Cooley v. State Bd. of Funeral Directors and Embalmers
| Decision Date | 03 May 1956 |
| Citation | 141 Cal.App.2d 293,296 P.2d 588 |
| Court | California Court of Appeals Court of Appeals |
| Parties | J. E. COOLEY, doing business as Valley Funeral Home, Petitioner and Appellant, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS of the State of California, George L. Nielsen, et al., Respondents. Civ. 5337. |
L. Kenneth Say and Lewis W. Boies, Jr., Fresno, for appellant.
Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., and Frank Bottaro, Sacramento, for respondents.
This action, under Section 1094.5 of the Code of Civil Procedure, was commenced by petitioner and appellant, doing business as Valley Funeral Home, against respondents State Board of Funeral Directors, et al., to review its order revoking petitioner's license as a funeral director after hearing by respondent Board. The accusation is that prior to and on February 28, 1955, petitioner violated Rule 1218 of the California Administrative Code, Title 16, Chapter 12, State Board of Funeral Directors and Embalmers, in that he kept and maintained his embalming table, preparation room and appliances used in embalming human dead bodies in an unclean and unsanitary condition, and that his mortuary was generally unclean and unsanitary.
Petitioner appeared at the hearing before the Board without counsel on April 11, 1955. He was informed of his right to counsel and he elected to proceed without any. Thereafter, witnesses were sworn and examined and petitioner cross-examined the witnesses at great length. The field representative of the Board testified that he visited petitioner's place of business on many occasions beginning with September 28, 1954, and that on one occasion Mrs. Cooley gave him permission to enter the office but claimed she could not find the key to the preparation room. After waiting in the chapel for some time he sensed a powerful odor of decomposition so tried the door to the preparation room and found it unlocked. Accompanied by an attendant of petitioner he proceeded into the room and found maggots on the floor which had been coming from a decomposing infant's body. The embalming table, hopper and wall surrounding it were in a very dirty condition. He was unable to contact petitioner that day due to his absence. He left a warning note that if the conditions were not corrected by 8 a. m. the following day it would be brought to the attention of the local health authorities. The next morning he found petitioner in the process of cleaning it up and advised him the room was extremely unsanitary and did not meet the requirements of the Board. He inspected it again on October 18th. Petitioner was not present. He inquired about the key and was told it was not available so he inspected the chapel and it appeared to be in a 'very dirty and disorderly condition'. He was unable to gain admission into the preparation room so he acquired the services of a police photographer who took pictures of it through one of the back windows. About that time petitioner appeared on the scene and refused to open the preparation room to the inspector claiming that he was suspicious of the inspector taking the pictures and stated that he did not have the key. The inspector offered to pay for a new lock if he would break it but petitioner refused. The pictures were then identified and received in evidence without objection. According to the testimony these photographs showed what appeared to be brown blood stains on the wall, newspapers scattered around, a dead body under a covering, cosmetics used in the profession scattered around, and a dresser 'mussed up' and 'quite dirty'. The picture of the anteroom showed cardboard boxes littered with various items and rags on the floor. In the chapel there appeared to be considerable dirt on the floor such as flower petals, etc. In the anteroom were very dirty extra caskets in storage.
After several previous inspections, the inspector returned and on February 23, 1955, entrance to that room was refused by an employee in the absence of petitioner, claiming that the key could not be found. By the aid of the police and the photographer the door was unlocked, and in the presence of petitioner's employee photographs were taken. One dead human body was found stacked on top of another. Empty bottles and other things were lying around, and this room appeared to be in the same cluttered condition as before depicted. On the pulpit was found a bloody or filthy knife and a dirty gauze mask. No water was in the hydrant and no facilities were available for washing one's hands. The instruments lying around did not appear to have been cleaned between one case and another.
A licensed physician and pathologist testified that on the 10th day of February he went to the premises and performed an autopsy; that the place was so dirty he changed his clothes in his car and used his own instruments; that there was no water with which he could wash his hands and this condition existed on several prior occasions.
Petitioner, at the hearing and after being informed of his rights, testified that on occasions the inspector came to the parlor for inspection; that he was so busy with his turn at coroner cases he did not have time to give proper attention to it; and that all of his employees knew where the key to the property room was kept but sometimes they took it with them on calls. He identified the photographs as representing the general conditions on the days they were taken but claimed rush of business for the dereliction. He admitted that the inspector had warned him on previous occasion and that he had promised to install an exhaust fan and screens on the windows to prevent the flies from coming in but had not done it. Upon this evidence and with the consent of petitioner, the matter was submitted with the result indicated.
On the hearing before the Superior Court, the transcript and exhibits, including all photographs, were received in evidence by stipulation. Petitioner was represented by counsel at the time. Petitioner then produced a witness for the claimed purpose of showing that the evidence against him was obtained by illegal search and seizure under Article I, § 19 of the Constitution of California. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, and People v. Berger, 44 Cal.2d 459, 282 P.2d 509.
Further showing by petitioner was made that neither he nor his employees nor the embalmer had...
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