COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY BOARD OF REGISTRATION
OF FUNERAL DIRECTORS AND EMBALMERS
______
In the Matter of
Derek Wallace Docket Nos. EM-02-011
License No. EM-6438 EM-02-014
Establishment No. 53 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 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.
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
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 Hart-Wallace 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
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
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 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).
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).
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).