COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY
BOARD OF REGISTRATION
OF FUNERAL DIRECTORS
AND EMBALMERS
______________________________
In the Matter of
Derek Wallace
License No. EM-6438
Establishment No. 53
_____________________________
Docket Nos. EM-02-011
EM-02-014
EM-02-016
EM-02-026
EM-03-179
Final Decision and Order
Procedural History
The Massachusetts Board of Registration of Funeral Directors and Embalmers
(the “Board”) initiated this formal adjudicatory proceeding on December 12,
2002, by issuing an Order to Show Cause to Derek A. Wallace, a funeral director
licensed by the Board (License No. EM-6438) and the Hart-Wallace Funeral
Home, a funeral establishment licensed by the Board (Establishment No. 1043).
The Respondent filed his Answer on December 30, 2004. The Order to Show
Cause was amended by the First Amended Order To Show Cause (the “Order”)
on March 3, 2003. Respondent filed his Answer to the Order on April 21, 2003.
The Order directed Respondent Derek Wallace to appear and show cause why
his license as a funeral director and embalmer should not be disciplined,
suspended or revoked for failure to practice as a funeral director and embalmer
in a manner required by Massachusetts General Laws (“M.G.L.”) c. 112, §§ 61
and 84 and Board regulations. The Order also directed the Hart-Wallace Funeral
Home to appear and show cause why its establishment certificate to operate as a
funeral establishment in Massachusetts should not be disciplined, suspended or
revoked for failure to practice as a funeral home in a manner required by
Massachusetts General Laws (“M.G.L.”) c. 112, §§ 61 and 84 and Board
regulations. The specific allegations are set forth in the Amended Order attached
hereto as Exhibit A.
Administrative Hearings Counsel Anne Colleton, Esq., held a formal
adjudicatory hearing on July 10, 2003, July 11, 2003, September 18, 2003 and
September 22, 2003 pursuant to M.G.L. c. 30A, sections 10 and 11 and 801 CMR
1.01 et seq. Pasqua Scibelli, Esq. was Prosecuting Counsel. Respondent was
present and represented by Scott F. Gleason, Esq. Board Member John J.
Kazlauskas also presided over the hearing. Prosecuting Counsel filed her Post
Hearing Brief on December 4, 2004 and Respondent filed his Brief of Licensee on
the same date.
On June 22, 2004, pursuant to the requirements of 801 CMR
1.01(11)(c), the Administrative Hearings Counsel filed and served on the
parties a tentative decision.1 On June 23, 2004, Prosecuting Counsel
filed Objections to the Tentative Decision (the “Objections”). Respondent
did not file any objection or response to the Objections.
The Board considered the record, including the tentative decision
and the Objections. The Objections addressed one issue in the tentative
decision: the reason for Respondent’ failure to complete funeral
arrangements for Ms. Ruiz. The Objections ask the Board to reconsider
its initial finding that a misunderstanding occurred with respect to Ms.
Ruiz’s purchase of a casket from a source other than Respondent. After
11
801 CMR 1.01 (11) (c), the rule establishing the procedures as to Tentative Decisions,
provides that where, as in this case, the Board did not preside at the reception of evidence, the
presiding officer or designated employee who did shall issue a tentative decision. The parties are
entitled to an opportunity to “file written objections to the tentative decision… which may be
accompanied by supporting briefs.” 801 CMR 1.01 (11) (c) (1). The Board then considers the
record, including the tentative decision and any objections and responses filed thereto and either
modifies, reverses, or affirms and adopts the tentative decision, “making appropriate response to
any objections filed…” 801 CMR 1.01 (11) (d).
2
a careful review of the Objections, the Board concurs with Prosecuting
Counsel and, with the requested modification, affirms and adopts the
tentative decision and enters its Final Decision and Order based thereon.
The following witnesses testified at the hearing:
1)
Cynthia Goumas, for the Prosecution
2)
Mildred Ruiz, for the Prosecution
3)
Garry Burke, for the Prosecution
4)
Alex Ghersi, for the Prosecution
5)
Linda Stokes, for the Prosecution
6)
Kim Scully, for the Prosecution
7)
Jerry DeCristofaro, for the Prosecution
8)
John Bresnahan, for the Prosecution
9)
Expert Witness Robert Biggins, for the Prosecution
10)
Derek Wallace, for the Respondent
11)
Hank Farmer, for the Respondent
The following exhibits were admitted into evidence:
Prosecution exhibits:
Exhibit 1:
Order to Show Cause dated December 12, 2002
Exhibit 2:
Answer to Order to Show Cause
Exhibit 3:
Amended Order to Show Cause dated March 3, 2003
Exhibit 4:
Answer to Amended Order to Show Cause
Exhibit 5:
Board Licensure Record for Hart-Wallace Certificate
Establishment
Exhibit 6:
Board Licensure Record for Derek Wallace
Exhibit 7:
Articles of Incorporation for John J. Hart Funeral Home, Inc.
Exhibit 8:
Articles of Dissolution for John J. Hart Funeral Home, Inc.
Exhibit 9:
Articles of Incorporation for Wallace Enterprises, Inc.
3
Exhibit 10:
Annual Reports for Wallace Enterprises, Inc. 1996-2002
Exhibit 11:
Application for Establishment Certificate for Wallace
Enterprises
Exhibit 12:
Transfer of Ownership Record to Board, 8/27/1996
Exhibit 13:
Purchase and Sale from Hart to Wallace 9/1/1995
Exhibit 14:
Town of Seabrook Business License, Bayview Crematory
1999
Exhibit 15:
Town of Seabrook Business License, Bayview Crematory
2000
Exhibit 8:
Articles of Dissolution for John J. Hart Funeral Home, Inc.
Exhibit 9:
Articles of Incorporation for Wallace Enterprises, Inc.
Exhibit 10:
Annual Reports for Wallace Enterprises, Inc. 1996-2002
Exhibit 11:
Application for Establishment Certificate for Wallace
Enterprises
Exhibit 12:
Transfer of Ownership Record to Board, 8/27/1996
Exhibit 13:
Purchase and Sale from Hart to Wallace 9/1/1995
Exhibit 14:
Town of Seabrook Business License, Bayview Crematory
1999
Exhibit 15:
Town of Seabrook Business License, Bayview Crematory
2000
Exhibit 16:
Registrar of Deeds Records – Transfer of Land, New Zealand
Rd, Seabrook, NH
Exhibit 17:
Seabrook Building Permit Application from Dekes Realty
Exhibit 18:
Printout from Seabrook, Business License Ownership of
Record from Crematory
Exhibit 19:
Property Assessment for New Zealand Rd., Seabrook, NH
Exhibit 20:
Property Tax Statement to Dekes Realty for New Zealand
Rd., Seabrook, NH
Exhibit 21:
Declaration of Trust for Dekes Realty Trust
4
Exhibit 22:
Municipal Code for Town of Seabrook relative to Business
License
Exhibit 23:
Complaint Against Wallace, EM-02-026
Exhibit 24:
Wallace Response 8/5/02
Exhibit 25:
Complaint Against Wallace EM-02-016
Exhibit 25A: Statement of Funeral Goods and Services for Samuel Rios
Exhibit 26:
Wallace Response 1/30/02
Exhibit 27:
Complaint Against Wallace EM-02-011
Exhibit 28:
Complaint Against Wallace EM-02-014
Exhibit 29:
Wallace Response 11/15/01
Exhibit 30:
Statement of Funeral Goods and Services for Rosa Rios
Exhibit 31:
Complaint Against Wallace EM-03-179
Exhibit 32:
Letter from Cynthia Goumas to Board 2/25/03
Exhibit 33:
Copies of Checks from Cynthia Goumas to Hart Funeral
Home
Exhibit 34:
Copy of Pre-Need Agreement
Exhibit 35:
General Price List, FTC Disclosure Form
Exhibit 36:
Copy of Check from Wallace to Goumas
Exhibit 37:
Copies of Obituaries for Patricia Poole
Exhibit 38:
Bill of Sale of Bayview Crematory 9/1/2002
Exhibit 39:
FTC Funeral Rule Brochure with attached model forms and
Rule
Exhibit 40:
Board Records of Complaints against Wallace and HartWallace Funeral Home
Exhibit 41:
Power of Attorney form for Cynthia Goumas
Exhibit 42: Copy of Check to Hart from Goumas dated 12/29/2002
Exhibit 43:
Cashiers Check from Mildred Rios to Hart Wallace dated
10/13/01
Exhibit 44:
Front Page of family record book for Rosa Rios
5
Exhibit 45:
Bayview Crematory advertisement and envelope received
by Mr. Burke, 3/ 30/ 2003
Exhibit 47:
Chart of Obituary search by Investigator of Lawrence
Tribune
Exhibit 48:
Chart of Obituary search by Investigator of Boston Globe
and Boston Herald
Exhibit 49:
Copies of obituaries in Boston Globe and Boston Herald
from 10/4/2001 to 10/16/2001
Exhibit 50:
Copy of Derek Wallace advertisement in 2003 Funeral
Book/Directory
Exhibit 51:
Printout of reverse telephone number search by Investigator
Exhibit 52:
Printout of Funeral Licensure database for Kevin Brown
Exhibit 53:
Curriculum Vitae of Robert Biggins
Exhibit 61:
Delivery Sheets from Bayview Crematory
Exhibit 62:
Invoice from Bayview Crematory Dated September 15, 2003
Exhibit 63:
Letters from Derek Wallace to Attorney Sayeg
Exhibit 64:
Death Certificate of Robert Logan
Exhibit 65:
Death Certificate of Robert Derecktor
Exhibit 66:
Death Certificate of Henry Hoffman
Exhibit 67:
Complaint filed by Gilbert Gallant
Exhibit 68:
Pronouncement of Death form for Erna Wilhelm
Exhibit 69:
Death Certificate of Erna Wilhelm
Respondent Exhibits
Exhibit 54:
Prosecution’s Motion in Limine
Exhibit 55:
Respondent’s Opposition to Prosecution’s Motion in Limine
Exhibit 56:
Board’s Ruling on Prosecution’s Motion in Limine
Exhibit 57:
Letter from George Tetreault
6
Exhibit 58: Lawrence Police Incident Report
Exhibit 59: Five Death Certificates
Exhibit 60: Letter from Robert Carrier to the Board
Findings of Fact
We find as facts established in the record by a preponderance of
the evidence the following:
1.
Derek Wallace is a licensed funeral director and embalmer licensed
by the Board, License No. 6438. He has been in the Funeral Directors
business for the past fifteen (15) years and licensed for thirteen (13)
years. (Exhibits 2, 4, and 6 and Testimony of Derek Wallace).
2.
Respondent has received notice of this disciplinary proceeding and
the charges against his license. (Exhibits 1-4).
3.
On or about September of 1995, Derek Wallace purchased and
gained ownership of the John J. Hart Jr., Funeral Home Inc. (Exhibits 8,
9 and 13 and Testimony of Derek Wallace).
4.
About fifteen months later, on or about December 3, 1996, Derek
Wallace applied for an establishment certificate with the Board for the
Hart-McLennan Funeral Home, DBA Hart-Wallace Funeral Home
(Hereinafter referred to as Hart-Wallace Funeral Home). (Exhibit 11 and
Testimony of Derek Wallace).
5.
The Board issued to Hart-Wallace Funeral Home, a certificate as a
funeral home, Establishment Certificate No. 1043, in or about 1996.
(Exhibits 2, 4, 11 and Testimony of Derek Wallace).
6.
The Board’s files on the documents filed by Derek Wallace with
his application for an Establishment Certificate for the Hart-Wallace
Funeral Home do not include any copy of a pre-need notification letter
sent to any customer. (Testimony of Kim Scully).
7.
At all times relevant to the above-listed matters, Derek Wallace
was a licensed funeral director licensed by the Board, License No. 6438
7
and the Hart-Wallace Funeral Home, Inc. was a licensed funeral
establishment. (Exhibits 5, 6, 24, 26 and 29 and Testimony of Derek
Wallace).
8.
From on or about December of 1995 to at least 2002, Derek A.
Wallace was the president, treasurer, clerk and director of Wallace
Enterprises, Inc., a corporation organized in December of 1995 to operate
the Hart-Wallace Funeral Home located at 107 S. Broadway Street in
Lawrence, Massachusetts and the Oceanside Funeral Home located in
Salisbury, Massachusetts. (Exhibits 9 and 10 and Testimony of Derek
Wallace).
9.
From on or about 1996 to the present, Derek A. Wallace was the
owner and chief operating officer of the Hart-Wallace Funeral Home.
(Exhibits 9-13, 24, 26, and 29; Testimony of Linda Stokes and Testimony
of Derek Wallace).
10.
Derek Wallace also owns and operates the Professional Mortuary
Association (“PMA”), an affiliate of the Hart-Wallace Funeral Home.
(Testimony of Derek Wallace).
11.
Prior to the above-listed complaints, Derek Wallace had two prior
complaints with the Board, Docket No. EM-97-003 for illegal advertising
and Docket No. EM-01-023 for Breach of Contract. (Exhibit 40;
Testimony of Kim Scully and Testimony of Derek Wallace)
12.
The complaint in Docket No. EM-97-003 was dismissed with a
warning to refrain from illegal advertising in 1997. The complaint in
Docket No. EM-01-023 was dismissed after forgiveness of $900 debt
owed by the consumer to Mr. Wallace. (Testimony of Kim Scully;
Testimony of Derek Wallace and Exhibit 40)
13.
On or about December 9, 1999 and March 23, 2000, the state of
New Hampshire issued to Derek A. Wallace a license to operate a
crematorium under the name of Bayview Crematory for the purpose of
providing cremation services. (Exhibits 2,4, 14 and 15 and Testimony of
Derek Wallace).
8
14.
Bayview Crematorium was and is located on property at 204 New
Zealand Road in Seabrook, New Hampshire. (Testimony of Linda Stokes,
Exhibits 14-20).
15.
Derek Wallace owned and operated the Bayview Crematorium from
1999 until at least September of 2002. (Exhibits 2,4, 14, 15 and 24 and
Testimony of Linda Stokes; Testimony of Derek Wallace).
16.
During the period of time that Derek A. Wallace owned and
operated the Bayview Crematorium, he was also a funeral director in the
State of Massachusetts and owned and operated the Hart-Wallace
Funeral Home in Lawrence, Massachusetts. (Exhibits 2, 4, 5, 6, 10 and
24 and Testimony of Derek Wallace).
17.
On or about September of 2002, Derek Wallace sold his ownership
interest in the Bayview Crematorium to his mother, Linda Stokes, for $1.
(Testimony of Linda Stokes and Testimony of Derek Wallace and Exhibit
38).
18.
Until July of 2003, Derek Wallace was the business owner of
record of the Bayview Crematorium. (Testimony of Linda Stokes;
Testimony of Derek Wallace and Exhibits 14, 15 and 22).
19.
Subsequent to the sale of the crematorium to his mother, Derek
Wallace continued to be engaged in the business of the Bayview
Crematorium by soliciting business and advertising for the crematorium
and by listing the telephone number of the Hart-Wallace Funeral Home
as one of the contact numbers for the Bayview Crematorium. (Exhibits
45, 50, and 51 and Testimony of Garry Burke and John Bresnahan).
20.
On or about March 17, 2003, Garry Burke of Burke Funeral Home
received a solicitation from Bayview Crematorium which stated that the
cremation services were offered by management staff at Bayview
Crematory in conjunction with the contracted services of Professional
Mortuary Assistance. (Testimony of Garry Burke and Exhibit 45).
9
21.
One of the telephone numbers listed on the flyer received by Garry
Burke, 978-682-6273 is the telephone number of the Hart-Wallace
Funeral Home. (Exhibits 45 and 51 and testimony of John Bresnahan).
22.
Derek Wallace admitted that he violated Board regulations at 239
CMR 3.13(1) by being registered with the Board, holding an ownership
interest or being employed by a funeral establishment licensed by the
Board and by engaging in or holding any ownership interest in a
crematorium. (Exhibits 2, 4, and 24; and Testimony of Derek Wallace).
23.
Linda Stokes, Derek Wallace’s mother, and his stepfather,
Lawrence Stokes are the trustees and beneficiaries of the Dekes Realty
Trust, a trust that owns the land at 204 New Zealand Road in Seabrook,
New Hampshire where Bayview Crematorium is located. (Testimony of
Linda Stokes)
24.
At one time, Derek Wallace was the beneficiary of the Dekes Realty
Trust and at an undisclosed date, the beneficiaries were changed to
Linda and Lawrence Stokes. (Testimony of Linda Stokes and Testimony
of Derek Wallace, Exhibit 21)
25.
In or about 2002 and 2003, Derek Wallace and Hart-Wallace
Funeral Home directly or indirectly referred business to Bayview
Crematorium, a business related to the disposition of human remains
that is owned by Respondent’s mother. (Exhibits 45, 50 and testimony of
Linda Stokes).
26.
In or about September of 2003, an employee of Hart-Wallace
Funeral Home, James Fuller, worked as the Superintendent of Bayview
Crematory. (Exhibit 62 and Testimony of Derek Wallace).
27.
Hart-Wallace Funeral Home has employed or used the services of
Bayview Crematorium to perform cremations for its customers.
(Testimony of Linda Stokes).
28.
Witness Robert Biggins was qualified to testify as an expert in the
area of accepted standards of practice in the funeral industry in
Massachusetts and the rules and regulations governing the practice of a
10
funeral director in Massachusetts. (This witness was qualified as an
expert regarding all of the above listed matters.)
29.
Mr. Biggins has worked as a funeral director in Massachusetts for
the past 24 years and has been a member and officer of various industry
organizations including the Massachusetts Funeral Directors Association
and the National Funeral Directors Association. Mr. Biggins has
consulted with the Federal Trade Commission and has given numerous
talks on funeral industry regulations and standards. (Testimony of
Robert Biggins).
30.
Mr. Biggins reviewed the complaints filed in each of the above-
referenced actions on several occasions. (Testimony of Robert Biggins).
31.
A funeral director in Massachusetts may not own or operate a
Crematorium in New Hampshire at the same time that he is licensed as a
funeral director in Massachusetts. The operation of a crematorium in
New Hampshire by a Massachusetts licensed funeral director constituted
a violation of accepted standards of practice in the funeral industry in
Massachusetts from 2000 to 2002. (Testimony of Robert Biggins).
32.
The action of a funeral director in Massachusetts soliciting
business for a crematorium owned by one of his relatives constituted a
violation of accepted standards of practice in the funeral industry in
Massachusetts in March of 2003. (Testimony of Robert Biggins).
In or about May of 2001, Derek Wallace in his capacity as the owner of
Hart-Wallace Funeral Home was contacted by Mildred Ruiz to make
funeral arrangements for her father, Samuel Rios. (Testimony of Mildred
Ruiz, Testimony of Derek Wallace and Exhibits 25, 25A and 26).
33.
Derek Wallace and Hart-Wallace Funeral Home provided and
completed funeral services for Samuel Rios. (Testimony of Mildred Ruiz,
Testimony of Derek Wallace and Exhibits 25, 25A and 26)
34.
In the course of providing funeral services for Mildred Ruiz’s father,
Derek Wallace and Hart-Wallace Funeral Home failed to provide to
Mildred Ruiz a general price list for her to retain. (Testimony of Mildred
11
Ruiz, Exhibit 25 and 25A); failed to provide Mildred Ruiz with a casket or
outer burial container price list. (Testimony of Mildred Ruiz, Exhibits 25
and 25A);
35.
Ms. Ruiz never received the typewritten Statement of Funeral
Goods and Services provided by Mr. Wallace to the Board with his
response dated January 30, 2002. (Testimony of Mildred Ruiz, Exhibits
25A and 26).
36.
The typed Statement of Funeral Goods and Services provided by
Mr. Wallace to the Board with his response dated January 30, 2002 is
not signed by Mr. Wallace or by Ms. Ruiz. (Exhibit 26; Testimony of
Derek Wallace).
37.
The yellow copy of a Statement of Funeral Goods and Services
provided by Mr. Wallace to the Board with his response dated January
30, 2002 includes check marks instead of prices for several items and
includes the statement “estimate” written on the top. Mildred Ruiz did
not receive this document. (Testimony of Mildred Ruiz, Exhibits 25A and
26).
38.
Derek Wallace and Hart-Wallace Funeral Home charged Ms. Ruiz
$165.00 for an obituary in the local paper for her father. (Testimony of
Mildred Ruiz and Derek Wallace and Exhibits 25A and 26).
39.
The obituary was a free service provided by the local paper. Mr.
Wallace acknowledged this overcharge after he had been informed of the
complaint by the Board. (Testimony of Mildred Ruiz, Testimony of Derek
Wallace and Exhibits 25 and 26). Mr. Wallace reimbursed Ms. Ruiz for
the overcharge eight months after the completion of the funeral and after
he had been notified by the Board. (Exhibit 26 and Testimony of Derek
Wallace).
40.
The Federal Trade Commission Funeral Rule (“FTC Funeral Rule”)
and Massachusetts regulations governing the funeral industry require
that a funeral director provide a consumer with a written General Price
12
List for the consumer to retain at the beginning of any discussion of
funeral goods or services. (Testimony of Robert Biggins).
41.
Failure to provide a consumer with a written General Price List for
the consumer to retain at the beginning of any discussion of funeral
goods or services constituted a violation of accepted standards of practice
in the funeral industry in Massachusetts in 2001 and a violation of the
FTC Funeral Rule and Board regulations. (Testimony of Robert Biggins).
42.
In addition to the General Price List, the FTC Funeral Rule and
Board regulations require that a funeral director also provide the
consumer with a casket and/or outer burial price list. (Testimony of
Robert Biggins).
43.
The failure of a funeral director to provide the consumer with a
casket and/or outer burial price list constituted a violation of accepted
standards of practice in the funeral industry in Massachusetts in 2001
and a violation of the FTC Funeral Rule and Board regulations.
(Testimony of Robert Biggins).
44.
In addition to the General Price List and a casket/outer burial
price list, the FTC Funeral Rule and Board regulations also require that
the funeral director provide the consumer with a written itemized
statement of funeral goods and services at the completion of the services.
(Testimony of Robert Biggins).
45.
The statement of funeral goods and services entered into evidence
as Exhibit 25A does not conform to accepted standards of practice in the
funeral industry in Massachusetts in 2001 and does not conform to the
requirements of the FTC Funeral Rule or Board regulations because it
includes check marks instead of required itemized prices. (Testimony of
Robert Biggins).
46.
The statement of funeral goods and services entered into evidence
as Exhibit 25A does not conform to accepted standards of practice in the
funeral industry in Massachusetts in 2001 and violates Massachusetts
law governing the funeral industry because it is not signed by the funeral
13
director and the person making the arrangements. (Testimony of Robert
Biggins).
47.
The typewritten statement of funeral goods and services attached
to Exhibit 26 does not conform to accepted standards of practice in the
funeral industry in Massachusetts in 2001 and violates Massachusetts
laws regarding the funeral profession because it is not signed by the
funeral director and the person making the arrangements. (Testimony of
Robert Biggins).
48.
Charging a fee for an obituary which is a free service or providing a
cash advance without returning the money to the consumer within one
month of the funeral violated accepted standards of practice in the
funeral industry in Massachusetts in 2001 and constituted an unfair or
deceptive business practice. (Testimony of Robert Biggins).
49.
On October 11, 2001, Derek Wallace was asked by the Lawrence
Police Department to transfer the body of Rosa Rios to the Medical
Examiner’s Office in Boston because her’s had been an unattended
death. (Testimony of Derek Wallace)
50.
However, Mildred Ruiz intervened and the Medical Examiner’s
Office relinquished jurisdiction over the body. (Testimony of Derek
Wallace).
51.
On or about October 11, 2001, Derek Wallace and Hart-Wallace
Funeral Home retrieved the body of Mildred Ruiz’s mother, Rosa Rios
who passed away on that date. (Testimony of Mildred Ruiz and
Testimony of Derek Wallace, Exhibits 27-30 and 63).
52.
On or about October 11, 2001, Mildred Ruiz and family
commenced funeral arrangements for Rosa Rios with the Hart- Wallace
Funeral Home. (Testimony of Mildred Ruiz, Exhibits 27-30 and 63)
53.
At or about 7 p.m. on October 11, 2001, Mildred Ruiz and her
brother met with Derek Wallace at the Hart Wallace Funeral Home for
about one hour and forty-five minutes to discuss funeral arrangements.
The parties agreed to meet the next morning to conclude arrangements.
14
(Testimony of Mildred Ruiz, Testimony of Derek Wallace and Exhibits 2730 and 63).
54.
On or about October 11, 2001, Hart-Wallace was “able and
prepared to provide a private service and viewing at their facility.”
(Exhibit 29).
55.
By this date, Derek Wallace had started the embalming and
preparation for burial of the body. (Testimony of Derek Wallace).
56.
Derek Wallace testified that as of the morning of October 12, he
had only a “verbal” from the Ruiz family, that final funeral arrangements
had not been made. (Testimony of Derek Wallace).
57.
Work beyond body preparation cannot be conducted unless a
funeral director has completed final funeral arrangements with the
deceased’s family. (Testimony of Derek Wallace, testimony of Robert
Biggins).
58.
On or about October 12, 2001, Mildred Ruiz purchased a casket
from Casket Royale, a New Hampshire company because she could not
find the casket she wanted at the Hart-Wallace Funeral Home.
(Testimony of Mildred Ruiz, Testimony of Alex Ghersi, Testimony of Garry
Burke, Exhibits 27-30)
59.
On or about October 12, 2001, Derek Wallace learned that Mildred
Ruiz had purchased a casket from Casket Royale. (Testimony of Mildred
Ruiz, Testimony of Alex Ghersi, Testimony of Derek Wallace, Exhibits 2729 and 63).
60.
Prior to informing Ms. Ruiz that the Hart-Wallace Funeral Home
would not be able to provide her mother’s funeral services, Ms. Ruiz and
the Hart-Wallace Funeral Home had already completed arrangements for
a funeral mass, visiting hours, and other services. (Testimony of Mildred
Ruiz, Testimony of Garry Burke, Testimony of Alex Ghersi, Exhibits 2728, 30 and 44).
15
61.
The Register Book for the visitation hours for the Rosa Rios funeral
had already been printed and completed. (Testimony of Mildred Ruiz,
Exhibits 30 and 44)
62.
At no time during the course of discussions about the funeral
arrangements for Rosa Rios did Mr. Wallace mention to Mildred Ruiz that
he was “too busy” to perform the funeral services for Rosa Rios.
(Testimony of Mildred Ruiz)
63.
On or about October 12, 2001, Mildred Ruiz retained the services
of Garry Burke and the Burke Funeral Home in order to provide funeral
services for her mother. (Testimony of Mildred Ruiz, Testimony of Garry
Burke, Testimony of Alex Ghersi, Exhibits 27-30).
64.
On or about October 12, 2001, Mr. Burke called Mr. Wallace in
order to make arrangements for the transfer of the body of Rosa Rios to
the Burke Funeral Home. At that time, he asked Derek Wallace what the
balance due for the work he had performed was and asked what form of
payment he wanted. Derek Wallace said a cashier’s check for $1, 710.00.
(Testimony of Derek Wallace, Exhibit 43)
65.
On or about October 13, 2001, Mr. Burke arrived at the Hart-
Wallace Funeral Home with a certified cashier’s check for $1, 710.00.
Upon receiving the check, Mr. Wallace released the body. (Testimony of
Garry Burke, Exhibits 27-28 and 43)
66.
After receiving the certified check, Mr. Wallace gave Mr. Burke a
copy of the Itemized Statement of Funeral Goods and Services and other
paperwork and items. (Testimony of Garry Burke, Exhibit 30)
67.
During the discussions concerning her mother’s funeral, Derek
Wallace and Hart-Wallace Funeral Home failed to provide Mildred Ruiz
with a general price list for her to retain. (Testimony of Mildred Ruiz)
68.
During the discussions concerning her mother’s funeral, Derek
Wallace and Hart-Wallace Funeral Home failed to provide Mildred Ruiz
with a casket price list or an outer burial price list. (Testimony of Mildred
Ruiz)
16
69.
The Statement of Goods and Services Provided to Ms. Ruiz by the
Hart-Wallace Funeral Home is not signed by Mr. Wallace or by Ms. Ruiz.
(Exhibits 29 and 30)
70.
The Statement of Funeral Goods and Services provided to Ms. Ruiz
itemizes charges for embalming, the printing of a register book, transfer
to the funeral home and “basic services of funeral director and staff”
amounting to a total of $1,710. (Exhibit 30 and Testimony of Derek
Wallace)
71.
The charge for embalming was $395. The charge for transfer of the
body was $295 and the charge for the Register Book was $25. The charge
for “basic services of funeral director and staff” were $1,595 minus a
$600 discount for a total of $995. (Exhibit 30 and Testimony of Derek
Wallace)
72.
The statement fails to itemize the nature of the $600 discount.
(Exhibit 30 and Testimony of Derek Wallace)
73.
The “basic services of funeral director and staff” provided by Derek
Wallace consisted of sheltering of the remains, liability insurance
overhead and personal protection equipment used for embalming.
(Testimony of Derek Wallace).
74.
The price that Derek Wallace charges through PMA for a ship-out
is $399. (Testimony of Derek Wallace). A ship-out consists of embalming,
transfer of body, preparation of documents and delivery to the airport.
(Testimony of Derek Wallace).
75.
In its advertisement in the National Yellow Book, PMA has the
same telephone number as Hart-Wallace Funeral Home. (Testimony of
Derek Wallace).
76.
Ms. Ruiz was very distressed and disturbed by her interaction with
the Hart-Wallace Funeral Home at a very difficult time in her life.
(Testimony of Mildred Ruiz)
77.
Derek Wallace stated in his response to the Board that “public
calling hours were not available on Monday due to other client
17
obligations” and that that they “could not handle the public funeral as
requested due to limited main room space.” (Exhibits 29 and 63). The
Monday after October 12, 2001, would have been October 15, 2001.
78.
The Hart-Wallace Funeral Home has at least two chapels that can
be used for calling hours. (Testimony of Derek Wallace, Exhibit 11).
79.
An obituary search in the Lawrence Tribune, the Boston Herald
and the Boston Globe for the period from October 4, 2001 to October 16,
2001 reveals that there were no obituaries that listed the Hart-Wallace
Funeral Home in Lawrence, Massachusetts for public calling hours or for
any other purpose. (Testimony of John Bresnahan, Exhibits 47-49).
80.
It is customary for funerals or calling hours that take place at a
funeral home in the Lawrence area to be published in the Lawrence
Tribune, the Boston Globe or Boston Herald. (Testimony of Garry Burke).
81.
The amount of cremation services and transport services provided
by a funeral home would have no impact on the availability of the main
room for calling hours or visitation services. (Testimony of Garry Burke
and Testimony of Robert Biggins).
82.
Derek Wallace makes about $400 to $800 in profits on the sale of a
casket. (Testimony of Derek Wallace).
83.
Failure to provide a consumer with a General Price List and a
casket/outer burial price list violated accepted standards of practice in
the funeral industry in Massachusetts in 2001 and also violated the FTC
Funeral Rule and Board regulations.
84.
The statement of funeral goods and services entered into evidence
as Exhibit 30 failed to conform to accepted standards of practice in the
funeral industry in Massachusetts in 2001 and violates Massachusetts
laws governing the funeral profession because it is not signed by the
funeral director and the person making the arrangements. (Testimony of
Robert Biggins).
85.
It is accepted knowledge in the funeral industry that a funeral
director in Massachusetts is responsible for all acts or omissions of any
18
employee and may be disciplined for any acts or omissions. (Testimony of
Robert Biggins).
86.
On or about 1990, Cynthia Goumas received the power of attorney
to act for her mother, Patricia Poole. (Testimony of Cynthia Goumas and
Exhibit 41)
87.
Ms. Goumas, as the power of attorney for Patricia Poole, received
all her mail and opened it. (Testimony of Cynthia Goumas and Exhibit
41)
88.
In or about 1990, with the power of attorney, Cynthia Goumas
entered into a pre-need contract with John J. Hart Jr. Funeral Home
Inc./ Hart-McLennan Funeral Home for funeral services for her mother,
Patricia Poole. (Testimony of Cynthia Goumas and Testimony of Derek
Wallace and Exhibits 2, 4, 31 – 34)
89.
As part of the pre-need contract, Cynthia Goumas pre-paid about
$4,375 which she believed to be a pre-paid and guaranteed contract for
services. (Testimony of Cynthia Goumas and Exhibits 31-34).
90.
On or about September of 1995, Derek Wallace purchased the
John J. Hart Jr. Funeral Home, Inc./Hart-McLennan Funeral Home and
assumed all assets and liabilities, including the pre-need contracts.
(Exhibits 2, 4, 11-13; Exhibit 13, page 5 and Exhibit D and Testimony of
Derek Wallace)
91.
On or about December 28, 2002, Patricia Poole died and her
daughters contacted Derek Wallace for the pre-paid funeral
arrangements. (Testimony of Cynthia Goumas, Exhibit 31)
92.
Until Ms. Goumas contacted Mr. Wallace for funeral arrangements
for her mother she was not aware that the Hart-McLennan Funeral Home
had changed ownership. (Testimony of Cynthia Goumas)
93.
Neither Ms. Goumas nor Ms. Poole ever received notice of the
change in ownership of the Hart-McLennan Funeral Home from Mr.
McLennan to Mr. Wallace. (Testimony of Cynthia Goumas).
19
94.
From 1990 to 2002, neither Ms. Goumas nor Ms. Poole ever
received annual reports of income earned on the pre-need account
established with Hart-McLennan Funeral Home. (Testimony of Cynthia
Goumas)
95.
Derek Wallace and Hart-Wallace Funeral Home failed to provide
Ms. Goumas or Ms. Poole with notification of the change in ownership of
the funeral home. (Testimony of Cynthia Goumas)
96.
Derek Wallace and Hart-Wallace Funeral Home failed to provide
Ms. Goumas or Ms. Poole with an annual accounting of interest earned
on the pre-need account. (Testimony of Cynthia Goumas and Testimony
of Derek Wallace)
97.
Ms. Goumas never received an accounting of the full amount in the
pre-need account and never knew how much money was in the account
in December of 2002 when her mother passed away. (Testimony of
Cynthia Goumas and Testimony of Derek Wallace)
98.
At the time of funeral arrangements on or about December 28,
2002, Cynthia Goumas and family met with Derek Wallace at the HartWallace Funeral Home. Despite the fact that the family believed that
services were paid in full, Derek Wallace informed the family that they
owed an additional $1,200 to $1,400. However, Derek Wallace failed to
disclose the total amount that had accumulated in the account since
1990. (Testimony of Cynthia Goumas and Testimony of Derek Wallace
and Exhibits 31 and 42)
99.
After about one and one-half hours of discussions about the cost of
the funeral, Derek Wallace led the family to the casket room and told
them that the casket they had ordered, Aurora Blue, 18 gauge, was not
available and that he had substituted it with another one of the same
quality. (Testimony of Cynthia Goumas and Testimony of Derek Wallace,
Exhibit 31)
100. After leaving the casket room and while walking out the door,
Derek Wallace handed Ms. Goumas a general price list and a Federal
20
Trade Commission (“FTC”) Disclosure Form. (Testimony of Cynthia
Goumas and Exhibit 35)
101. The family decided to terminate the services of the Hart-Wallace
Funeral Home and retain the services of the Burke Funeral Home for
their mother’s funeral. (Testimony of Cynthia Goumas)
102. On or about December 29, 2002, Derek Wallace transferred the
body of Patricia Poole to the Burke Funeral Home with the casket and
embalming services that had been provided. (Testimony of Cynthia
Goumas, Testimony of Garry Burke)
103. The casket provided by Derek Wallace which he represented to be
of the “same quality” as the Aurora 18 gauge was not of the same quality.
The casket provided was a 20-gauge casket instead of an 18-gauge
casket. (Testimony of Garry Burke, Testimony of Derek Wallace and
Exhibit 31)
104. Derek Wallace sent a certified bank check to Cynthia Goumas
dated December 31, 2002 in the amount of $5,549.12 as the balance in
the pre-need account. However, Derek Wallace failed to send an
accounting of the interest earned and the total amount accumulated in
the pre-need account over the past twelve years. (Testimony of Cynthia
Goumas, Testimony of Derek Wallace and Exhibit 36).
105. The refund of $5,549.12 was dated December 31, 2002. The
original pre-need contract was entered into in 1990. (Admitted to by
Derek Wallace in his Answer, Exhibits 2 and 4). Therefore, even if the
pre-need contract were entered into in December of 1990, the time period
from December of 1990 to December of 2002, (date when the consumer
received the refund), equals a total of twelve years and not eleven years
and six months. (Exhibits 1-4, 34, 36 and 41).
106. Derek Wallace and Hart-Wallace Funeral Home failed to provide
Cynthia Goumas with an Itemized Statement of Funeral Goods and
Services for the services that he had provided prior to transferring the
21
body of Patricia Poole to the Burke Funeral Home. (Testimony of Cynthia
Goumas).
107. A funeral director’s failure to send a written notice of change in
ownership in a funeral home to a pre-need customer violated accepted
standards of practice in the funeral industry in Massachusetts from
1996 to 2002 and constituted a violation of the Board’s pre-need
regulations. (Testimony of Robert Biggins).
108. A funeral director’s failure to send written annual statements of
earnings on a pre-need account to the beneficiaries of the account
violated accepted standards of practice in the funeral industry in
Massachusetts from 1996 to 2002 and constituted a violation of the
Board’s pre-need regulations. (Testimony of Robert Biggins).
109. The action of a funeral director providing a consumer with a
General Price List as the consumer is walking out the door violated
accepted standards of practice in the funeral industry in 2002 and
violated the FTC Funeral Rule regarding the timing of a General Price
List.
110. The action of a funeral director in failing to provide a consumer
with an accounting of the amount accumulated in a pre-need account
and requiring that the consumer pay more money for the funeral violated
accepted standards of practice in the funeral industry in Massachusetts
in 2002, constituted an unfair or deceptive business practice, and was
unfair to the consumer. (Testimony of Robert Biggins).
111. The action of a funeral director in sending a family a check for the
total amount in a pre-need account without sending an accounting of the
interest earned on the account over time violated accepted standards of
practice in the funeral industry in Massachusetts in 2002 and
constituted unprofessional conduct in the funeral profession. (Testimony
of Robert Biggins).
112. The action of a funeral director representing that he substituted a
casket ordered by the family with one of similar or the same quality when
22
the substituted casket is of an inferior quality violated accepted
standards of practice in the funeral industry in Massachusetts in 2002,
was unfair to the consumer, and constituted unprofessional conduct in
the funeral profession. (Testimony of Robert Biggins).
Conclusions of Law
Conclusions as to all matters:
1. Based on Finding of Fact 2, the Board has jurisdiction to hear the
disciplinary matter involving Respondents and their licenses to operate a
funeral establishment.
2. Based on Finding of Fact 2, Respondents have received notice of this
disciplinary proceeding and the charges against their licenses.
EM-02-026
1. Based on Findings of Fact 1, 3, 4, 5, 13, 15, 18, 19, 20, 21 and 22,
the Respondent Derek Wallace violated 239 CMR 3.13 (1) by holding an
ownership interest in or being employed by a funeral establishment
licensed by the Board and engaging in or holding an ownership interest
in the business of a crematorium.
2. Based on Findings of Fact 1, 3, 4, 5, 13, 15, 18, 19, 20, 21 and 22,
Respondents Derek Wallace and the Hart-Wallace Funeral Home violated
239 CMR 3.13 (6) by referring any person to a business or service related
to the disposition of human remains that is owned, operated or
controlled by one or more of his relatives.
3. Based on Findings of Fact1, 3, 4, 5, 13, 15, 18, 19, 20, 21 and 22, the
Respondents’ conduct constitutes unprofessional conduct in violation of
M.G.L. c. 112, § 84.
4. Based on Findings of Fact1, 3, 4, 5, 13, 15, 18, 19, 20, 21 and 22, the
Respondents’ conduct constitutes malpractice, deceit or gross
misconduct in violation of M.G.L. c. 112, § 61.
23
EM-02-016
5. Based on Finding of Fact 35, the Respondents have violated 239 CMR
3.13 (12) (a) by failing to give a general price list to the consumer.
6. Based on Finding of Fact 35, the Respondents have violated the FTC
Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b)(4) by failing to provide the
consumer with a printed or typewritten general price list to take with her.
7. Based on Finding of Fact 35, the Respondents have violated the FTC
Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b) (2) and (3) by failing to
provide the consumer with a written price list of caskets and/or outer
burial containers.
8. Based on Finding of Fact 36, the Respondents have violated the FTC
Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b)(5) by failing to provide the
consumer with a written Itemized Statement of Funeral Goods and
Services in the manner required by the Rule (an itemized list of goods
and services with prices for each item).
9. Based on Findings of Fact 35-38, the Respondents have violated
M.G.L. c. 112, § 84B by failing to give or cause to be given to the person
making funeral arrangements, at the time such arrangements are
completed or prior to the time of rendering the service, a written itemized
statement showing to the extent then known the prices of merchandise
and service selected.
10.
Based on Finding of Fact 37, the Respondents have violated MG.L.
c. 112, § 84B by failing to ensure that the written Itemized Statement of
Funeral Goods and Services was signed by the funeral director and the
person making such arrangements.
11.
Based on Findings of Fact 41, 42 and 43, the Respondents have
violated 239 CMR 3.14 (a) by failing to provide the consumer with a
proper written Itemized Statement of Funeral Goods and Services.
12.
Based on Findings of Fact 39 and 40, the Respondents have
violated 239 CMR 3.13 (9) by engaging in an unfair or deceptive business
practice and by inducing any person to spend more money on funeral
24
arrangements than is commensurate with her means by charging the
consumer for a free obituary.
13.
Based on Findings of Fact 39 and 40, the Respondents have
violated 239 CMR 3.13 (19) by failing to be fair with present or
prospective customers with respect to reasonableness of price
(overcharge for free obituary).
14.
Based on Findings of Fact 35-43, the Respondents’ conduct
constitutes unprofessional conduct in violation of M.G.L. c. 112, § 84.
15.
Based on Findings of Fact 35-43, The Respondents’ conduct
constitutes malpractice, deceit or gross misconduct in violation of M.G.L.
c. 112, § 61.
EM-02-011 and EM-02-014
16.
Based on Findings of Fact 35-42, the Respondents’ actions in
failing to provide a general price list, failing to obtain signatures to an
Itemized Statement of Funeral Goods and Services, and overcharging for
services provided constitute unfair or deceptive business practices or
knowing attempts to induce any person to spend more money on funeral
arrangements than is commensurate with the means of the person in
violation of 239 CMR 3.13 (9).
17.
Based on Findings of Fact 39 and 40, the Respondents have
violated 239 CMR 3.13 (19) by failing to be fair with present or
prospective customers with respect to reasonableness of price.
18.
Based on Finding of Fact 35, the Respondents have violated 239
CMR 3.13 (12) by failing to provide a general price list to the consumer.
19.
Based on Findings of Fact 41-45, the Respondents have violated
the FTC Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b)(4) by failing to
provide the consumer with a printed or typewritten general price list to
take with her.
20.
Based on Findings of Fact 41-45, the Respondents have violated
the FTC Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b) (2) and (3) by failing
25
to provide the consumer with a written price list of caskets and/or outer
burial containers.
21.
Based on Finding of Fact 37, the Respondents have violated M.G.L.
c. 112, § 84B by failing to ensure that each copy of the Itemized
Statement of Funeral Goods and Services was signed by the funeral
director and the person making the arrangements.
22.
Based on Findings of Fact 35-45, the Respondents’ conduct
constitutes unprofessional conduct and misrepresentation in violation of
M.G.L. c. 112, § 84.
23.
Based on Findings of Fact 35-45, the Respondents’ conduct
constitutes malpractice, deceit or gross misconduct in violation of M.G.L.
c. 112, § 61.
EM-03-179
24.
Based on Findings of Fact 89- 98, the Respondents’ conduct
violates 239 CMR 4.06 (6) (d) for failing to send written notice of any
change of ownership of the funeral establishment to a pre-need customer
not later than ten days after the effective date of the transfer or sale.
25.
Based on Findings of Fact 89-98, the Respondents’ conduct
violates 239 CMR 4.06 (11) (d) for failing to send an annual statement of
earnings of the pre-need trust to Cynthia Goumas acting as power of
attorney for her mother, Patricia Poole.
26.
Based on Findings of Fact 99-104, the Respondents’ conduct
violates 239 CMR 3.13 (9) for engaging in an unfair or deceptive business
practice, misrepresenting merchandise in any manner, and knowingly
attempting to induce consumers to spend more money on funeral
arrangements than is commensurate with their means.
27.
Based on Findings of Fact 104, the Respondents’ conduct violates
239 CMR 3.13 (19) for failing to be fair with present or prospective
customers with respect to quality of merchandise and for
misrepresenting a material fact with respect to the merchandise.
26
28.
Based on Findings of Fact 101 and 108, the Respondents have
violated 239 CMR 3.13 (12) and the Funeral Rule, 16 CFR Ch. 1, Part
453.2 (b)(4) (I) (A) by failing to provide the consumer with a printed or
typewritten general price list to take with her at the beginning of the
discussion of funeral goods or services as required by the Funeral Rule.
29.
Based on Finding of Fact 107, the Respondents have violated
M.G.L. c. 112, section 84B, 239 CMR 3.13 (13), 239 CMR 3.13 (14)(a),
239 CMR 4.03 (2) (e) and the Funeral Rule, 16 CFR Ch. 1, Part
453.2(b)(5) by failing to provide the consumer with an Itemized List of
Funeral Goods and Services at the completion of services he had
provided for Patricia Poole.
30.
Based on Finding of Fact 101, the Respondents have violated the
FTC Funeral Rule, 16 CFR Ch. 1, Part 453.2 (b)(4) by failing to provide
the consumer with a printed or typewritten general price list to take with
her.
31.
Based on Findings of Fact 90- 113, the Respondents’ conduct
constitutes misrepresentation and unprofessional conduct in the
profession in violation of M.G.L. c. 112, § 84.
32.
Based on Findings of Fact 90-113, Respondents’ conduct
constitutes malpractice, deceit or gross misconduct in the profession in
violation of M.G.L. c. 112, § 61.
Discussion
Pursuant to M.G.L. c. 112, § 84, the Board may refuse to issue or
to renew, or may suspend or revoke any certificate or license, or may
place the holder of such certificate or license on probation based on any
violation of the rules and regulations of the Board, any violation of
M.G.L. c. 112, §§ 83-87 or for any other reason enumerated in M.G.L. c.
112, § 84. M.G.L. c. 112, § 84(j) specifically states, “ [t]he Board may
refuse to issue or to renew, or may suspend or revoke any certificate, or
27
may place the holder thereof on a term of probation after due public
hearing upon finding the holder of such certificate to be guilty of…
unprofessional conduct, which is hereby defined to include… (j) violation
of any of the provisions of sections eighty-three to eighty-seven, inclusive,
or any rule or rules of the board.” See also M.G.L. c. 112, § 84A (Board
has jurisdiction to impose discipline upon the certificate or license of any
person or establishment for violating any statutes, rules or regulations
governing the practice of a funeral home or funeral director).
The Board’s regulations at 239 CMR 3.13 (25) state that a
“[v]iolation of any provision of 239 CMR 3.14, or any other provision of
239 CMR 3.00 through 239 CMR 5.00, any provision of M.G.L. c. 112, §§
82 through 87, or any other state or federal law or regulation pertaining
to the profession or business of embalming or funeral directing, by any
person registered with the Board shall be grounds for disciplinary action
by the Board.” Therefore, a violation of the Federal Trade Commission
(“FTC”) Funeral Rule, a federal regulation pertaining to the profession or
business of embalming or funeral directing, is grounds for disciplinary
action by the Board.
Pursuant to M.G.L. c. 112, § 84, any violation of the Board’s
regulations is considered “unprofessional conduct” in violation of the
statute. Therefore, a finding that the Respondents have violated any
Board regulation, including the regulation concerning violations of
federal law or regulations, also supports a finding that the Respondents
have engaged in unprofessional conduct in violation of M.G.L. c. 112, §
84.
The Board’s regulations defining the Code of Conduct and
Professional Ethics at 239 CMR 3.13 are applicable to any person
registered by the Board or who holds an ownership interest in or is
employed by any funeral establishment licensed by the Board. See 239
CMR 3.13. “Person” is defined as “an individual; a corporation; a
partnership; a limited liability company or foreign limited liability
28
company as defined in M.G.L. c. 156C, §1; a registered limited liability
partnership or foreign registered limited liability partnership as defined
in M.G.L. c. 108A, § 1; a society; an association; an organization; or any
other business entity, however named.” 239 CMR 3.01.
Therefore, the Board has the jurisdiction to discipline the license of
the Respondent Derek Wallace and the funeral establishment certificate
of the Hart-Wallace Funeral Home.
The Board’s regulations also state that a funeral director who
serves as the chief executive officer or chief operating officer of any
funeral establishment licensed by the Board shall “be responsible for any
and all acts and omissions of any person who holds an interest in, or is
employed by, that funeral establishment, and may be disciplined by the
Board for any such acts or omissions which constitute violations of 239
CMR 3.00 through 5.00, M.G.L. c. 112 §§ 82 through 87, or any other
state or federal law or regulation pertaining to the profession or business
of embalming and funeral directing.” 239 CMR 3.13 (26). Therefore,
Derek Wallace as the funeral director serving as the chief executive
officer of the Hart-Wallace Funeral Home is liable for any acts or
omissions of any of his employees. (See Exhibits 9-13).
Furthermore, the Board may take disciplinary action against the
funeral establishment certificate of any establishment licensed by the
Board for “any acts or omissions of any person who holds an ownership
interest in, or is employed by, that funeral establishment if such acts or
omissions constitute violations of 239 CMR 3.00 through 5.00, M.G.L. c.
112 §§ 82 through 87, or any other state or federal law or regulation
pertaining to the profession or business of embalming and funeral
directing.” 239 CMR 3.13 (27). Therefore, the Board may discipline the
Hart-Wallace Funeral Home and take action against its establishment
certificate based on Mr. Wallace’s actions.
29
EM-02-026 Ownership of the Bayview Crematorium
The Board’s regulation at 239 CMR 3.13(1) states that “no person
who is registered with the Board, nor any person who holds an
ownership interest in or is employed by any funeral establishment
licensed by the Board, shall engage in, or hold any ownership interest in,
any other business which is related to the disposition of human remains,
including but not limited to any cemetery; crematorium; retail or
wholesale casket, urn or vault sales or rental enterprise; monument sales
enterprise; or other similar business.” (Emphasis added). This
regulation is part of the Board’s Code of Conduct and Professional
Ethics. A violation of the Board’s Code of Conduct and Professional
Ethics constitutes deceit, gross misconduct and unprofessional conduct
in violation of M.G.L. c. 112, §§ 61 and 84.
The regulation clearly prohibits any funeral director in
Massachusetts from holding any ownership interest in or engaging in any
crematorium business. The evidence before the Board clearly
demonstrates that Derek Wallace held an ownership interest in the
crematorium until September of 2002 and that after that date he
continued to engage in the business in violation of Board regulations.
Although Derek Wallace wrote to the Board in August of 2002
stating that he was no longer involved in the business as of April 2002,
the transfer of ownership bill of sale shows that he transferred his
interest to Linda Stokes, his mother, in September of 2002. Furthermore,
the solicitation sent out by Bayview Crematorium in March 2003 shows
that he continued to operate and engage in the business subsequent to
that date. The 978 telephone number listed on the solicitation is a
telephone number listed to the Hart-Wallace Funeral Home. Therefore,
Derek Wallace and Hart-Wallace Funeral Home were directly advertising
and soliciting business for Bayview Crematorium. As such, Derek
Wallace and Hart-Wallace Funeral Home continued to be engaged in the
business of the Crematorium. Furthermore, the business records for
30
Bayview Crematorium on file in New Hampshire indicated that Derek
Wallace was the business owner of Bayview Crematorium until at least
July of 2003. In addition, Derek Wallace testified that James Fuller is
employed by Hart-Wallace Funeral Home and works as the
Superintendent for Bayview Crematory and did so in September of 2003,
after Derek Wallace purportedly divested all interest in Bayview
Crematory. Also, the testimony of Linda Stokes is not credible that she
was the true business owner of Bayview Crematory. Ms. Stokes did not
know who the customers were nor did she have any clear information on
suppliers or revenue. Furthermore, Ms. Stokes testified that there were
only two employees at Bayview, she and her husband. However, Derek
Wallace’s own testimony lead to the conclusion that there were other
persons working at Bayview Crematory and further erodes Ms. Stokes
credibility.
Accordingly, Derek Wallace and Hart-Wallace Funeral Home
continued to violate the Board regulation by continuing to engage in the
business of a crematorium by soliciting for Bayview and by employing an
individual to serve as a superintendent of the crematorium.
Board Regulations at 239 CMR 3.13(6) also state that any person
registered by the Board shall not, either directly or indirectly, “refer any
person to, or employ any business or service related to the disposition of
human remains if that business or service is owned, operated or
controlled by one or more of his or her relatives. For purposes of 239
CMR 3.13(6), a relative is a person’s spouse, parent, grandparent, stepparent, child, grandchild, step-child, brother, sister, half-brother, halfsister, son-in-law, daughter-in-law, father-in-law, mother-in-law,
brother-in-law, sister-in-law, niece, nephew, aunt or uncle.”
The record shows that the Bayview Crematorium is owned by
Derek Wallace’s mother and stepfather and that Derek Wallace referred
business to Bayview Crematory, a business owned by his mother and
father-in-law, Linda and Larry Stokes in violation of the above-referenced
31
Board regulation. Linda Stokes herself testified that the crematorium
provided crematory services for the Hart-Wallace Funeral Home. The
Board can only conclude that Derek Wallace and Hart-Wallace Funeral
Home solicited business for Bayview Crematorium. Furthermore, the
evidence shows that Derek Wallace and Hart-Wallace Funeral Home
employed the superintendent of the Bayview Crematory and other
employees, including Kevin Brown, who performed cremations and
transports at Bayview Crematory.
The Supreme Judicial Court has upheld a funeral rule similar to
the regulations listed above as constitutional in Blue Hills Cemetery, Inc.
v. Bd. of Registration in Embalming and Funeral Directing, 379 Mass.
368 (1979). In that case, the Court ruled on the validity of M.G.L. c. 112,
§ 87, which states, in part, that no funeral director or embalmer shall act
or be employed as a caretaker or supervisor at a cemetery. In Blue Hills
Cemetery, the statute was held constitutional because it is within a
state's police powers to protect the "personal quality" of funeral services
by limiting the expansion of such a business. Id. at 373. The expansion
and operation of funeral related services are not fundamental rights and
are only subject to rational basis judicial scrutiny. Id.
The Board's regulations which prohibit any person holding
ownership in a licensed funeral establishment from holding ownership or
engaging in any other business related to the disposition of human
remains and from referring business to any such entity that is owned or
operated by a family member are parallel to the statute addressed in
Blue Hills Cemetery. The Board, similar to the Legislature, can protect
the quality of funeral services by restricting a licensee from owning or
engaging in any other funeral related service and from referring business
to a crematorium owned or operated by family members. Blue Hills
Cemetery, Inc, 379 Mass. 368. The Board has the duty to uphold the
integrity of the profession and protect the public from unscrupulous
practices in the funeral industry.
32
EM-02-016 Failure to provide a general price list and to abide by the
Funeral Rule
The Board’s Code of Conduct and Professional Ethics requires at
239 CMR 3.13(12)(a) that “[n]o person who is registered with the Board,
nor any person who holds an ownership interest in or is employed by any
funeral establishment licensed by the Board, shall: (a) fail or refuse to
give a general price list containing all information required by 16 CFR
Part 453 to any person who requests one in person.”
The Federal Trade Commission Funeral Industry Practices Rule, 16
CFR Ch. 1, Part 453 (“Funeral Rule”) requires every funeral provider to
furnish accurate price information disclosing the cost to the purchaser
for each specific funeral good and service used, including at least the
price of embalming, transportation of remains, use of facilities, caskets,
outer burial containers, immediate burials, or direct cremations. Section
453.2. The Funeral Rule specifically requires that a printed or
typewritten general price list must be given to a consumer for the
consumer to take with him or her. Section 453.2(b)(4).
The general price list must be given to the consumer beginning with
the discussion of funeral goods or services. Section 453.2(b)(4)(i)(A). The
general price list must contain the following:
(1) The name, address, and telephone number of the funeral provider’s
place of business;
(2) A caption describing the list as a “general price list”; and
(3) The effective date for the price list. Section 453.2(b)(4)(i)(C).
The general price list must also include the retail prices for: 1.
Forwarding remains to another funeral home; 2. Receiving remains from
another funeral home; 3. Price range for direct cremations; 4. Price range
for immediate burial; 5. Transfer of remains to funeral home; 6.
Embalming; 7. Other preparation of body; 8. Use of facilities and staff for
viewing; 9. Use of facilities and staff for memorial service; 10. Use of
33
equipment and staff for graveside service; 11. Hearse; and 12. Limousine
offered. Section 453.2(b)(4)(ii).
Moreover, the Funeral Rule also requires that the general price list
contain a price range for caskets or outer burial containers offered by the
funeral provider with a statement that a price list will be provided at the
funeral home or that the general price list include the prices of individual
caskets or outer burial containers. Section 453.2 (b)(4)(iii) (A) and (B).
The Funeral Rule also requires that the general price list contain the
price for the basic services of the funeral director and staff. Section
453.2(b)(4)(iii)(C).
The Funeral Rule also requires that the funeral provider give a written
price list of caskets and/or outer burial containers to any person
inquiring about the price of caskets or outer burial containers. Section
453.2(b) (2) and (3).
In addition to a general price list, the Funeral Rule also requires that
the funeral provider give a written itemized Statement of Funeral Goods
and Services Selected to each consumer for his/her retention. The
funeral provider must furnish this statement at the conclusion of the
discussion of arrangements. Section 453.2(b)(5). The Statement of
Funeral Goods and Services must contain an itemized list of the goods
and services selected with prices for each item, specifically itemized cash
advance items, and the total cost of the goods and services selected. Id.
Board Regulation 239 CMR 3.13(13) states that “[n]o person who is
registered with the Board as a funeral director… shall fail or refuse to
give an itemized written statement of funeral costs to any person making
funeral arrangements or arranging for the shipment, transportation or
other disposition of a deceased person, in accordance with the
requirements of M.G.L. c. 112, § 84B.”
M.G.L. c.112, § 84B specifically requires every licensed funeral
director, his agent or servant, to “give or cause to be given to the person
making funeral arrangements…, at the time such arrangements are
34
completed or prior to the time of rendering the service, a written itemized
statement showing to the extent then known the price of merchandise
and service that such person making suck arrangements has selected;
the price of supplemental items of service and merchandise if any…” The
statute also requires that “[e]ach copy of such itemized statement shall
be signed by the funeral director and the person making such
arrangements.”
The Board’s regulations also specifically require, at 239 CMR 3.14
(a) that, “[a] licensed funeral establishment, and/or its agents or
employees, shall give, or cause to given to the person or persons making
funeral arrangements, or otherwise arranging for shipment,
transportation or other disposition of a deceased person, at the time
such arrangements are completed or prior to the time of rendering the
service, including the selected merchandise, a written statement showing
to the extent then known: (a) The price of the merchandise and service
that the person or persons making such arrangements have selected and
what basically is included therein.” (emphasis added).
In a prior decision, In Re George Williams, EM-98-008, EM-98-015,
EM-98-021 (1999), the Board found that a funeral director’s failure to
provide accurate price lists constitutes behavior which “exploits
vulnerable families seeking the services of the funeral directing
profession” and is “the type of conduct that reflects either a gross lack of
expertise in the profession or an inexcusable lapse in ethical judgment.”
In May of 2001, Mildred Ruiz engaged the services of Derek
Wallace and the Hart-Wallace Funeral Home for her father’s funeral. The
evidence shows that Derek Wallace and Hart-Wallace failed to provide
Ms. Ruiz with a general price list as required by the Funeral Rule and
Board regulations. The Respondents also failed to provide Ms. Ruiz with
a casket or outer burial container price list as required by the Funeral
Rule.
35
The Respondents provided Ms. Ruiz with a Statement of Funeral
Goods and Services that included check marks for certain items and did
not include itemized prices for all items as required by the Funeral Rule
and Board regulations. Expert testimony showed that the Statement of
Funeral Goods and Services provided to Ms. Ruiz deviated from accepted
standards of practice in the funeral industry in 2001. The check marks
instead of itemized prices violate the requirements of the Funeral Rule at
453.2(b)(5) and Board rules and regulations at M.G.L. c. 112, §84B, 239
CMR 3.13 (13) and 239 CMR 3.14(a).
Respondent testified that he provided Ms. Ruiz with the
typewritten Itemized Statement attached to his response to the Board
dated January 30, 2002 which has typed prices. However, it is not
credible that Mr. Wallace gave Ms. Ruiz the typed form. Ms. Ruiz testified
that the only Statement of Funeral Goods and Services that she received
was the one with check marks and that she received no other. The typed
statement is not signed by Ms. Ruiz. The Respondent violated Board
rules by failing to sign and have the consumer sign a Statement of
Funeral Goods and Services as required by M.G.L. c. 112, section 84B.
Expert testimony established that an unsigned Statement of Funeral
Goods and Services violated accepted standards of practice in the funeral
industry in 2001.
Respondents’ actions in charging Mildred Ruiz for a free obituary
service provided by the local paper also amount to unfairness and
misrepresentation in violation of Board regulations at 239 CMR 3.13 (9)
and (19). Respondent did not attempt to reimburse Ms. Ruiz until he was
notified by the Board of the complaint eight months after the completion
of the funeral. Expert testimony established that charging for a free
service or failing to return a cash advance within one month after the
funeral constitutes a violation of accepted standards of practice in the
funeral industry in Massachusetts.
36
EM-02-001 AND EM-02-014
Testimony demonstrates that in October of 2001, Ms. Ruiz began
funeral arrangements with Derek Wallace and Hart-Wallace Funeral
Home for her mother’s funeral and that after completing the embalming
and some arrangements including the publication of the Register Book,
Derek Wallace told Ms. Ruiz that he would not be able to conclude the
arrangements for her mother, Rosa Rios. The Board is confronted with a
variety of testimony as to why the Respondent was unable to complete
the funeral arrangements.
Ms. Ruiz testified credibly that the Respondent refused to complete
the arrangements because she had bought a casket from a source other
than the Hart-Wallace funeral home. The proprietor of Casket Royale,
from which she purchase the casket, also testified that it was his
understanding that Respondent would not hold the funeral because Ms.
Ruiz had purchased a casket from him. Ms. Ruiz testified that in a
phone call, the Respondent, when she informed him that she had
purchased the casket, said “that’s how I make my living.” Ms. Ruiz, and
later Alex Ghersi, testified that Respondent refused to make the
arrangements for that reason. Derek Wallace testified that he told her he
could not accept the casket because under the law he could not accept it
because funeral arrangements had not been complete. When pressed by
Ms. Ruiz to accept the casket, he replied I can’t “that’s how I make my
living.”
The Board is struck by the inconsistencies in Respondent’s
testimony on this issue. Respondent contends that he did not refuse to
complete the funeral because of the casket purchase, but because he
was “too busy” to provide the funeral services. However, Respondent has
given conflicting testimony on this point. On one hand, he stated in his
response to the Board in November 2001 that “public calling hours were
not available on Monday due to other client obligations” and that they
“could not handle the public funeral as requested due to limited main
37
room space.” In his testimony at the hearing, he contended that he
could not accept the casket because funeral arrangements were not
complete.
The Board first considers the truth of his position that he was too
busy to hold the funeral at the times desired by Ms. Ruiz. The Monday
in question was October 15, 2001. Evidence showed that an obituary
search in the four major newspapers that would be used by a funeral
home located in Lawrence, Massachusetts revealed that there were no
obituaries that listed the Hart-Wallace Funeral home for public calling
hours or any other purpose from October 4, 2001 to October 16, 2001.
Derek Wallace testified that the Hart-Wallace Funeral Home had at least
two chapels that could have been used for calling hours.
Thus, it is not credible that Respondent could not accommodate
the Rios funeral due to “main room space.” Respondent has not pointed
to any funeral that required calling hours or the use of main room space
on October 15, 2001. Furthermore, Respondent failed to provide a copy
of the Register Book or other details to substantiate that the main room
was not available for calling hours on October 15, 2001.
In his Answer to the Order, the Respondent told a different story,
omitted the statements about calling hours and main room space, and
stated instead that he, “individually, had approximately 16 other
transports, deliveries and embalmings to do within 72 hours of the
proposed date of RR’s funeral.”
It is significant that the only “proof” submitted by Mr. Wallace of
his inability to accommodate the Rios funeral was five incomplete death
certificates which contradict his story. In his answer and his testimony,
Mr. Wallace indicates that he handled about sixteen embalmings and
transports, however, he failed to provide any proof of these engagements
and submitted death certificates of only five “clients”.
Furthermore, Respondent has not shown how transports,
cremations or embalming work would have interfered with the
38
availability of “main room space” for calling hours on October 15, 2001.
But expert testimony showed that the amount of cremation services and
transport or delivery services provided by a funeral home would have no
impact on the availability of the main room for calling hours.
Respondent stated that on October 11, 2001, he had every
intention of providing funeral services to Mildred Ruiz. In his statement
to the Board in November of 2001, he stated that “Hart-Wallace was able
and prepared to provide a private service and viewing at their facility.”
Mr. Wallace did not communicate to Mildred Ruiz on October 11, 2001 at
7 p.m. that there existed a possibility that Hart-Wallace would not be
able to complete the funeral arrangements because of other obligations.
The next afternoon is the first time that Derek Wallace communicated
the fact that he would not be able to complete the funeral arrangements
for Rosa Rios.
Respondent’s testimony that the reason for not accepting the
casket was that he had not entered into a final contract or final
arrangements with Mildred Ruiz is puzzling because he has stated that
he would have completed arrangements and had every intention of
completing arrangements except that he was 1.) too busy and the main
room space was not available; or 2.) too busy with cremations,
embalmings and other transports. Furthermore, Respondent
contradicts himself by acknowledging that he did provide Ms. Ruiz with
services and charged her $1,710 for those services.
Derek Wallace testified that he explained to Ms. Ruiz that he could
not continue with funeral arrangements unless she came in to complete
the arrangements and he indicated that she declined to complete funeral
arrangements and decided not to use the Hart-Wallace Funeral Home.
However, this statement is contradicted by his response to the Board in
November of 2001 where Mr. Wallace states that, “[a]t some point later
on Friday [October 12, 2001], Ms. Ruiz called back and requested
services which included public calling hours on Monday with a
39
traditional funeral to follow on Tuesday morning.”
Therefore, Ms. Ruiz
was willing to make arrangements and continue with the funeral on
October 12, 2001 and decided to use an alternative only when Derek
Wallace informed her he would not provide the funeral because he was
too busy. Derek Wallace admitted that he failed to provide Ms. Ruiz with
any alternative options. He did not refer her to another funeral home, nor
did he suggest an alternate date for arrangements. The Board can only
conclude that his reason for refusing to complete the funeral
arrangements was because Ms. Ruiz had purchased the casket from
Casket Royale
In or about October of 2001, after Derek Wallace had refused to
complete the funeral arrangements for Ms. Ruiz’s mother, Ms. Ruiz
engaged the services of the Burke Funeral Home. The Prosecution put on
evidence to show that on or about October 12, 2001, Mr. Burke called
Mr. Wallace in order to arrange for the transfer of the body of Rosa Rios
to his funeral home. Burke testified that Derek Wallace told him that he
would not release the body until he received a cashier’s check for
$1,710.00 and that he refused to accept a personal check or a check
from the Burke Funeral Home. The Board does not find it credible that
Derek Wallace refused to release the body until he was paid.
Nevertheless, the record shows that again Derek Wallace has given
inconsistent testimony. At the hearing, Derek Wallace denied that he
refused to release the body until he was paid and stated that he simply
informed Mr. Burke that a certified check would be acceptable when Mr.
Burke asked him if he wanted a bank check or a certified check.
However, this statement is contradicted by his response to the Board in
November 2001, where he states that he told Mr. Burke that there was a
balance of $1, 710, “and pursuant to the normal business practices of
Hart-Wallace Funeral Home requested that the payment be made by way
of confirmed funds.” He did not state in his November 2001 response
that Mr. Burke asked him the question and he merely responded that a
40
certified check was fine. Again, Mr. Wallace contradicts statements he
made in 2001.
In the course of discussions concerning her mother’s funeral,
Derek Wallace and the Hart-Wallace Funeral Home failed to provide
Mildred Ruiz with a general price list or a casket or outer burial price list
in violation of the FTC Funeral Rule, 16 CFR Ch. 1, Part 453, Section
4.53.2 (b) (2), (3) and (4) and Board Regulation 239 CMR 3.13 (12). The
Itemized Statement of Funeral Goods and Services provided to Mildred
Ruiz for her mother Rosa Rios also violates M.G.L. c. 112, § 84B.
General Laws chapter 112, section 84B specifically requires that “[e]ach
copy of such itemized statement shall be signed by the funeral director
and the person making such arrangements.” The itemized statement of
Funeral Goods and Services for Rosa Rios was not signed by Derek
Wallace or by the family member making the arrangements. Expert
testimony established that failure to sign the Itemized Statement of
Funeral Goods and Services deviates from accepted standards of practice
in the funeral industry. Therefore, Derek Wallace and Hart-Wallace
Funeral Home have violated this statute governing the practice of a
funeral director in Massachusetts.
EM-03-179 Failure to comply with pre-needs requirements
Cynthia Goumas, as the power of attorney for her mother, Patricia
Poole, entered into a pre-need contract with Hart-McLennan Funeral
Home in or about 1990 for funeral arrangements for her mother. Ms.
Goumas paid $4,375.00 for what she understood was a contract that
guaranteed the price of a funeral upon the death of the beneficiary. On or
about September of 1995, Derek Wallace purchased the Hart-McLennan
Funeral Home and assumed all assets and liabilities, including pre-need
contracts. In the Purchase and Sale Agreement, Derek Wallace
specifically assumed the services of all existing pre-need accounts and
agreed to comply with Board rules and regulations governing pre-need
accounts.
41
The record is clear that Derek Wallace never informed Ms. Goumas
or her mother of the change in ownership of the funeral home and that
Ms. Goumas only learned of the change in ownership when her mother
die and she went to the Hart- Wallace Funeral Home to make
arrangements.
By failing to inform Ms. Goumas of the change in ownership, Derek
Wallace violated the Board’s regulation at 239 CMR 4.06 (6) (d) governing
pre-need contracts which states that “[a] licensed funeral establishment
shall send written notice of any transfer of ownership of the funeral
establishment, or sale of any of its assets, to the buyer (and beneficiary,
if different) of every pre-need funeral contract to which it is a party, via
certified mail, return receipt requested, not later than ten days after the
effective date of said transfer or sale.”
Derek Wallace testified that he did send a notification to Ms.
Goumas and that he filed a copy with the Board when he applied for an
Establishment Certificate for the Hart-Wallace Funeral Home in
December of 1996. However, this testimony is contradicted by the
testimony of Cynthia Goumas who stated that neither she nor her
mother ever received such notice. His testimony is also contradicted by
Board Keeper of Records Kim Scully who testified that the documents
filed by Mr. Wallace in support of his application of an Establishment
Certificate for the Hart-Wallace Funeral Home did not include any copy
of a pre-need notification sent to consumers. Despite the lack of a copy of
pre-need notification, the Board nevertheless issued an establishment
certificate to Mr. Wallace as there is no direct requirement in the
regulations that such notices must be filed with the Board.
Furthermore, the rule requires that the notification must be sent to
the consumer within 10 days of the change in ownership. The change in
ownership took place in September of 1995. Mr. Wallace did not file an
application for Establishment Certificate with the Board until December
of 1996, 15 months after his purchase of the Hart-McLennan Funeral
42
home. Therefore, Mr. Wallace was required to send the notice to the
consumer prior to the application with the Board.
Mr. Wallace’s testimony on this matter is not credible. It is
contradicted by the testimony of Cynthia Goumas, the testimony of Kim
Scully and Board records. The testimony of Cynthia Goumas and Kim
Scully are credible.
The pre-need regulations also require that a funeral director send
an annual accounting to the consumer of the earnings in the pre-need
account. Board Regulation 239 CMR 4.06(11)(d) states that “…a licensed
funeral establishment which serves as trustee of any funeral trust
established under 239 CMR 4.00, shall send an annual statement of the
earnings of the trust to the named beneficiary of said trust, unless the
beneficiary requests in writing that said statements not be sent.”
The record demonstrates that Respondents failed to provide Ms.
Poole or Ms. Goumas with annual reports of income earned on the preneed account. In fact, Ms. Goumas never received an accounting of the
income earned on the account and never knew how much money had
accumulated in the account in the twelve years preceding her mother’s
death.
Derek Wallace admitted that he did not provide Ms. Goumas with
an accounting of the amount accumulated in the pre-need account
annually nor did he provide such accounting at the time of making
funeral arrangements in December of 2002. Mr. Wallace also admitted
that he did not provide an accounting of the amount accumulated in the
pre-need account when he sent Ms. Goumas a check for the balance of
$5, 549.12 as the total in the pre-need account. Mr. Wallace admitted
that interest had accrued on the account, but stated that he could not
remember exactly how much and how it was calculated. Furthermore,
Mr. Wallace failed to bring an accounting of the interest earned on the
account to the hearing. Mr. Wallace failed to present any proof that the
43
full amount in the account with accumulated interest from 1990 to 2002
was actually $5,549.12 rather than a higher figure or amount.
By failing to provide the annual accountings to the consumer, the
Respondents violated the Board’s pre-need regulations at 239 CMR
4.06(11) (6). The Respondents also violated Board regulation 239 CMR
3.13 (9) for engaging in an unfair or deceptive business practice by failing
to provide an accounting of the interest accumulated on the account over
twelve years to the consumer at any time. It is fundamentally unfair to
the consumer that she never received an accounting of the total amount
accumulated in the account over twelve years. Although the consumer
received a check for about $5,500 in 2002, she had no way of knowing if
this amount was the true total of all principal and interest accumulated
in the pre-need account from 1990 to 2002 or if the amount is actually
much greater. The consumer has no way of knowing if she received the
proper refund or not.
Respondents’ conduct in failing to provide an accounting also
constitutes gross misconduct pursuant to M.G.L. c. 112, § 61. See 239
CMR 4.09 (“Violation of any provision of this chapter shall be considered
a violation of M.G.L. c. 112, § 84A (j), and may also be considered “gross
misconduct in the practice of the profession” within the meaning of
M.G.L. c. 112, § 61, and shall constitute grounds for disciplinary action
by the Board.”).
In or about 1995, when Derek Wallace assumed ownership of the
Hart-McLennan pre-need contracts, he had a duty to comply with all
Board regulations governing pre-need contracts. Board Regulation 239
CMR 4.10 (20 states, “[w]ith respect to any pre-need funeral contracts or
funeral trusts established prior to July 1, 1992: (a) All such pre-need
funeral contracts and funeral trusts shall be in compliance with the
record-keeping requirements of 239 CMR 4.06 (11) no later than June
30, 1993. (b) All other requirements of 239 CMR 4.00 shall apply to all
such pre-need funeral contracts and funeral trusts as of July 1, 1992.”
44
The Board’s pre-need regulations became effective in 1993. By 1996, the
regulations had been in effect for several years and if Mr. Wallace had a
question as to their applicability, he had every opportunity to submit a
request for an advisory ruling with the Board. See 239 CMR 3.15.
Furthermore, expert testimony established that it was an accepted
standard of practice in the funeral industry from 1996 to 2002 to provide
consumers with annual accounting of interest earned in pre-need
accounts.
In or about December of 2002, Patricia Poole died and Ms.
Goumas and family members met with Derek Wallace at the HartWallace Funeral Home to make arrangements for their mother’s funeral.
Although the family members believed the contract was paid in full,
Derek Wallace informed the family that they owed an additional $1,200
to $1,400. Although Derek Wallace failed to disclose to the family the
total income accumulated in the pre-need account since 1990, he
nevertheless demanded that they pay the additional amounts. After
about one and one-half hours of discussion, Derek Wallace led the family
to the casket room and told them that the casket they had ordered,
Aurora Blue, 18 gauge, was not available and that he had substituted it
with another of the same quality. After leaving the casket room and while
she was walking out the door of the funeral home, Derek Wallace handed
Ms. Goumas a general price list and a FTC disclosure form.
The Respondents’ actions in attempting to induce Cynthia Goumas
and her family to pay more money is a violation of 239 CMR 3.13 (9) for
engaging in unfair or deceptive business practices and knowingly
attempting to induce consumers to spend more money on funeral
arrangements than is commensurate with their means. See In Re George
Williams, EM-98-008, EM-98-015, EM-98-021 (1999) (Respondent’s
actions in attempting to change terms of pre-need contract in order to
induce consumer to pay more money and misrepresenting availability of
45
casket ordered by consumer constitute Board violations and gross
misconduct in violation of M.G.L. c. 112, §61).
Derek Wallace failed to provide Cynthia Goumas with a general
price list at the beginning of the discussion of funeral goods and services
as required by 239 CMR 3.13(12)(a) and the FTC Funeral Rule, 16 CFR
Ch. 1, Part 452. 2 (b)(4). The Funeral Rule specifically requires that the
consumer be provided with the general price list at the beginning of any
discussion of services. The Rule also requires a general price list to be
given to all pre-need customers. Derek Wallace provided the general price
list to Ms. Goumas at the end of a one and one-half hour discussion as
she was walking out the door. As expert testimony showed, this action
violates accepted standards of practice in the funeral industry and
constitutes a violation of the FTC Funeral Rule and Board regulations.
Derek Wallace also failed to provide Cynthia Goumas with an
itemized list of funeral goods and services as required by M.G.L. c. 112,
section 84B, 239 CMR 3.13 (13), 239 CMR 3.13(14)(a) and the FTC
Funeral Rule, 16 CFR Ch. 1, Part 453.2(b)(5). See 239 CMR 4.03(2)(e)
and 239 CMR 4.03(3)(b). See also In Re George Williams, EM-98-008,
EM-98-015, EM-98-021 (1999).
The Respondents’ actions in failing to notify Ms. Goumas of the
change in ownership in the funeral home, failing to provide an annual
accounting of the income earned in the pre-need account, inducing the
consumer to spend more money without disclosing the total amount
accumulated in the pre-need account, failing to provide the consumer
with the general price list at the correct time as required by the FTC
Funeral Rule, failing to provide the consumer with an Itemized Statement
of Funeral Goods and Services and misrepresenting the quality of the
casket constitute violations of M.G.L. c. 112, § 61 and 84 for
unprofessional conduct, gross misconduct, malpractice, deceit, and
misrepresentation or fraud in the conduct of the profession.
46
In an attempt to bolster his credibility, Respondent presented
testimony by Hank Farmer as to his reputation and character. However,
Mr. Farmer’s qualifications to testify as to Mr. Wallace’s character are
minimal. He testified that his opinion is based on a mere 6 or 7 meetings
with Derek Wallace. Furthermore, Mr. Farmer has a bias to help Derek
Wallace because of potential future business dealings. Mr. Farmer
testified that he discussed a future business scheme with Mr. Wallace
whereby he would be a part owner of a funeral home in Salisbury with
Mr. Wallace. Furthermore, as a current customer of Bayview
Crematorium, Mr. Farmer would have an interest in preserving the
business relationship by helping Derek Wallace. The Board finds that
with his financial interests at stake, Mr. Farmer is unlikely to provide a
fully unbiased and independent assessment of Derek Wallace.
Summary of the evidence
The Board has no doubt that Respondent’s conduct in owning the
crematorium at the same time he was a licensed funeral director in
Massachusetts and had an ownership interest in a funeral establishment
is a flagrant violation of the Board’s rules and regulations and subjects
him to discipline by the Board. Ignorance of the law is no defense to this
wrongdoing. The number of misrepresentations by Derek Wallace in
connection with this dual ownership is staggering: the date of transfer of
ownership; failure to change the New Hampshire business records; the
advertisement for Bayview Crematorium which states it has a polite and
conscientious staff when his mother’s testimony said there was no staff;
the phone number for Hart-Wallace Funeral home appearing as that for
Bayview Crematorium; his mother’s vague testimony to how the
crematorium operated. Respondent’s violation renders him guilty of
unprofessional conduct (M.G.L. c. 112 §84). His continued engagement
in the business of the crematorium is a further violation of Board rules
and regulations subjecting him to discipline by the Board.
47
The evidence clearly demonstrates that in addition to the serious
violations discussed above, Respondent also violated Board rules and
regulations by failing to give a consumer the price list required by 239
CMR 313 (12)(a) and the Funeral Rule. The record also shows that
Respondent violated the Funeral Rule by conditioning the furnishing of
funeral services upon the purchase of a casket and further violated
Board regulations at 239 CMR 3.13(19) for failing to be fair with a
customer with respect to freedom of choice regarding the casket.
The evidence also clearly shows that Respondent, in violation of
Board rules and regulations, did not provide written notice to the family
of Patricia Poole that he had purchased the Hart-McLennan Funeral
Home. The evidence is crystal clear that he did not provide the family
with the annual accounting for the interest in the pre-need account as he
was required by law to do. These two violations alone would certainly
make the Respondent subject to discipline by the Board.
Throughout his testimony, Derek Wallace appeared to deny
responsibility for his actions by stating or implying that he followed his
attorney’s advice on various matters and that he was simply unaware or
ignorant of the law or Board regulations. However, this line of defense is
not credible. No attorneys testified on Mr. Wallace’s behalf. Therefore,
there is no evidence, other than Mr. Wallace’s self-interested statements,
to corroborate that attorneys gave Mr. Wallace advice contrary to Board
rules or regulations.
Alas, ignorance of the law is not an excuse. As a funeral director in
Massachusetts for over a decade, Mr. Wallace was obligated to familiarize
himself with the rules and regulations governing his profession. At any
time, Mr. Wallace could have submitted a request to the Board for an
advisory ruling pursuant to 239 CMR 3.15. However, Mr. Wallace never
requested such an advisory ruling and only now raises the issue of his
ignorance of the law. Unlike criminal laws which require intent or mens
rea in order to prove the violation, the Board’s regulations or statutes
48
nowhere require intent as a pre-requisite for a finding of liability. Instead,
the rules and regulations provide for strict liability for failure to comply
with specific disclosure and reporting requirements. See Board
regulations at 239 CMR 3.00; 239 CMR 4.00 and the Funeral Rule. The
rules require such specific disclosure and information for consumers
because the legislature and the Board have recognized the great need to
protect consumers at a vulnerable juncture in their lives.
As the facts in Docket Nos. EM-02-011, EM-02-014, EM-02-016,
EM-02-026 and EM-03-179 demonstrate, Mr. Wallace has shown a
consistent and persistent disregard for Board rules and regulations.
Even after being informed by the Board of his violation by being engaged
in the Bayview Crematorium, Mr. Wallace created the fiction of
transferring the crematorium to his mother for $1 so that he could
continue to run the business in violation of Board regulations. Mr.
Wallace’s actions also demonstrate his repeated failure to provide
consumers with the proper disclosures and documentation required by
the Funeral Rule and by Board rules and regulations and his repeated
acts of unfairness and deception in his dealings with Mildred Ruiz and
Cynthia Goumas.
Standard of Proof
The petitioner in the present matter has the burden to prove a case
against the Respondent by a preponderance of evidence. See Craven v.
State Ethics Commission, 390 Mass. 191, 200 (1983). If the Board finds
the Prosecuting Counsel’s evidence even slightly more convincing than
that of the Respondent, then it must find against the Respondent.
On the issues of mitigation and sanction, Respondent failed to
present any evidence that would alleviate the Board’s deep concern over
the gravity of Respondent’s professional misconduct. The Board’s focus
is on the nature of Respondent’s conduct as a licensed funeral director
and the implications of such misconduct for our profession. Such
behavior is not only injurious to those directly affected by it, but also
49
threatens the public’s confidence in the integrity of the funeral directors
and embalmers profession.
Respondent seeks the Board’s leniency on the basis that he has
admitted to a number of the allegations against him, to wit: he admits
that he owned a licensed funeral establishment in Massachusetts and at
the same time owned a crematorium in New Hampshire; he admits that
he did not sign the Statement of Final Goods and Services; he admits
that he overcharged for obituary services; he admits that he failed to
provide a consumer under a pre-needs contract with an annual
accounting; he admits that he attempted to charge more for the services
guaranteed under the pre-needs contract. All of these admissions are to
conduct which is in direct violation of the Board’s rules and regulations.
Respondent claims that he made many “mistakes” which do not
rise to the level of gross misconduct. If there were only one mistake, that
argument might hold water. However, what he terms mistakes were a
litany of violations of the Board's rules and regulations.
At times during the hearings, it appeared that the Respondent did
not take the proceedings seriously. He had to be reprimanded and asked
not to laugh during witness testimony. And, although he filled the
hearing room with many people, only one other person testified for him,
while the Prosecution put on nine witnesses. In assessing the credibility
of that witness and the weight to give his testimony, the Board must
consider the financial incentive the witness had to testify for the
Respondent.
Conclusion
As found above, there is substantial evidence for the Board to
conclude that Respondent’s conduct warrants discipline. The Board has
the authority and statutory mandate to discipline Respondent and to
impose a sanction to protect the public health, safety and welfare. Based
on the Findings of Fact and Conclusions of Law set forth above, the
50
Board concludes that the Respondents’ licenses are subject to discipline
and appropriate sanctions as determined by the Board.
ORDER
Accordingly, based on the Findings of Fact and Conclusions of Law
set forth above, the Board ORDERS that
Respondent's licenses to practice embalming, funeral directing and
to maintain a funeral establishment in the Commonwealth of
Massachusetts, License Number. EM -6438, and Funeral Establishment
Certificate License Number: 1043 are hereby suspended for a period of
five (5) years beginning on the date of this Final Decision and Order
(Suspension Period). During the Suspension Period, Respondent may
not engage in any activities that comprise the practice of embalming
and/or funeral directing as identified in 239 CMR 3.01 or perform
services commonly regarded as part of the practice of embalming and/or
funeral directing in the Commonwealth of Massachusetts. Any evidence
of such practice which comes before the Board shall be the basis for the
referral of any such unlicensed practice to appropriate law enforcement
agencies for prosecution, as set forth in M.G.L.c. 112, sections 65 and
87.
During the first thirty (30) days of the Suspension Period, Respondent
must comply with the following:
1. Respondent must file with the Board:
(a) A list of apprentice embalmers under Respondent's instruction and
personal supervision.
(b) A list of all licensed funeral establishments owned or maintained
the Respondent and registered by the Board.
(c) A list of all certified funeral directors registered by the Board who
are employed at licensed funeral establishments owned and
maintained by the Respondent.
(d) A list all funeral trust accounts established, administered and
received by the Respondent or the Respondent's funeral
establishments in compliance with the requirements of 239 CMR
4.09.
2. Respondent shall send written notice of his suspension to the buyer
(and beneficiary, if different) of each pre-need funeral contract,
administered and received by the Respondent or the Respondent's
funeral establishments, via certified mail, return receipt requested.
Such notice shall inform the buyer (and beneficiary, if different) of
their right to:
51
a. Transfer that pre-need funeral contract and all funds
connected with that contract to another licensed funeral
establishment of their choice, or
b. Cancel that pre-need funeral contract, if it is revocable, and
receive a refund of all funds connected with that contract
pursuant to 239 CMR 4.07(3).
3. Respondent shall file with the Board, a written report setting forth the
following information:
c. The total number of pre-need funeral contracts to which the
Respondent's funeral establishment is a party;
d. The funding method used to finance each pre-need funeral
contract to which the Respondent's licensed funeral
establishment is a party;
e. The names and addresses of all banks, trust companies, and
insurance companies holding any funds received in
connection with any such pre-need funeral contracts and;
f. The final statement of all banks, trust companies, and
insurance companies holding any funds received in
connection with any such pre-need funeral contracts and;
g. The location within the Commonwealth of Massachusetts
where its records pertaining to pre-need funeral contracts
are maintained.
4. Within thirty (30) days after the entry of this order the Respondent
shall file with the Board an affidavit certifying that Respondent has
fully complied with the stated above provisions. Appended to the
affidavit of compliance shall be:
a. A copy of each form of notice, the names and addresses to the
buyer (and beneficiary, if different) of each pre-need funeral
contract to which notices were sent and proper proof of the
distribution of such funds.
5. The Respondent shall retain copies of all notices sent and maintain
complete records of the steps taken to comply with the above
mentioned notice requirements.
If Respondent does not comply with the five (5) terms stated above
within one (1) month, the Respondent must permanently surrender his
licensee to the Board. If Respondent complies with the above listed five
(5)terms, Respondent must serve the remaining four (4) years and eleven
52
(11) months of the Suspension Period. At the end of the Suspension
Period, Respondent must take and pass the state rules and regulations
administered by the Board before he may seek reinstatement. If the
Board should reinstate Respondent, he will serve a period of five (5)
years probation (Probationary Period) with no additional conditions.
This Final Decision and Order becomes effective the date it is
issued. This Final Decision and Order was adopted by Board at its
meeting of August 10, 2004 by the following unanimous vote:
In Favor:
Kathy Cartmell-Sirrico, Ralph A. Barile, Edward Mazur,
Judith McCarthy
Opposed:
None
Absent:
John J. Kazlauskas
Recused:
None
RIGHT TO APPEAL
This is a final decision of the Board, pursuant to M.G.L. c. 112, section
30A. Respondent is hereby notified of his right to appeal this Final Decision
and Order by filing a written petition for judicial review with the Supreme
Judicial Court within thirty days after the entry of this Order, pursuant to
M.G.L. c. 112, section 64 and c. 30A, sections 14 and 15.
Board of Registration of Funeral
Directors and Embalmers
By:___________________________
Kathy Cartmell-Sirrico
Chair
Date:
August 24, 2004
53