NORTH CAROLINA



NORTH CAROLINA BEFORE THE OFFICE OF

WAKE COUNTY ADMINISTRATIVE HEARINGS

00 BMS 1763

N.C. Board of Mortuary Science )

Petitioner, )

)

v. )

) PROPOSAL FOR DECISION

Robert Breece, Jr., )

Osborne Owens and )

Rogers and Breece Funeral Home )

Respondent )

PROCEDURAL HISTORY OF CASE

On November 14, 2000, Petitioner filed a Notice of Hearing in the above captioned matter.

On November 16, 2000, a Scheduling Order was issued setting the date for hearing the matter for the week of March 26, 2001 and requiring discovery to be completed by March 12, 2001.

On December 4, 2000, Petitioner filed its Pre-Hearing Statement; on December 29, 2000, Petitioner filed an amended Pre-Hearing Statement.

On December 13, 2000, Respondents’ Counsel filed his Entry of Appearance.

On December 13, 2000, Respondents’ Counsel filed their Pre-Hearing Statement.

Upon Call of the Matter on March 28, 2001, upon motion of Petitioner the Hearing was continued.

The matter was re-scheduled for Hearing June 4, 2001.

PETITIONERS LIST OF EXHIBITS

1. Rogers & Breece Funeral Home Application for Registration dated December 18, 1998.

2. Osborne H. Owens Application for Renewal of Funeral Service License.

3. Robert W. Breece Jr. Application for Renewal of Funeral Service License.

4. Consumer Complaint of Max A. Clapp dated December 31, 1999.

5. Osborne H. Owens “Answer to Complaint of Max Clapp”.

6. Respondents’ Answer to the First Set of interrogatories and Request for Production of Documents.

7. Copy of Mark John Clapp’s Driver’s License.

8. Copy of Embalming Report of Mark Clapp.

9. Rogers & Breece Casket Price List effective March 1, 1999.

10. Copy of Statement of Funeral Goods and Services selected dated November 23, 1999, between Rogers & Breece and Helen W. Clapp.

11. Copy of Rogers and Breece Brochure with price list for services.

12. Rogers & Breece Statement for Account for Helen Clapp dated December 29, 1999, in the amount of $5,000.

13. Copy of Service of Notice of Hearing upon Respondents.

14. Affidavit of Service of Notice of Hearing upon Respondents.

15. Deposition of Osborne H. Owens, taken March 9, 2001.

RESPONDENT’S EXHIBITS

1. Rogers & Breece Price List, effective March 1999.

2. Federal Trade Commission Disclosure, signed by Helen Clapp.

3. Contract dated November 23, 1999.

4. Revised statement of account dated December 29, 1999.

5. Statement of Robert W. Breece Jr. in response to the complaint filed by Mr. Max Clapp.

6. Statement of Osborne H. Owens in Answer to the Complaint of Mr. Max Clapp.

7. Statement of Rebecca Owens.

8. Statement of Angela Ternullo dated January 13, 2000.

9. Statement of Osborne H. Owens RE: Shoes, taxes.

10. Statement of Angela Ternullo dated February 29, 2000, RE: Death Certificate.

11. Metropolitan Funeral Service Statement.

12. Rogers & Breece check to Metropolitan.

13. Air Shipping Schedule

14. Airway bill.

15. Death Certificate information and arrangement sheet.

16. Embalming report.

17. Obituary form

18. Death Certificate dated December 3, 1999.

19. Investigative Report of Henry S. Rowan.

20. Rowan Interview with Osborne H. Owens.

21. Rowan Interview with Robert Breece.

22. Rowan Memo to File

23. Rowan Additional Information to Report

24. Rowan Interview with Clapp

25. Investigative Report - C. Culbreth

26. Investigative Report - C. Conner

27. Letter: Clapp to Rogers & Breece dated December 27, 1999 (K null - Request for Death Certificates)

28. Letter: Rogers & Breece (Wooten) to Clapp dated December 29, 1999 (Itemize Statement)

29. Letter: Clapp to NCBMS RE: Wooten response dated January 2, 2000.

30. Owens response to removal of shoes, obituary, computation of taxes.

31. Letter: C. Culbreth to Clapp dated February 16, 2000, RE: Response to Complaint by Rogers & Breece, and additional death certificates.

32. Letter: Clapp to Culbreth, RE: Rogers & Breece Response - (a) Rebecca Owens

33. Letter: C. Culbreth to Rogers & Breece dated February 24, 2000, RE: Notice of Formal Complaint, RE: Death Certificates

34. Memo from Owens to C. Culbreth RE: Death Certificate dated March 2, 2000.

35. Statement from Angela Ternullo, dated February 29, 2000, RE: Death Certificates.

36. Memo from Rogers & Breece to Helen Clapp, dated July 20, 2000 requesting payment

37. Letter: Clapp to Culbreth, dated July 24, 2000, RE: Memo by Rogers & Breece to Helen

38. Letter: Robert W. Breece, Sr. to H. Clapp, dated August 24, 2000, demanding payment

39. Letter: Clapp to Robert W. Breece Sr. dated August 25, 2000

40. Letter: Clapp to C. Culbreth, RE: Robert W. Breece, Sr. letter dated August 25, 2000 - “Nasty Gram”

41. Letter to Robert W. Breece, Jr. dated August 26, 2000, RE: Father’s Nasty gram... “See your ass in the witness chair”...

42. Letter: C. Culbreth to Clapp dated August 28, 2000, RE: Interview with Connor

43. Letter: Clapp to C. Culbreth, RE: Interview with Connor. “Thanks for taking complaint away from Rowan”...

45. Deposition of Owens

46. Deposition of Breece

47. Deposition of Helen Clapp

48. Deposition of Max Clapp

49. Letter: Metropolitan to Rogers & Breece, dated March 20, 2001, RE: use of Oversized Shipping container

50. Letter: Metropolitan, dated March 20, 2001, RE: Dimension of Oversized Shipping container

51. Fayetteville Mortuary Service FAX, March 20, 2001, RE: Standard Combination Shipping container

52. Petitioner’s Pre-Hearing Statement

53. Letter of Thanks from Costin Family

STIPULATED FACTS

1. Petitioner has the burden of proof as to whether the Respondents have violated the statutes and regulations as alleged in the Notice of Hearing in this case and the standard of proof is by a preponderance of the evidence.

2. The parties have taken every administrative step necessary to resolve this matter informally.

ADJUDICATED FACTS

1. Respondent Rogers and Breece Funeral Home, Inc., is licensed as a funeral establishment by the Board of Mortuary Science and is subject to Chapter 90, Article 13A of the General Statutes of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

2. Respondent Robert Breece, Jr., is licensed as a funeral director by the Board and is subject to Chapter 90, Article 13B of the General Statutes of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

3. Respondent Osborne H. Owens is licensed as a funeral director by the Board and is subject to Chapter 90, Article 13B of the General Statutes of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

4. On November 23, 1999, Mark Clapp died in Washington D.C. Mr. Max Clapp called the Respondent Funeral Home from Washington D.C. and requested that Respondent Funeral Home make arrangements to have his son’s body shipped to Fayetteville for burial. He informed the Respondent Owens that his wife, Helen Clapp, who was in Fayetteville, would contact the funeral home and make funeral arrangements for her son.

5. Prior to Mrs. Clapp’s arrival at the funeral home to make funeral arrangements, Respondent Owens contacted Metropolitan Funeral Service in Washington D.C. He was informed that Metropolitan would embalm the deceased and ship him in a combo shipping container for a fee of $555.00. He was also informed by Metropolitan that US Air had been contracted, and shipping charges by US Air to Fayetteville, NC would be $265.63.

6. Helen Clapp, together with another son, went to Rogers and Breece on November 23, 1999, and was served by the Respondent Owens. Mrs. Clapp was given a brochure containing a price list of Rogers and Breece’s services, caskets and vaults, prior to her selection of a casket. Mrs. Clapp selected a Batesville Neopolitan 32 oz. Copper Casket at the price of $3,595.00. At the time of the selection, Owens was told by Mrs. Clapp that the deceased was 6 feet 6 inches. Upon this information, Respondent Owens assured Mrs. Clapp the selected casket would accommodate the deceased son. Mrs. Clapp also selected a Wilbert Continental Concrete Vault at the price $1,080.00. Based upon these selections, Respondent Owens prepared and Mrs. Clapp signed a Statement of Goods and Services with Rogers and Breece Funeral Home reflecting the above selections of casket, vault, and the fees of Metropolitan and US Air as indicated. The total contract price was $8,552.33.

7. After Mrs. Clapp left the Funeral Home, on November 23, 1999, Metropolitan called and informed Respondent Owens that (a) due to the deceased’s size they would need to use an oversized combo unit to ship his remains and (b) that US Air had informed them due to the size of the container, it would have to be flown to Raleigh-Durham Airport as they could not ship that size container into Fayetteville due to the limited cargo space on Fayetteville flights and (c) there would be a $60.00 additional charge to Metropolitan for the oversized shipping container. Air shipping charges remained the same. Respondent Owens computed the additional Rogers and Breece charges for retrieving the deceased’s remains from Raleigh-Durham Airport ($264.00) and the additional Metropolitan charges for oversized shipping container ($60.00) to be a total of $324.00. He then called Mrs. Clapp, informed her of the additional charges, and explained why they were necessary. Mrs. Clapp indicated she understood these charges. Owens made these additions on the contract bringing the total to $8,876.33. Mrs. Clapp never signed an amended contract.

8. The body of Mark Clapp was received by Rogers & Breece on November 24, 1999. On November 25, 1999 (Thanksgiving Day), Respondent Owens and a trainee employee of Rogers & Breece, Johnny Needham, began final preparation for placing the deceased in the selected casket. Both Owens and Needham measured the deceased and found him to measure considerably more than six feet six inches (6'6") because his feet had dropped, extending his overall length. According to Needham’s measurement, the deceased was approximately six feet eleven inches (6'11") in length.

9. Owens called the Clapp home on November 25, 1999. He explained his discovery of the overall length of the deceased to Mr. Clapp.

10. Owens was of the opinion that the oversized casket should be used and recommended the use of the same to Mr. Clapp. He also told Mr. Clapp that if an oversized casket was used that an oversized vault would be needed at the additional cost of $400.00. No particular type of oversized casket was recommended by Owens at this time.

11. On the morning of November 25, 1999, the Fayetteville Observer had published the Obituary of Mark Clapp containing errors and deletions of information given to Rogers & Breece by Mrs. Clapp. Both Helen Clapp and Max Clapp were upset about this at the time of Owens telephone call to them.

12. Max Clapp informed Helen Clapp of the content of the Owens telephone call. Helen Clapp became very upset because she had been assured by Owens that the selected casket would be adequate to contain the body of Mark Clapp. Max Clapp also became very angry.

13. In the afternoon of November 25, 1999, Mr. Clapp and his family went to Rogers & Breece Funeral Home and demanded to see a Breece. Mr. Clapp was very angry. Mr. Owens, along with Johnny Needham, attempted to greet them. Max Clapp refused to shake Owens hand, calling Owens a “Son of a Bitch”. At this time, Owens suggested the use of a Steel Oversized Casket. No prices were ever discussed.

14. Both Helen Clapp and Max Clapp rejected the use of a steel casket.

15. Max Clapp insisted his son was only six feet four inches and would fit in the selected casket. Johnny Needham suggested that one of the Clapp sons accompany him to a waiting room where the deceased Mark Clapp was fully dressed and prepared; that the brother observe Needham in measuring the deceased to verify Owens and Needham’s statement as to his length. This angered Max Clapp.

16. Max Clapp became very belligerent toward Owens, addressing him in a threatening manner. Clapp told Owens that he would like to take him out behind the barn and whip his ass.

17. Respondent Robert Breece, Jr. arrived. Breece told the Clapps that a steel gauge casket was of lesser quality than the bronze selected. This again made Max Clapp angry. Breece, at no extra charge, offered to place Mark Clapp in a mahogany casket of a design Breece believed would better accommodate the body. The mahogany casket was more expensive than the selected casket. The Clapps refused this offer and demanded that the originally selected casket be used.

18. The bedding of the original casket was altered and the lining rearranged. The body of Mark Clapp was placed in the originally selected casket and buried therein the next day.

19. Before Max Clapp left the funeral home on Thursday, November 25, 1999, in an effort to placate the Clapps, Robert W. Breece Jr., offered to reduce the total price of the funeral goods and services to $5000.00.

20. On Friday, November 26, 1999, after graveside services for the deceased, Mark Clapp, Max Clapp presented Robert Breece Jr. with a card denoting the total charges would be $5000.00. Respondent Breece signed the card. When Breece tried to further appease Max Clapp with an apology about the casket selection, Max Clapp told Respondent Breece that “He ought to take him behind the woodshed”.

21. As of the date of the Hearing, no sums had been paid upon the $5,000.00 funeral bill.

22. Respondent Owens did not attempt to substitute a casket of a lesser quality against the stated wishes of Helen Clapp or Max Clapp.

23. Respondent Owens did not attempt to substitute a vault of greater price against the stated wishes of Helen Clapp or Max Clapp.

24. Respondent Robert Breece, Jr. did not attempt to substitute a casket of a lesser quality against the stated wishes of Helen Clapp or Max Clapp

25. Respondent Robert Breece, Jr. did not attempt to substitute a vault of greater price against the stated wishes of Helen or Max Clapp.

26. On November 25, 1999, Rogers & Breece did not have an oversized casket of any model or make in inventory. The use of an oversized casket in this instance would have required a special ordering of the same from a manufacturer.

27. Federal Regulation 16 CFR 453.2 does not require the price list of Rogers & Breece to list a casket which would require special ordering.

28. Max Clapp, by his own conduct and actions, at times refused to allow either Owens or Breece to explain or give reasons for their recommendations or actions.

29. Helen Clapp and Max Clapp did not accept the recommendations of Osborne H. Owens or Robert Breece, Jr. for the use of an oversize casket.

30. Helen Clapp and Max Clapp freely made the decision to insist upon the use of the casket and vault originally selected for their son, which were used by Respondents.

CONCLUSIONS OF LAW

1. Respondent Osborne H. Owens is licensed as Funeral Director by this Board and is subject to Chapter 90 of the General Statues of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

2. Respondent Robert Breece, Jr. is licensed as a Funeral Director by this Board and is subject to Chapter 90 of the General Statue of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

3. Respondent Rogers and Breece Funeral Home is licensed as a Funeral Home Establishment by this Board and is subject to Chapter 90 of the General Statues of North Carolina and Title 21, Chapter 34 of the North Carolina Administrative Code.

4. Rogers and Breece Funeral Home can only be guilty of misconduct under the principle of Respondeat Superior.

5. Petitioner has failed to carry its burden of proof in that Petitioner has failed to prove, by the preponderance of the evidence, that any one of the Respondents violated the provisions of N.C. General Statue 90-210.25(e)(1) as alleged in the Notice of Hearing.

6. Petitioner has failed to carry its burden of proof in that Petitioner has failed to prove, by the preponderance of the evidence, that any one of the Respondents violated the provisions of N.C. General Statue 90-210.25(e)(1)j of 16 CFR 453.2 as alleged in the Notice of Hearing.

7. Petitioner failed to carry its burden of proof by failing to prove, by the preponderance of the evidence, that any one of the Respondents violated the provisions of the statues and regulations as alleged and cited in the Notice of Hearing.

PROPOSAL FOR DECISION

The Senior Administrative Law Judge hereby recommends that the Board of Mortuary Science take no administrative action against the Respondents.

NOTICE

The North Carolina Board of Mortuary Science will make the Final Decision in this contested case pursuant to N.C. Gen. Stat. § 150B-42.

Pursuant to N.C. Gen. Stat. § 150B-40(e), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision.

This the 22nd day of August, 2001.

__________________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

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