Before Wagner, Chief Judge, and Terry and Steadman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Petition for Review of a Decision of the District of Columbia Board of Funeral Directors
Petitioners are two officers and an employee of the John T. Rhines Company, a District of Columbia funeral home. They seek review of a decision of the Board of Funeral Directors ("the Board") which imposed civil fines and damages against them for breaching a funeral services contract with Marian Washington, whose husband had recently died. Following a hearing, the Board ruled that petitioners had "failed to provide funeral goods or services specified in the contract," in violation of 17 DCMR § 3013.2 (l)(24) (1990),*fn1 when they failed to remove a catheter tube from the decedent's penis and failed to embalm and prepare the body properly for shipment to Texas for burial, thus making it necessary for another funeral home in Texas to re-embalm and re-dress the body before it could be buried.
Before this court petitioners make three arguments. First, they contend that there was insufficient evidence to support the Board's decision; second, they maintain that the Board's decision is invalid because it was not rendered within ninety days after the hearing; and third, they assert that the Board's decision was arbitrary and capricious because the government conducted its investigation in a negligent manner. We agree with the first contention, and thus we reverse the Board's ruling without reaching the second and third arguments.
Vernon Washington was a patient at Walter Reed Army Hospital when he died on June 21, 1990, of chronic liver disease and related ailments. His widow, Marian Washington, contacted the John T. Rhines Company ("Rhines") to make arrangements for the preparation and shipping of her husband's body to El Paso, Texas, where he was to be buried at Fort Bliss National Cemetery. Mrs. Washington entered into a written contract with Rhines which required Rhines to embalm and dress her husband's body, provide professional care, and ship the body by air to an El Paso funeral home.
On June 25 the body was shipped to El Paso, where it was received by employees of the Banks, Marlin & Johnson Funeral Home ("Banks"). According to a memorandum prepared by Harrison Johnson, a funeral director at Banks, the body was in poor condition and smelled of embalming and other offensive bodily fluids when it arrived in El Paso.*fn2
After picking up the body at the airport, Mr. Johnson contacted Mrs. Washington and asked her to come to the Banks Funeral Home to examine her husband's remains. When she arrived, Mrs. Washington was advised that the body should be re-embalmed. She agreed to this, and Banks proceeded to disinfect and re-embalm the body. Photographs were taken of the body both before and after the re-embalming procedure. The funeral then took place, and Mr. Washington was buried at Fort Bliss.
On July 15, 1992, Mrs. Washington filed a complaint against Rhines with the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"). She alleged, inter alia, that Rhines had used unprofessional and incompetent embalming techniques which had resulted in the premature deterioration of her husband's body. She asked that the Board of Funeral Directors discipline Rhines and either revoke or suspend the licenses of Rhines' directors.*fn3 After an investigation, the Board notified the three petitioners of its intent to take disciplinary action against them. Each of the petitioners was charged with (1) gross negligence in the practice of funeral directing, in violation of D.C. Code § 2-2808 (a)(11) (1994); (2) failing to treat human remains with dignity and respect, in violation of 17 DCMR § 3013.2 (l)(21) (1990); and (3) failing to provide funeral goods or services as specified in the funeral contract, in violation of 17 DCMR § 3013.2 (l)(24) (1990).
B. The Evidence at the Hearing
The government's primary witness at the hearing before the Board*fn4 was Marian Washington. She testified that she had contacted Rhines immediately after her husband's death and that she met later with a secretary at the funeral home and discussed plans for sending the body to Texas. Mrs. Washington said that she was not warned of any special precautions that might be necessary to prepare the body for shipment, and that she later signed a contract which authorized Rhines to embalm her husband's body and ship it to El Paso. The contract required Rhines to "forward the remains to another funeral home . . . [and to provide] embalming and professional care." Mrs. Washington paid Rhines $767.00 for the ...