respondent or Angel’s) was represented by Charles E. Buri. The Arizona State Board of Funeral Directors and Embalmers (Board) was represented by Assistant Attorney General Thomas Raine. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. The Board is the duly constituted authority for the regulation and control of the practice of the funeral profession in the State of Arizona. 2. Angel’s holds Board-issued License No. B0676 to operate a funeral establishment in the State of Arizona. 3. On or about May 27, 2016, the Board received an audio recording from Kenia Conner, Respondent’s former Responsible Funeral Director. The recording was of a May 18, 2016 hearing conducted by the Arizona Department of Economic Security Office of Appeals, at which Sandy Greenley, owner of Angel’s, testified under oath. 4. Ms. Greenley testified that Angel’s routinely stacked containers holding human remains and that she considered the stacking of containers holding human remains

to be a normal and accepted practice in the industry.

5. After investigation and Ms. Greenley’s testimony in a separate matter, the

Board determined cause existed to issue a citation against Respondent.

6. On or about November 14, 2016, the Board issued a Complaint and Notice

of Formal Hearing (Complaint) against Respondent alleging that Respondent had stacked

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 containers holding human remains.1 Based on this alleged misconduct, the Complaint charged that Respondent had violated A.A.C. R4-12-301(A)(1), (2), and (5),2 furnishing cause to take disciplinary action against its license. 7. Respondent’s attorney filed a timely written answer to the Complaint, denying any statutory violations. 8. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 24, 2017, and April 25, 2017. Stacking of Containers Holding Human Remains 9. The undisputed evidence at hearing established that Respondent routinely stacked containers holding human remains. 10. Kenia Conner, Angel’s former responsible funeral director, testified that human remains to be cremated were placed in cardboard containers and remained in the refrigeration unit until they were picked up for transport to the crematory. Ms. Conner stated she was not usually present at Angel’s when “boxing” took place at the end of the day or when the containers were picked up by the crematory. Ms. Conner stated that in late 2015, she was informed by Michael Vasquez and Michael Banks, former employees of Angel’s, that Ms. Greenley had been directing them to stack containers on top of each other when there were more containers awaiting transport than there were available carts. Because

The Complaint included Phillip Hobbs, Respondent’s Responsible Funeral Director since February 2016. Prior to the hearing, the Board withdrew any allegations against Mr. Hobbs as the conduct underlying the allegations occurred prior to Mr. Hobbs becoming Respondent’s Responsible Funeral Director. 2 A.A.C. R4-12-301(A) provides in pertinent part as follows: 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 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. .... 5. Licensees shall not make statements nor engage in activities which foreseeably could result in needless infliction of emotional distress on members of the decedent’s family or result in exposing the remains to unnecessary indignity . . . .

Ms. Conner was aware of the Board’s position on stacking from a case against the crematory used by Angel’s, she told Mr. Vasquez and Mr. Banks to cease stacking containers. Later, Ms. Conner found out that Ms. Greenley had instructed Mr. Vasquez and Mr. Banks to continue the practice of stacking and that Ms. Greenley would “take the heat for it.” Because Ms. Conner feared that, as the responsible funeral director, she would face discipline of her license for stacking, she confronted Ms. Greenley regarding the practice. Ms. Greenley informed Ms. Conner that she did not believe stacking was against the law. Ms. Conner resigned her position at Angel’s on February 24, 2106. 11. Mr. Vasquez, former Angel’s intern, testified that on multiple occasions Ms. Greenley had told him and other employees to stack the containers after Ms. Conner left for the day and stated that Ms. Greenley would “take the heat for it.” Mr. Vasquez stated that “boxing” occurred at night, but the containers were not picked up until the morning. Mr. Vasquez indicated he felt the practice of stacking containers was not appropriate, and he left Angel’s on February 5, 2017. 12. Ms. Greenley testified that she or her employees would stack whenever there were more containers holding human remains awaiting transport than there were carts available. Ms. Greenley indicated this rarely occurred during the summer, but occurred a few times a week during the winter when Angel’s was busier. Ms. Greenley stated that any time containers were stacked, staff noted the weight of the individual and put the heavier container on the bottom. Ms. Greenley testified that the containers could be stacked for as long as four hours before they were picked up for transport. Prevailing Standards in the Industry 13. Of the witnesses who testified, Ms. Conner, Mr. Vasquez, Dr. Thomas Taggart,3 Chad Johnson,4 Bradley Hansen,5 Peter Callaghan,6 Jay McBeath-Ford,7 and

Dr. Taggart has worked in the funeral industry since 1961, has taught mortuary science since 1983, and is the founding director of Chandler-Gilbert’s Mortuary Science program, the only accredited mortuary science program in Arizona. Mr. Johnson, AL Moore Grimshaw, is a licensed funeral director and embalmer with 35 years of experience in the Arizona funeral industry. Mr. Hansen, Hansen Mortuaries, is a licensed funeral director and embalmer since 1979. Mr. Callaghan, Evergreen Cemetery in Tucson, Arizona, is a licensed funeral director, embalmer, and cremationist who has worked in the Arizona funeral industry since 1982. Mr. McBeath-Ford, Mortuary Transport Services, has been a transport driver for 10 years. Robin Moon8 each testified that stacking containers holding human remains was disrespectful and undignified. All the witnesses acknowledged that there was no Board rule expressly prohibiting the stacking of containers and that the definitions of “disrespectful” and “undignified” were subjective. 14. Ms. Conner, Mr. Vasquez, Dr. Taggart, Mr. Johnson, Mr. Hansen, and Mr. Callaghan testified that it was the prevailing standards and practices of the funeral industry that containers holding human remains were not to be stacked. 15. Ms. Conner, Dr. Taggart, Mr. Johnson, and Mr. Callaghan testified that stacking containers holding human remains violated the duty to handle human remains in a careful and competent manner. Specifically, the witnesses expressed a concern that if a container stacked under another container collapsed, damage to the deceased in the container on the bottom of the stack could occur. Further, the witnesses testified that purging of bodily fluids can occur at any time and that bodily fluids leaking from the top container could contaminate the bottom container.9 16. Mr. Johnson and Mr. Hansen also testified that they believed a decedent’s family members would be upset if they learned that containers holding their loved one had been stacked. Dr. Taggart testified that containers placed side by side are equal, but containers stacked top and bottom are not equal. 17. It was also noted that transport vehicles used in the industry are regularly equipped with expensive hydraulic lifts to allow up to four containers to be transported at a time without the containers being stacked directly on top of each other. 18. Gary Hendrix, the Board’s license administrator, testified that he has been employed by the Board for four years. Mr. Hendrix indicated that he had inspected all but four of the 176 funeral homes and 55 crematories in the state. Unless a facility was in a remote area, Mr. Hendrix made unannounced inspections of the facilities. While Mr. Hendrix was told that stacking of containers holding human remains was an unacceptable practice and that he should be on the lookout for such activities, he had never seen any stacked containers in any of his unannounced inspections. Ms. Moon, Adair Funeral Home, is a licensed funeral director who has worked in the Arizona funeral industry since 2011. Most human remains to be cremated are not embalmed prior to cremation, therefore, purging of bodily fluids is still a concern. 19. Mr. Hobbs, Angel’s current Responsible Funeral Director, testified that he does not “care for” stacking containers holding human remains and that he would never leave containers stacked for an hour. Mr. Hobbs stated that the practice of temporarily stacking containers during the “boxing” process, for approximately 30 seconds, was acceptable. 20. Ms. Greenley testified that, because there was no statute or Board rule expressly prohibiting stacking containers holding human remains, she did not believe the practice to be unlawful. Ms. Greenley did not believe stacking to be disrespectful or undignified. Ms. Greenley professed she was a deeply religious person and the practice of stacking did not offend her religious believes. Ms. Greenley testified that she had observed stacking at other funeral establishments where she worked including Wyman Cremation & Burial Chapel, Arizona Cremation, and Todd Allen Mortuary. Ms. Greenley testified that she had asked some families if they would be object to their loved ones being in containers that were stacked and no one expressed any concerns. 21. Mr. McBeath-Ford testified that he had observed stacking at ten or more funeral establishments during his ten years as a driver for Mortuary Transport Services; however, he refused to name any of the facilities. 22. During a prior hearing before the Office of Administrative Hearings,10 the issue of stacking containers holding human remains was addressed. During that hearing, several expert witnesses testified and the parties agreed to submit portions of that testimony as evidence in this hearing.11 23. At that prior hearing, James R. Starks, Caressa Hughes, and Ruth Bennett testified that stacking containers holding human remains is contrary to the prevailing practices in the funeral industry because it did not accord the deceased the dignity and respect that was due. 24. Mr. Starks is the dean of the International Cemetery Cremation Funeral Association (ICCFA)’s University Cremation College with 44 years of experience owing

In the Matter of Jessie Welsh-Alexis, Franklin Lambert, Phillip Scott Warner, and Saguaro Valley Cremation Services, L.L.C., OAH Docket No. 16F-201506-FNR. The Administrative Law Judge reviewed the relevant portions of the transcripts provided by the parties in the prior matter. and managing funeral homes and crematories. Mr. Starks testified that stacking containers holding human remains “should never be allowed anywhere.” 25. Ms. Hughes is the managing director for SCI, which operates 34 funeral homes, 11 cemeteries, and 9 crematories in Arizona. Ms. Hughes testified that SCI prohibits the practice of stacking containers holding human remains. Ms. Hughes is also on the Board of Directors for Cremation Association of North America (CANA) and ICCFA. Ms. Hughes was given authorization to testify on behalf of CANA and ICCFA that stacking containers was not an accepted industry standard. 26. Ms. Bennett, executive director of the Funeral Consumer Alliance of Arizona, testified she had inspected between 18 to 24 funeral homes in the past 10 years and had never seen or heard of stacking containers holding human remains until she was asked to testify in the prior hearing. 27. Also at the prior hearing, Jessie Welsh-Alexis, Franklin Wayne Lambert, Neal Greff, Christine Duwel, Mike Mutton, James Robinson, and Jeremy Weston testified that they had, at various times during their careers, observed stacking containers holding human remains and believed it to be a common practice in Arizona. Further, all testified that stacking was not contrary to prevailing practices of the funeral profession in Arizona and that it did not constitute a failure to preserve the dignity of human remains, disrespect for the deceased person, or failure to handle human remains in a careful and competent manner. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.12 2. The Board bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.13 Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.14

See A.R.S. §§ 33-1367, 32-1390.01, and 41-1092 and A.A.C. R4-12-125. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”15 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.”16 4. Respondents acknowledged that they stacked containers holding human remains awaiting transport. 5. The Board presented credible evidence that current prevailing standards in the funeral profession do not allow practitioners to stack containers holding human remains to serve their own convenience or to reduce costs and thereby increase profits. While some employees may engage in that practice of stacking in contravention of a facility’s policies, such independent actions do not render the conduct acceptable within the funeral profession as a whole. 6. As the witnesses indicated, if the Board had an explicit rule stating that the stacking of containers holding human remains was not an acceptable practice, there would be no need to interpret what is or what is not a prevailing standard or practice in the state of Arizona. However, it is not practicable to expect the Board to outline every possible act that constitutes a violation. 7. Therefore, the Board established grounds to discipline Respondent’s license in that Respondent violated one of the Board’s rules under A.R.S. § 32- 1366(A)(3), namely A.A.C. R4-12-301(A)(1), (2), and (5) by stacking containers holding human remains while awaiting transit. 8. It appears that standards in the funeral profession have been evolving and that the stacking of containers holding human remains may have been an acceptable practice in the remote past, but such a practice is no longer the norm. RECOMMENDED ORDER

MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). IT IS ORDERED pursuant to A.R.S. § 32-1367(E) that within 60 days of the effective date of the Order entered in this matter, Respondent is liable to pay to the Board a civil penalty in the amount of $3,000.00, and such payment shall be made by cashier’s check or money order made payable to the Board. IT IS FURTHER ORDERED pursuant to A.R.S. § 32-1368 that Respondent is 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, June 12, 2017.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Judith Stapley, Arizona Board of Funeral Directors & Embalmers