Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gordon v. State Mortuary and Cemetery Board

Court of Appeals of Oregon

April 4, 2018

ROBERT GORDON, SR., Petitioner,
v.
STATE MORTUARY AND CEMETERY BOARD, Respondent.

          Argued and submitted November 28, 2017

          State Mortuary Board Numbers 111011A, 121015A, 121021A, 121040A, 121054A, 131001A, 131001B, 131001G, 131012A, 131030A, 131030C, 131034A, 141007A, 141008A, 141008C, 141013B

          Diane C. Cady argued the cause and fled the briefs for petitioner.

          Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Petitioner seeks review of a final order of the State Mortuary and Cemetery Board revoking his funeral services license and imposing civil penalties. The board concluded that petitioner had violated various statutes and administrative rules applicable to the death care industry. Held: The board did not err in granting summary determination in favor of the board.

         Affirmed.

         [291 Or.App. 204] AOYAGI, J.

         Petitioner seeks review of a final order of the State Mortuary and Cemetery Board revoking his funeral services license and imposing $71, 000 in civil penalties. The board concluded that petitioner had violated various statutes and administrative rules applicable to the death care industry On review, petitioner raises four assignments of error. For the reasons that follow, we affirm.

         The board decided this matter on summary determination. The pertinent historical facts are undisputed for purposes of judicial review. Petitioner was the sole shareholder and corporate officer of Eternal Hills Memorial Gardens and Funeral Home (Eternal Hills), which operated a cemetery, funeral home, and crematorium in Klamath Falls from 1986 to 2016. He also was a member of Klamath Tribute Center (KTC) and the manager of a funeral home that KTC operates in Klamath Falls. In November 2014, the board issued a notice of proposed disciplinary action in which it alleged that petitioner had violated various statutes and administrative rules; it proposed to revoke his license and impose civil penalties. The allegations pertained to petitioner's own conduct as well as conduct by Eternal Hills employees and KTC employees. In total, the board alleged dozens of violations involving at least 12 different customers. In its final order, the board concluded that petitioner had committed numerous violations and, as a sanction, revoked petitioner's license and imposed $71, 000 in civil penalties.

         We review a grant of summary determination for legal error. Nacey v. Board of Massage Therapists, 287 Or.App. 228, 231, 401 P.3d 275 (2017). In his first assignment of error, petitioner contends that the board improperly imposed liability on him based solely on his status as a principal of a business. More specifically, he argues that the board lacked authority to adopt OAR 830-030-0090(2), which provides, "Principals are responsible for the actions of employees related to the operation of a licensed facility." We agree with the board that petitioner did not preserve that claim of error in the agency proceeding and therefore do not address petitioner's first assignment of error. See ORAP 5.45(1) ("No matter claimed as error will be considered on [291 Or.App. 205] appeal unless the claim of error was preserved in the lower court [.]"); Watts v. Oregon State Board of Nursing, 282 Or.App. 705, 708, 386 P.3d 34 (2016) (same rule applies to judicial review of agency action).

         In his second assignment of error, petitioner argues that many of the board's findings are not supported by "substantial evidence." Because this matter was decided on summary determination, we understand petitioner to argue that the uncontroverted evidence does not support the board's legal conclusions. A lengthy recitation of the facts and conclusions regarding dozens of violations would not benefit the parties, the bar, or the public. After review of the record, we conclude that the board did not err in granting summary determination in favor of the board based on the record before it.

         In his third assignment of error, petitioner argues that the board misinterpreted 16 CFR section 453.5 and thereby committed legal error when it concluded that he violated that rule by failing to state the reasons for embalming on multiple decedents' Statements of Funeral Goods and Services Selected. See ORS 692.180(h) (authorizing the board to impose civil penalties for a licensee's violation of any regulations adopted by the Federal Trade Commission regulating funeral industry practices). We disagree for the reasons ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.