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Biggs v. Dept. of Registration & Educ.

OPINION FILED APRIL 10, 1979.

ERNESTINE BIGGS ET AL., PLAINTIFFS-APPELLEES,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This appeal is brought by the Illinois Department of Registration and Education to set aside an order of the circuit court of Cook County which reversed the Department's order to suspend for 30 days the funeral directors licenses of Ernestine Biggs and Eva Janney.

The sole issue on appeal is whether the trial court's finding was against the manifest weight of the evidence.

In August 1976, the Department of Registration and Education (hereinafter the Department) filed a complaint against plaintiffs Ernestine Biggs and Eva Janney, alleging their violation of "An Act in relation to the regulation of persons engaged in the practice of funeral directing * * *" (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 73.10(e), (f), (j), 73.20(f)) (hereinafter cited as the Funeral Directors and Embalmers Act) in permitting an unlicensed employee to act as a funeral director. *fn1

At the administrative hearing, Mrs. Frances Hudson testified that in December 1975, she went to Biggs and Biggs Funeral Home, located in Chicago, accompanied by her daughter and son-in-law to arrange for her son's funeral. They were referred to Dennis Bailey, with whom Mrs. Hudson testified all arrangements were made. She stated that Bailey interviewed them, ascertained what services they desired, helped them select a casket, gave them prices on different lots, asked questions about payment, signed the contract on behalf of the funeral home, and told them he would pick up the body from the morgue. After their initial meeting, Bailey telephoned and told her she would have to bring clothes for the deceased. Thereafter, Bailey called again to inform her that a larger casket than the one she had selected would be needed, and there would be an additional charge. On the day of the funeral, Bailey led people in to view the body. After the funeral, Mrs. Hudson turned the matter over to her daughter.

Her daughter, Florence Rankin, testified that after the funeral she called Bailey to inquire whether the insurance company had paid the bill. Bailey told her the bill had not been paid. Thereafter, she received the bill and noticed an additional charge. She called the funeral home and talked with Eva Janney who told her the additional charge was for the extra length needed for the casket and grave opening. Believing they had been overcharged, the Hudson family filed a complaint with the Department.

Harold Tecktiel, a Department investigator, testified that he spoke with Eva Janney about the Hudson complaint. He stated that as part of his duties as an investigator, he verified the licenses of those employed at the funeral home and found that Dennis Bailey, whom Mrs. Janney told him was a funeral director, was unlicensed.

Eva Janney testified that she originally hired Bailey as a driver in July 1975. In October, she needed an apprentice and hired Bailey at the recommendation of another funeral director and took Bailey's word that he was a licensed trainee. Admitting that it was not general practice to hire people on their word, she explained that during this time, help was difficult to obtain since a strike in the industry was expected. The strike occurred in November 1975. She stated that during the strike, several funeral homes created a cooperative agreement by which they would help each other out when the need arose. Mrs. Janney testified that another funeral director picked up the body from the morgue. She also testified that a hired chauffeur and a funeral director accompanied the body in a hearse to the cemetery.

In January 1976, Mrs. Janney applied for a renewal of her license pursuant to statutory mandate. In order to do so, she had to list all employees and their certificate numbers. She listed Bailey as a trainee under a number he gave her. Later it was discovered that Bailey's number was not a certified trainee's number but was a student exam number. She admitted that she never required Bailey to show her his certificate or display it in the office as required by statute. She also admitted having knowledge of the rule that even a trainee cannot act independently of a funeral director but is subject to the director's supervision. She testified that she saw the Hudson family arrive and leave but admitted that Bailey was alone with them when the arrangements were made; and that no licensed funeral director was actually with Bailey. She stated, however, that she was a licensed funeral director and was on the premises for supervision at that time.

Ernestine Biggs testified that she had no knowledge as to whether Bailey operated with or without the supervision of a funeral director since she was not always present at the funeral home and was not involved in daily operations. She testified that she was not involved in the Hudson funeral nor the hiring of Bailey, and that Eva Janney was the manager.

The Board of Examiners found that Biggs and Janney did allow Dennis Bailey, an unlicensed person, to perform the functions of a funeral director for the Hudson funeral and recommended to the Director that their licenses be suspended for 30 days.

Thereafter, the Director granted the plaintiffs' petition for a rehearing and sent the case back to the Board for the determination of whether Bailey's acts, which included signing the contract, picking up the body, and conducting the funeral service, required a license. In response to these questions, the Board found that a license was required for each of the above-mentioned acts. The Department adopted the Board's findings and suspended the plaintiffs' licenses for 30 days.

Plaintiffs filed a complaint in the circuit court requesting administrative review of the Department's order. The trial court reversed the Department's decision on the basis it was contrary to the manifest weight of the evidence and law, was arbitrary, capricious, and unreasonable in view of the ...


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