663 N.E.2d 978 | Ohio Ct. App. | 1995
Joseph Ciriello Funeral Home, Inc. ("Ciriello") has appealed from a judgment of the Summit County Court of Common Pleas that affirmed the determination of the Ohio Board of Embalmers and Funeral Directors ("board") not to issue it a license to operate a funeral home under the name Rose Hill Chapel — Ciriello Funeral Home. It has argued that the trial court incorrectly affirmed the *215
decision of the board because (1) the board's requirement that the funeral director's name appear first in the title of the funeral home was not mandated by R.C.
On May 13, 1993, the board proposed denying Ciriello's application. According to the board, Ciriello's proposed name did not comply with the requirement of R.C.
"You have applied for a funeral home license seeking to have the license issued under the name `Rose Hill Chapel — Ciriello Funeral [Home].' The words `Rose Hill Chapel' are not names of a holder of a funeral director's license, and as such do not satisfy the statutory language [of Section
On May 19, 1993, Ciriello requested a hearing on the board's proposed denial and, on June 21, 1993, such a hearing was held. The hearing officer determined that Ciriello was the managing funeral director of the funeral home, and that he owned a ten-percent interest in the business. In his findings of fact, he further recognized the board's past practices and its concern that the proposed name for the funeral home could be misleading: *216
"7. This Board has interpreted Ohio law concerning the names of funeral homes to require that the funeral home must be established in the name of the funeral director in charge and who also has a substantial interest in the business. In addition, this Board has interpreted the law to permit the funeral home title to include other names which indicate the location of the funeral home. * * *
"8. This Board has further interpreted Ohio law to require that the name of the licensed funeral director must predominate (or come first) over the location name in the name of a funeral home. This Board's interpretation is based upon its belief that having the funeral director's name first protects the public from confusion as to the identity of the licensed person who can actually practice funeral directing and who is responsible for the operation of the business.
"In the instant case, since Rose Hill is a cemetery name and the first name in the proposed funeral home title, this Board believes that the public may be misled or confused to believe that the cemetery (and its parent, Gibraltar) could render or sell funeral services when only a licensed funeral director can provide such services. This is especially true because cemeteries are not under the jurisdiction of this Board."
Despite that recognition, the hearing officer recommended that the board grant Ciriello's application because, according to him, R.C.
"It is my opinion that this Board, as an administrative agency, can only impose a requirement as to the order of names after it has promulgated a Rule to that effect. Without a Rule dictating the name order, I do not believe this Board has the authority to prohibit the location name from being first. This Board can allow location names in the title because that does not violate a proper interpretation of R.C.
On September 15, 1993, the board issued an "Adjudication Order and Opinion" in which it rejected the report of the hearing officer:
"Pursuant to Section
"The Board has interpreted this law to permit the funeral home title to include directional or locational names, but only if these directional or locational names appear after the licensee's name in the firm title[.]
"The Board's interpretation of this statute, requiring the licensee's name to predominate is the result of the Board's belief that, in order to protect the public from confusion as to who is actually in charge, the licensee's name should come first in the establishment's title."
On October 22, 1993, Ciriello appealed the board's "Adjudication Order and Opinion" to the Summit County Court of Common Pleas pursuant to R.C.
In reviewing an order of an administrative agency under R.C.
"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a *218 finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law."
The determination of whether an agency's decision is supported by reliable, probative and substantial evidence is essentially a "question of the absence or presence of the requisite quantum of evidence" Univ. of Cincinnati v. Conrad
(1980),
An administrative agency's construction of a statute that the agency is empowered to enforce must be accorded due deference. See, e.g., Leon v. Ohio Bd. of Psychology (1992),
R.C.
"(A) A funeral home, establishment, or any other place pertaining to funeral directing or the conducting of funerals shall be operated or established only under the name of the holder of a funeral director's license of this state who:
"(1) Is actually in charge of such business or establishment; and
"(2) Owns a substantial financial interest in such business or establishment."
Ciriello has argued that the statute is unambiguous, does not prevent the inclusion of words other than the name of the funeral director in the name of a funeral home, and does not dictate the order of the words in the name of a funeral home. It has argued that the statute requires only that the name of a licensed funeral director who satisfies the two requirements of the statute be included in the name of the funeral home. *219
The board has conceded that it has approved the inclusion of words other than the name of the funeral director in the names of funeral homes. These other words have been locational or directional designations to differentiate between funeral homes operated by the same funeral director. The board has argued that, when other terms are included in the name of a funeral home, R.C.
R.C.
The board's construction of the statute furthers a policy of enabling consumers to identify the person responsible for the services provided as well as to verify that the particular location is licensed. By requiring that the name of the licensed owner predominate in the name by placing it first, the board is complying with the requirement of R.C.
"Said board * * * may adopt, promulgate, and enforce such rules for the transaction of its business and the management of its affairs, the betterment and promotion of the educational standards of the profession of embalming and the standards of service and practice to be followed in the profession of embalming and funeral directing and in the operation of funeral homes in the state as it may deem expedient." *220
Additionally, the board is charged with enforcing the various Revised Code sections pertaining to funeral homes and the licensing of funeral directors.
The board's denial of Ciriello's license because the words "Rose Hill Chapel" preceded the name of the managing funeral director was in furtherance of the board's authority, and did not require the promulgation of an administrative rule. As noted previously, R.C.
Judgment affirmed.
BAIRD, P.J., and SLABY, J., concur. *221