Lillis v. Department of Health Services

564 A.2d 646, 41 Conn. Super. Ct. 211, 41 Conn. Supp. 211, 1989 Conn. Super. LEXIS 4
CourtConnecticut Superior Court
DecidedFebruary 14, 1989
DocketFile 322092
StatusPublished
Cited by2 cases

This text of 564 A.2d 646 (Lillis v. Department of Health Services) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lillis v. Department of Health Services, 564 A.2d 646, 41 Conn. Super. Ct. 211, 41 Conn. Supp. 211, 1989 Conn. Super. LEXIS 4 (Colo. Ct. App. 1989).

Opinion

Hammer, J.

The plaintiff, a licensed embalmer who operates a funeral home in New Milford, has taken this appeal, pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., from a decision of the defendant board of examiners of embalmers ánd funeral directors (board) ordering that a letter of reprimand, stating that he was guilty of unprofessional conduct in violation of General Statutes § 20-227 (4), be placed in his file at the defendant department of health services. He claims that the reprimand was, in effect, a finding that he had billed the widow of a deceased for embalming her husband’s body without permission, a violation which had not been charged and of which he had no notice. The plaintiff also argues that there is nothing in the record and that there was no evidence presented to the board that would support a finding that he had embalmed the body without permission, which he claims was a factual conclusion implicit in the wording of the letter of reprimand that was sent to the plaintiff and placed in his file.

In their amended answer, the defendants deny that the board found that the plaintiff had billed the widow *213 of the deceased for the unauthorized embalming of her husband’s remains. The board also denies that it made any findings in its letter of reprimand as alleged in the plaintiff’s appeal to this court.

On January 16, 1986, the plaintiff was given notice by the board, pursuant to General Statutes § 4-177 of the UAPA, that a formal hearing would be held as the result of an investigation of a complaint filed by Ruth M. Alex against the plaintiff concerning the bill that she had received for the funeral expenses of her deceased husband, Theodore Alex. A statement of the specific charges brought by the department of health services was attached to the notice of hearing and alleged that the plaintiff prepared the remains of the deceased for a viewing “in contradiction to the express intent” of Mrs. Alex, and that he billed her “for services which he knew or should have known, were not authorized by [her].” The complaint also requested the board to revoke the plaintiff’s license or to “order other disciplinary action as it deems appropriate and consistent with law in regard to [his] license . . . .”

Mrs. Alex testified at the hearing before the board that, on the morning after her husband’s death, she met with the plaintiff to discuss funeral arrangements. At that time she requested a brief, private viewing of the body at the funeral home by family members, for which she agreed to pay $125.

According to her testimony, the plaintiff called later that day and told her that because of the presence of tissue gas in the body, he did not believe that he could prepare it for viewing. She testified that she then told him: “I knew nothing about these things and I would take him at his word and we would cancel the viewing.” He called her the following day to tell her that he would be able to prepare the body after all, but she *214 told him that she would not change her mind and that the family would not be viewing the body at the funeral home.

The plaintiff’s recollection of his first telephone conversation with Mrs. Alex was that he told her that the body was in a “very bad state” but that he would do everything that he could to prepare the body for viewing. He understood her to say that he should continue his efforts and that the family still wanted to view the body privately if it was possible. The following day the preparations were finally completed, but when the plaintiff called Mrs. Alex to inform her that the body was ready for viewing, she told him that she had changed her mind and that the family would not be coming to the funeral home to view the body.

The plaintiff also testified that if Mrs. Alex had told him that she did not want him to proceed with the preparations, it would have been a “straight embalming” and the additional $125 charge would not have appeared on the bill. He also testified that the separate charge of $195 for “preparation of deceased,” was for the actual embalming, which would have been done in any event if the family authorized it, either verbally or in writing.

The board’s June 14,1986 decision consists of a memorandum of decision summarizing the procedural history of the case, a finding of facts, a discussion and conclusion and an order. The finding of facts states that the plaintiff, “in contradiction to the express intent of decedent’s widow and next of kin Ruth M. Alex, did prepare the remains of decedent Theodore Alex for a viewing [and billed her] for services which he knew or should have known had not been authorized by her.” The board, in its discussion and conclusion, restates the original charges as given in the prehearing notice to *215 the plaintiff and states, as its conclusion, “after reviewing all the evidence that this claim as alleged has been proven.”

The board’s order was made pursuant to General Statutes § 19a-17 and provides: (1) that a letter of reprimand be -written and placed in Lillis’ file at the department of health services; (2) that such letter state Lillis was guilty of unprofessional conduct and that he violated General Statutes § 20-227 (4); and (3) that such letter be considered if Lillis is brought before the board in any further disciplinary matters.

The letter of reprimand states that it was issued pursuant to the foregoing order and as the result of the hearing before the board alleging that the plaintiff had violated § 20-227 (4) by billing Mrs. Alex “for services which you knew or should have known were not authorized.” Thereafter, the following sentence, which the plaintiff asserts is a part of the board’s findings, appears: “So that this does not recur, in the future this board recommends that you obtain permission for embalming previous to performing the service and that all other arrangements be agreed to in writing.”

The board of examiners of embalmers and funeral directors, as a professional licensing board within the department of health services, has the authority, under General Statutes § 19a-17, to issue a letter of reprimand to a licensee “upon finding the existence of good cause” if administrative action short of revocation or suspension is found to be appropriate under the circumstances. General Statutes § 19a-17 (4). Section 20-227 provides that any person aggrieved by “action taken under section 19a-17 may appeal therefrom in accordance with the provisions of section 4-183.”

The question, in such an appeal, is not whether the reviewing court would have reached the same conclusion, but whether the record before the agency supports *216 the action taken. O’Donnell v. Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978). In the process of reaching its decision, the administrative agency must determine the credibility of the witnesses and resolve disputed issues of fact. Jaffe v. Department of Health, 135 Conn. 339, 343, 64 A.2d 330 (1949).

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Cite This Page — Counsel Stack

Bluebook (online)
564 A.2d 646, 41 Conn. Super. Ct. 211, 41 Conn. Supp. 211, 1989 Conn. Super. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lillis-v-department-of-health-services-connsuperct-1989.