Moraski v. Connecticut Bd. of Examiners

• Decision Date: 21 April 2009
• Docket Number: No. 18248.,18248.
• Citation: 967 A.2d 1199,291 Conn. 242
• Court: Connecticut Supreme Court
• Parties: Paul MORASKI et al. v. CONNECTICUT BOARD OF EXAMINERS OF EMBALMERS AND FUNERAL DIRECTORS.

967 A.2d 1199

291 Conn. 242

Paul MORASKI et al. v. CONNECTICUT BOARD OF EXAMINERS OF EMBALMERS AND FUNERAL DIRECTORS.

No. 18248.

Supreme Court of Connecticut.

Argued January 14, 2009.

Decided April 21, 2009.

William S. Palmieri, New Haven, for the appellants (plaintiffs).

Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The plaintiffs, Paul Moraski and Colonial Funeral Home (Colonial), appeal from the trial court's judgment dismissing their appeal from the decisions of the defendant, the state board of examiners of embalmers and funeral directors (board), suspending and thereafter revoking Moraski's embalmer's license and Colonial's funeral home inspection certificate (certificate) and imposing a $50,000 fine on Moraski. The plaintiffs contend that the trial court improperly concluded that: (1) their challenge to the board's summary suspensions had been rendered moot; (2) the board had not abused its discretion or otherwise acted unlawfully in the procedures leading to the revocation of the license and certificate; and (3) the board had not abused its discretion in imposing the penalties of revocation and an excessive fine. We conclude that the trial court properly dismissed the plaintiffs' appeal and, therefore, we affirm the judgment.

The record discloses the following undisputed facts and procedural history. At all relevant times prior to November 15, 2005, Moraski held an embalmer's license and both owned and operated Colonial, which held a certificate that permitted it to operate its business in Hamden. On November 15, 2005, based on allegations of misconduct in connection with the funeral of Robert Foley, the department of public health (department), pursuant to General Statutes §§ 4-182(c)¹ and 19a-17(c),² filed motions, along with supporting affidavits, seeking summary suspension of Moraski's license and Colonial's certificate on the ground that their "continued practice ... represents a clear and immediate danger to the public health and safety." The department also filed a statement of charges against each plaintiff, alleging violations of General Statutes (Rev. to 2005) § 7-65³ and General Statutes §§ 7-62b,⁴ 7-64,⁵ 20-230a⁶ and 20-230b,⁷ and claiming that these violations constituted grounds for disciplinary action pursuant to General Statutes § 20-227, including but not limited to subdivisions (2), (4) and (5).⁸ That same day, the board issued orders summarily suspending the license and certificate, to be effective pending a final determination regarding the allegations contained in the statement of charges. The board therein scheduled a hearing for November 29, 2005.

On November 23, 2005, the department filed motions to amend the statements of charges to add allegations involving a new out-of-state witness, to which the plaintiffs objected on the ground that they would not be able to subpoena this witness. On November 29, 2005, the day hearings commenced, the board granted the motions to amend with the stipulation that, should the witness involved not return if requested by the plaintiffs, his or her testimony would be stricken from the record. That same day, the department requested permission to file second amended statements of the charges to add a second count concerning Moraski's alleged misconduct with regard to the funeral of another decedent, Judith Jimenez. Over the plaintiffs' objection, the board thereafter granted the request, with the caveat that the new allegations would be heard at a later date to give the plaintiffs an opportunity to prepare a defense.

Broadly characterized, the department alleged in the statements of charges as to both funerals that Moraski had failed to give the decedents' relatives a signed statement of goods and services provided and had engaged in verbally abusive behavior toward the decedents' families when they attempted to resolve the disposition of their loved ones' remains. With respect to Foley specifically, the department alleged, inter alia, that the plaintiffs had: refused to release his remains to another funeral director for burial, failed to cremate his corpse in a timely fashion; stored his unrefrigerated remains outside the embalming room such that the storage constituted a public health risk; and misled and abused his family members when they asked for his corpse or cremains.

The board commenced hearing evidence on the first count pertaining to Foley on November 29, 2005. The board thereafter continued hearing evidence on both counts over the course of several months, specifically, on January 10, January 24, February 27, March 7 and April 11, 2006. In written decisions dated September 12, 2006, the board concluded that the plaintiffs' actions with respect to the handling of the Foley and Jimenez funerals constituted grounds for disciplinary action pursuant to § 20-227(2), (4) and (5). In a comprehensive twenty page decision, the board set forth each of the department's allegations, cited evidence relevant to each allegation and made findings of fact and conclusions of law relevant to each of the charges. When there was conflicting testimony between Moraski and the department's witnesses, the board consistently found the department's witnesses to be more credible.

Specifically, with respect to the handling of Foley's remains and funeral, the board found that the plaintiffs had not given the family members an itemized price list and the method of payment required for the services actually selected, as required by statute. The board found that, although the plaintiffs were required by statute to have buried or cremated the decedent's remains within a reasonable time after death pursuant to § 7-64, the plaintiffs had not had the decedent's remains cremated, but left them instead unrefrigerated in Colonial's basement for forty-nine days after his death, such that the odor of decomposition was present in the garage of the building. The board credited testimony that the plaintiffs had demanded cash payment and had refused to release Foley's body to Graham, Putnam and Mahoney Funeral Parlors of Massachusetts (Graham) for burial in that state until such payment was provided. The board further concluded that the plaintiffs had failed to obtain a burial transit removal permit and a death certificate within the five day period prescribed by statute. See General Statutes (Rev. to 2005) § 7-65 and General Statutes § 7-62b(a). It determined that the plaintiffs had failed to comply both with Probate Court orders regarding the filing of the cremation certificate and with the proper preparation of the cremains. The board also credited the testimony of Foley's mother and his former wife, both of whom were involved in the funeral arrangements, that Moraski had yelled at them and called them insulting names, specifically, that Moraski had called Judith Sullivan, Foley's mother, a "scam artist," a "psycho case," a "bitch" a "con-artist" and a "shyster," and had called Lori Foley, the decedent's former wife, a "bitch" and an "asshole."

The board did find, however, that the department had not met its burden of proof with respect to all of its allegations regarding Foley's remains. Most significant was the allegation that the storage of Foley's unrefrigerated remains had constituted a public health risk and hazard, which the board rejected because expert testimony had established that, despite improper storage, the storage of the body in a polyethylene bag eliminated any possibility of direct physical contact between the body and the food or water supply.

With respect to the second count of the statement of charges, pertaining to Jimenez, the board made the following findings. In February, 2005, Jimenez died in Florida. Jimenez' daughter, Carmen Torres, authorized Moraski to transfer her mother's body from Florida to Bradley International Airport in Windsor Locks and met with Moraski to make funeral arrangements. Moraski failed to give Torres either a general price list itemizing the prices of all available goods and services or a written statement itemizing the prices of the services and merchandise that she had selected. Shortly thereafter, Torres retained Washington Memorial Funeral Home (Washington) to handle Jimenez' funeral and authorized it to remove Jimenez' remains from Colonial. John Iacobucci of Washington immediately informed Colonial that Torres had retained Washington and that calling hours would be the following evening. Moraski then contacted Torres, demanded that she meet with him alone and told her that he would not release her mother's remains from Bradley International Airport unless she paid him $350. At some point during these negotiations, Moraski stated to Torres "`why are you fucking calling me if you don't have the money'" and yelled at Iacobucci to get "`the fuck off his property'" when Iacobucci came to retrieve Jimenez' body.

On the basis of these previous findings, the board concluded that the plaintiffs had violated §§ 7-62b, 7-64, 7-65, 20-230a and 20-230b, and that license and certificate revocation and a $50,000 civil penalty were warranted under §§ 19a-17 and 20-227. The board concluded that revocation of Moraski's license and Colonial's certificate was appropriate in light of their "blatant disregard for the laws governing [funeral homes] funeral directors and embalmers in Connecticut, the lack of respect [they] demonstrated toward [their] clients and the deceased, and the potential danger [Moraski individually and as Colonial's manager] posed to the general public...." Moreover, because of the egregiousness of Moraski's conduct and the nature of the violations, the board found that a significant civil penalty was fully supported by the record.⁹

Claiming bias and procedural impropriety, the plaintiffs jointly appealed from the board's decision...