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Appeal of Phaneuf

Supreme Court of New Hampshire

December 11, 2013

Appeal of Arthur O. Phaneuf

Issued the following order:

The respondent, Arthur O. Phaneuf, appeals an order of the New Hampshire Board of Registration of Funeral Directors and Embalmers (board) reprimanding him for violating RSA 325:32, II(c) and II(g) (2011). The respondent argues that the board erred when it sanctioned him for: (1) allowing his unlicensed employee, Jeffrey Plasz, to act in the capacity of a licensed funeral director; (2) violating RSA 325:32, II(g), which prohibits "willful or repeated" violations of RSA chapter 325 (2001 & Supp. 2013); and (3) failing to notify a customer, Robert Holmes, that the urn containing his wife's ashes was not the model that he had selected. We affirm in part, reverse in part, and remand to the board for reconsideration of its sanctions in light of this order.

Our standard of review for the board's decisions is governed by RSA 541:13 (2007). See RSA 325:34, VII (2011). We defer to the board's findings of fact, and we will reverse its decision only if it is erroneous as a matter of law or if we are satisfied by a clear preponderance of the evidence that its order was unjust or unreasonable. See Appeal of Kelly, 158 N.H. 484, 490 (2009). The board's findings of fact are presumed prima facie lawful and reasonable. RSA 541:13. This presumption may be overcome only by a showing that there was no evidence from which the board could conclude as it did. Appeal of Huston, 150 N.H. 410, 411 (2003).

The board found the following facts. The respondent is a licensed funeral director. He employed and directed Plasz, who is not a licensed funeral director. On February 22, 2010, Holmes went to the Cremation Society of New Hampshire (CSNH) and met with Plasz. At that time, Plasz assisted Holmes in completing a form that indicated the cremation goods and services that Holmes wanted for his wife. Following Holmes's wife's death, CSNH provided those services. On February 27, Holmes collected his wife's ashes from CSNH. At that time, Holmes discovered that the urn containing his wife's ashes was not the one that he had selected. CSNH staff had substituted a different urn without informing Holmes.

The respondent challenges the board's finding that "Jeffrey A. Plasz did act in the capacity of a licensed funeral director when completing the itemized Statement of Funeral Goods and Services with Mr. Holmes thus placing the Respondent in violation of RSA 325:32, II(c) and RSA 325:32, II(g)." Pursuant to New Hampshire Funeral Board regulations, a licensed funeral director is accountable for the actions of his unlicensed employees. N.H. Admin. Rules, Frl 304.02(d). Because neither party argues to the contrary, we assume, without deciding, that RSA 325:32, II(c) requires an itemized statement of funeral goods and services to be completed by a licensed funeral director. Thus, the finding that the respondent violated RSA 325:32, II(c) is predicated upon two conclusions: (1) that the form Plasz assisted Holmes in completing was an itemized statement of funeral goods and services; and (2) that Holmes did not subsequently meet with a licensed funeral director to prepare an itemized statement of funeral goods and services.

The board concluded that the form that Plasz helped Holmes complete was an itemized statement of funeral goods and services. This conclusion is supported by the fact that the form enabled Holmes to select cremation packages, services, and merchandise, stating the costs of each, and to choose a disposition option. The form also authorized CSNH to "take possession of, to cremate and to carry out the final disposition of" Holmes's wife's remains. Plasz told Holmes that all he needed to do after completing the form was to call CSNH, and it would take care of his wife's remains. Therefore, we are satisfied that the board's finding that this form was an itemized statement of funeral goods and services was not unreasonable, unjust, or erroneous as a matter of law.

We construe the respondent's argument to be that RSA 325:32, II(c) was satisfied when Holmes later met with a licensed funeral director employed by the respondent and completed an itemized statement of funeral goods and services with her. Because the board implicitly found that no such meeting occurred, we need not decide whether such a subsequent itemized statement would satisfy the statute. A licensed funeral director employed by the respondent testified that she met with Holmes after his wife died and that she prepared an itemized statement with him. However, Holmes testified that he did not meet with her. We will not disturb the board's credibility determinations on appeal. See Huston, 150 N.H. at 414. Weighing testimony and assessing its credibility are solely the province of the board. Id. Thus, we are satisfied that the board's determination that the respondent violated RSA 325:32, II(c) by allowing an employee who was not a licensed funeral director to prepare an itemized statement of funeral goods and services was not unjust, unreasonable, or erroneous as a matter of law. See RSA 325:1, VIII (2011) (defining "funeral directing").

We construe the respondent's next argument to assert that, even if he violated RSA 325:32, II(c), he did not violate RSA 325:32, II(g), which prohibits willful or repeated violation of RSA chapter 325. The order does not clarify whether the board found repeated violations of RSA chapter 325, or a willful violation, or both. As to the issue of repeated violations, the pleadings and testimony provide evidence of only the single transaction with Holmes. The State argues in its brief that the respondent's "routine" use of the form that Plasz helped Holmes complete "shows that the violation is willful and repeated." However, the record does not establish that there were other instances when the respondent's unlicensed employees assisted in filling out the form. Therefore, on this record, we are convinced, by a clear preponderance of the evidence, that it would have been unreasonable for the board to conclude that the respondent repeatedly violated RSA chapter 325.

The board made no factual findings regarding the respondent's willfulness. The record does not include evidence directly on this point. The State argues only that the respondent's use of the form was "routine" and, therefore, willful and repeated. Although the board's findings are presumed prima facie lawful and reasonable, RSA 541:13, this presumption may be overcome by a showing that there was no evidence from which the board could conclude as it did. Huston, 150 N.H. at 411. We find no evidence here that the respondent's actions were willful. Therefore, based upon this record, we are convinced, by a clear preponderance of the evidence, that it would have been unreasonable for the board to conclude that the respondent willfully violated RSA chapter 325.

Finally, the State concedes that the board erred in reprimanding the respondent for the failure to inform Holmes that his wife's ashes had been placed in an urn that he had not selected. The State acknowledges that, because other licensed funeral directors were responsible for placing Holmes's wife's ashes in a different urn, the respondent cannot be reprimanded for failing to notify Holmes of the substitution. See N.H. Admin. Rules, Frl 304.02 (licensed funeral director accountable for acts of unlicensed employees). Therefore, we reverse that aspect of the board's order.

Accordingly, we affirm the board's finding that the respondent violated RSA 325:32, II(c) by allowing an unlicensed employee to complete an itemized statement of funeral goods and services. We reverse the board's findings that the respondent violated RSA 325:32, II(g) and, further, that he was responsible for the failure of other licensed funeral directors to inform Holmes that his wife's ashes had been placed in an urn that he did not select. We remand to the board for a determination of what sanction, if any, is warranted for this single violation of RSA 325:32, II(c).

Affirmed in part; reversed in part; and ...


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