Ansell v. Department of Commerce, Bd. of Examiners of Mortuary Science

• Decision Date: 14 March 1997
• Docket Number: No. 187751,187751
• Citation: 222 Mich.App. 347,564 N.W.2d 519
• Parties: Harold S. ANSELL, Jr., Petitioner-Appellant, v. DEPARTMENT OF COMMERCE, BOARD OF EXAMINERS OF MORTUARY SCIENCE, Respondent-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 519

564 N.W.2d 519

222 Mich.App. 347

Harold S. ANSELL, Jr., Petitioner-Appellant, v. DEPARTMENT OF COMMERCE, BOARD OF EXAMINERS OF MORTUARY

SCIENCE, Respondent-Appellee. (On Remand)

No. 187751.

Court of Appeals of Michigan.

Submitted Jan. 22, 1997, at Lansing.

Decided March 14, 1997, at 9:40 a.m.

Released for Publication May 22, 1997.

Willingham & Cote, P.C. by Curtis R. Hadley, East Lansing, for petitioner-appellant.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Michael A. Lockman and R. Francis Rose, Assistant Attorneys General, for respondent-appellee.

Before GRIFFIN, P.J., and McDONALD, and C.W. JOHNSON ^*, JJ.

ON REMAND

RICHARD ALLEN GRIFFIN, Presiding Judge.

Petitioner, Harold S. Ansell, Jr., appeals as on leave granted the circuit court's order affirming an order of respondent, Department of Commerce, Board of Examiners of Mortuary Science, revoking his license to practice mortuary science. We affirm and hold that the board correctly construed M.C.L. § 339.1808(3); M.S.A. § 18.425(1808)(3) to require prospective morticians to embalm or participate in embalming twenty-five dead human bodies during the prescribed resident training period.

I

After obtaining the requisite accreditation, completing a resident training program under the tutelage of his father, Harold Ansell, Sr., and passing required national and state examinations, petitioner obtained a license to practice mortuary science in March 1988. ¹ In qualifying for licensure, petitioner was obliged to complete the resident training prescribed in § 1808 of the Occupational Code, M.C.L. § 339.101 et seq.; M.S.A. § 18.425(101) et seq. Section 1808(3), M.C.L. § 339.1808(3); M.S.A. § 18.425(1808)(3), requires prospective licensees to either embalm or assist a licensed mortician "in supervising the preparation of 25 dead human bodies for burial or transportation during the period of resident training." In proving compliance with § 1808, petitioner submitted twenty-five "EMBALMING REPORT" forms to the former Department of Licensing and Regulation (MDLR). ² In completing each report, petitioner identified the subject corpse, detailed the body's preembalming condition, described the embalming procedure, and listed various other administrative details to which he attended. ³ By signing each report, petitioner attested to having "personally embalmed or assisted in the preparation of this case." Additionally, either his father or trade embalmer James Lucius signed the embalming reports in the space provided for the "[e]mbalmers signature, if other than the sponsor." Each form states: "No credit will be given for any case where embalming was not performed, i.e., ship-ins ⁴, immediate cremations or burials, or body donations."

In March 1988, the MDLR received a complaint that the Truesdale Funeral Home was conducting funerals without the supervision of a licensed mortician. ⁵ A subsequent investigation disclosed that petitioner had neither embalmed nor participated in embalming several of the cases for which he claimed credit as a resident trainee. This investigation also revealed discrepancies in the petitioner's embalming reports, including several instances where the person attesting to embalming the case was not the actual embalmer. Thereafter, on August 2, 1989, the MDLR prepared a formal complaint charging petitioner with several violations of the Occupational Code.

At a settlement/compliance conference held on September 20, 1989, the parties tentatively agreed to settle the case. However, petitioner's attorney requested some amendments of the written settlement agreement, and the MDLR redrafted and remailed the proposed agreement in October 1989. Because petitioner's attorney requested three weeks to review the revised proposal, the board could not review the proposed settlement at its November 28, 1989, meeting. Accordingly, the board did not consider the proposed agreement until its next meeting. At its meeting held on February 8, 1990, the board rejected the proposed settlement. Thereafter, on December 17, 1991, the MDLR scheduled a formal hearing for January 8, 1992. Upon petitioner's request, the hearing was adjourned until February 11, 1992. On that date, the Administrative Law Examiner (ALE) rejected petitioner's multiground motion to dismiss and scheduled a contested case hearing for May 1, 1992.

Testifying during the state's case in chief, petitioner admitted that his father had not embalmed any of the bodies identified on petitioner's embalming reports. Additionally, Mr. Lucius testified that he was mistaken in signing six of petitioner's embalming reports because he never embalmed the identified bodies. Petitioner explained, however, that he was unaware that embalming reports required an embalmer's signature because an MDLR staffer told him that his sponsor's name could be used in place of the embalmer. Moreover, petitioner agreed that he did not participate in embalming at least seventeen of the twenty-five bodies identified in the submitted embalming reports. ⁶ Nevertheless, petitioner testified that he thought he had "personally ... assisted in the preparation of [each] case[ ]" by performing administrative and funeral-related tasks such as procuring clergy, arranging flowers, ushering mourners, preparing obituaries, cosmetically modifying embalmed corpses, selling funeral merchandise, and positioning bodies in caskets.

The state countered petitioner's interpretation with testimony from several licensed morticians, who each explained that "preparation for burial" is a term of art that mortuary scientists use synonymously with the phrase "act of embalming." Each testifying licensee concluded that body preparation means services performed on dead bodies, not tasks connected with funerals. Additionally, two MDLR/commerce department staffers testified that the board has historically construed the resident training requirement in § 1808(3) to mandate twenty-five embalmings and that applications for mortuary science licenses would be rejected if they knew the applicant had not participated in any embalmings.

In a comprehensive written opinion, the ALE construed § 1808 to require resident trainees to personally embalm or assist in embalming twenty-five dead human bodies. The ALE thus concluded that petitioner misled the MDLR by submitting embalming reports on bodies he did not help to embalm. ⁷ Consequently, the ALE found that petitioner violated M.C.L. § 339.604(a) and (d); M.S.A. § 18.425(604)(a) and (d) by obtaining his mortician's license through fraud or deceit and by demonstrating a lack of good moral character. ⁸ On the basis of these findings, the board voted to revoke petitioner's license to practice mortuary science. The board served petitioner a final order revoking his mortician's license on December 29, 1992.

Petitioner appealed the board's decision to the circuit court, which affirmed. This Court denied petitioner's application for leave to appeal in Docket No. 177001. In lieu of granting leave to appeal, our Supreme Court remanded this matter to this Court for consideration as on leave granted. Ansell v. Dep't of Commerce, 449 Mich. 893, 536 N.W.2d 773 (1995).

II

On appeal, petitioner contends that the circuit court erred in affirming the board's order that revoked his license to practice mortuary science. We disagree. We review the factual findings of administrative agencies to determine whether they are supported by competent, material, and substantial evidence on the whole record. Const. 1963, art. 6, § 28; Amalgamated Transit Union, Local 1564, AFL-CIO v. Southeastern Michigan Transportation Authority, 437 Mich. 441, 450, 473 N.W.2d 249 (1991); Employment Relations Comm. v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 124, 223 N.W.2d 283 (1974). We will set aside an administrative agency's legal ruling only if it violates the constitution or a statute or is affected by a "substantial and material error of law." M.C.L. § 24.306(1)(a), (f); M.S.A. § 3.560(206)(1)(a), (f); Amalgamated Transit Union, supra at 450, 473 N.W.2d 249; Southfield Police Officers Assn. v. Southfield, 433 Mich. 168, 175-176, 445 N.W.2d 98 (1989). Although administrative agencies may not eschew the plain meaning of a statute, we afford considerable weight to the statutory construction made by the agency charged with the execution of a statute. Ludington Service Corp. v. Acting Comm'r of Ins., 444 Mich. 481, 490, 511 N.W.2d 661 (1994), amended 444 Mich. 1240, 518 N.W.2d 478 (1994); Magreta v. Ambassador Steel Co., 380 Mich. 513, 519, 158 N.W.2d 473 (1968).

The dispositive issue presented is whether § 1808(3) mandates prospective mortuary scientists to embalm or participate in embalming twenty-five dead human bodies. ⁹ In addressing this issue, we are mindful that " '[t]he fundamental purpose of any rule of statutory construction, of course, is to assist the court in discovering and giving effect to the intent of the Legislature.' " Terzano v. Wayne Co., 216 Mich.App. 522, 526-527, 549 N.W.2d 606 (1996), quoting In re Certified Question, 433 Mich. 710, 722, 449 N.W.2d 660 (1989). Once discovered, the Legislature's intent must prevail, any existing rule of construction to the contrary notwithstanding. In re Certified Question, supra at 722, 449 N.W.2d 660; Terzano, supra at 527, 549 N.W.2d 606. Where reasonable minds may differ about the meaning of the statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature's purpose. Terzano, supra at 527, 549 N.W.2d 606; People v. Ward, 211 Mich.App. 489, 492, 536 N.W.2d 270 (1995). In discovering legislative purpose, statutes relating to the same subject or sharing a common purpose are in pari materia and must be read together. Jennings v. Southwood, 446 Mich. 125, 136, 521 N.W.2d 230 (1994); State Treasurer v. Schuster, 215 Mich.App. 347, 352, 547 N.W.2d...