A state agency charged with consumer protection received complaints for years about a Montrose funeral home, including concerns from other state officials, before FBI agents searched the business and it closed.
Records obtained by The Daily Sentinel indicate the Colorado Department of Regulatory Agencies, which oversees funeral homes and crematories, was contacted by officials who maintain permits allowing bodies to be cremated, buried or donated and were concerned about Sunset Mesa Funeral Directors' practices. The officials also expressed concerns about shoddy recordkeeping and owner Megan Hess' lack of compliance with state laws governing death certificates.
The agency kept the investigations open for years, rendering the complaints unavailable for public review. The lack of resolution allowed the agency to hold the contents of the complaints secret, in a limbo that didn't have a time limit and no requirement for the agency to refer them for disciplinary actions that would close the cases and release the information to the public.
VITAL RECORDS CONCERNS
Clerks charged with maintaining vital records and receiving paperwork from funeral homes required before bodies can be embalmed, cremated, buried or donated made specific complaints to the regulatory department four years ago. But no disciplinary action was taken.
Emails obtained from that department indicate a liaison for the Colorado Department of Public Health and Environment, charged with working with county officials to maintain vital records including death certificates, clued the Colorado Department of Regulatory Agencies in to problems with Sunset Mesa in 2014.
County records officials noted concerns with 12 different deaths Hess handled. Most included a concern over lack of compliance with state law requiring a death to be registered within five days.
Among those was a complaint from former Delta County Coroner Kevin Lucy, who said he signed a death certificate and knew a family received what was represented as cremains within a few hours. With most funeral home operations, cremation and processing of ashes take longer than that.
"My concern is that he was obviously cremated without a permit," Lucy wrote. "I know that Sunset Mesa is also involved in body donation. My concern is that there may be some irregularities in the process for this."
Other specific complaints included:
- Reports that death certificates weren't received for nearly a month after people died in Delta County. The registrar also complained that no disposition permit was issued in a case involving an autopsy of a 57-year-old Paonia man who died after a drug overdose.
- Reports from Montrose vital records officials about disposition permits being issued for cremation but never returned and death certificates taking up to two weeks to be registered.
Sunset Mesa, like all other funeral homes in Colorado, is required by state law to have a death certificate filed with the vital records office before obtaining a disposition permit. The permit allows the funeral home to bury, cremate, embalm or donate the body.
"That is etched in our statutes and that essentially is the only way that you can legitimately get a disposition permit, is if we have a fully completed death certificate," said State Registrar Alex Quintana.
Though a pending death certificate can be issued in certain circumstances, particularly involving those with investigations or toxicology testing where officials know the process will take longer to determine the exact cause of death, that paperwork would need to be on file prior to a body reaching its final disposition.
Quintana said there are several reasons for this procedure — the most obvious being the need to record when a death occurs, to prevent bodies from being disposed of without record. This creates a paper trail that helps determine whether a person died and locate the body or verify that the person is no longer alive.
Quintana said the formal complaint his department submitted to DORA is the only one he's aware of in recent years and it's highly unusual for his department to have issues. The office handles death certificates for approximately 30,000 fatalities per year.
DORA received the complaints from records officials in June 2014. The cases weren't officially closed until last month when the agency issued its final order in the administrative case, making the complaints and documents related to the investigation available to the public.
The report filed by DORA investigator Jeb Berry indicates he first interviewed Hess by phone more than two years after the reports from the county officials, in November 2016, after she didn't respond to other correspondence. He reported contacting her two more times by phone in December 2016 before making an in-person visit to the funeral home. Records indicate Berry used the phone calls and visit to investigate several complaints that were pending against Sunset Mesa, not just the reports from the clerks.
Berry gave Hess an on-demand subpoena for records that are supposed to be kept on-site. According to Berry's report, Hess said she had to leave the funeral home to get the records, said it would take "some time" to gather them and told him he couldn't remain on the premises. Berry agreed to spend the night in Montrose and meet her at attorney Carol Viner's office the next day.
During that visit, Viner provided the requested records to Berry and Hess refused to meet with him in the same room or answer further questions, according to Berry's report.
2015 COMPLAINT FROM COMPETITOR
A Grand Junction funeral home filed a formal complaint about Hess with DORA in 2015, opening another case that wasn't closed until Sunset Mesa's license was surrendered in an agreement with the agency last month.
Grand Valley Funeral Homes Director T.J. Garcia filed a complaint about the handling of a woman named Noni Hawkins. He claimed there was no possible way Hess could have provided the deceased woman's legitimate cremains to her family, in a situation where she intercepted Hawkins' body, which was destined for a Front Range body donation facility.
Garcia claimed his funeral home in Grand Junction was initially hired to store and transport the Montrose woman's body to a company called Science Care in Aurora. The company accepts donated bodies for medical research at no cost to the family and makes money on charging fees to those who use the human tissues for research. The company pays for transportation, filing the death certificate, and returning cremains within three to five weeks.
Grand Valley Funeral Home personnel were driving Hawkins' body to Science Care when Hess contacted them and said the family wanted her to handle the final arrangements in transporting the body.
"Megan stated to the family and to us at Grand Valley Funeral Homes that she could do the donation and cremation of Noni Hawkins sooner than the four weeks," Garcia wrote in his letter.
Hawkins body, which made it as far as Glenwood Springs, was brought back to Grand Junction and Sunset Mesa picked it up.
More than 20 days after Hawkins died, Montrose officials called Grand Valley Funeral Homes looking for the death certificate.
Garcia reported his staff called Science Care and learned the company never received Hawkins' body, then contacted Hess, who said she still had the body at Sunset Mesa.
Grand Valley Funeral Homes contacted Hawkins family.
"A family member stated they had the ashes of Noni Hawkins," he wrote to DORA.
"How are we sure the family even received the correct remains," he wrote, concluding his letter by asking how Hess could legally operate a funeral home and body broker company in the same location.
Records obtained by DORA investigators show Sunset Mesa submitted Hawkins' blood for testing at a lab 12 days after she died. Federal laws require human tissues used for testing or education to be tested for infectious diseases, including hepatitis and HIV.
DORA notified Grand Valley Funeral Homes that it referred the case to the state attorney general's office for disciplinary action in April, after the FBI used a warrant to search Sunset Mesa, almost three years after the initial complaint.
TOO LITTLE, TOO LATE
Sunset Mesa closed its doors after the raid and DORA no longer has regulatory power over the business. The FBI has been mum on exactly what its ongoing investigation involves, though families have said they've submitted cremains for testing and the agency has taken numerous samples to its own laboratories for evidence in a possible criminal case.
More than 100 families took their loved ones' cremains to Colorado Mesa University for analysis to show whether they are bone ash or something else. Results are expected this fall.
So far, only one family involved in the Sunset Mesa case has filed a civil suit — the family of Gerald "Cactus" Hollenbeck, whose alleged cremains were tested privately at a California lab. Though testing showed the cremains were, in fact, bone ash, they were "light," a term the funeral industry uses to indicate the amount received was unusually small for the size of the person cremated. The tests also noted the cremains included small metal parts from a watch and a zipper. Hollenbeck was only wearing pajamas when he died.
The Hollenbeck family's case was one of many listed in the suspension of Sunset Mesa's license, and appears to be one of the last straws in the list of complaints against the funeral home prior to the FBI's search of the business.
The family's complaint about Sunset Mesa to DORA indicates they became suspicious when Hollenbeck's widow, Shirley, attempted to pick up his ashes 11 days after he died. Staff couldn't find them.
Later, Hess gave conflicting information about what happened as well as cryptic answers to a simple question: Did she know where Cactus was?
In a 10-minute phone conversation recorded by Diana McBride, Cactus' stepdaughter, Hess repeatedly said, "Everything will be fine," in response to questions about where his remains are located.
"I'm real helpful, though, and I've helped her the whole time along and that's why I wanted to visit with her. That's kind of my follow-up," Hess told McBride in the recorded call.
McBride asked Hess if she has a system to verify the family would get the "right person," but Hess never answered the question. She also said Hollenbeck's widow had to deal with her directly because she got a $300 discount that required special paperwork, and blamed the mix-up on her arrival to pick up the ashes earlier than expected.
Later, when Hess took what she represented as Cactus' remains to the family home, she told his widow that staff couldn't find the cremains because she had locked them in a safe.
DORA's oversight of Sunset Mesa ended when Hess agreed to surrender her license in a final agency order dated Aug. 7.
But Hollenbeck's family members said they were frustrated with DORA's lack of ability to regulate the funeral home and figure out what was going on all along.
McBride said she is "appalled" that the state would allow funeral homes to operate without an oversight agency allowed to inspect them regularly. She said the now-public complaints show the regulation was too little, too late.
"Restaurants get inspected, for goodness sake," she said. "The fact that a funeral home can be just a mom and pop thing and whoever's running it can do with it whatever they want is not OK."
DORA's powers are limited to licensing and regulating funeral homes and crematories, and though it receives complaints, it only holds administrative powers including suspending businesses from operating, revoking licenses, or levying fines for violations. According to state law, if DORA finds enough evidence to move forward with a disciplinary hearing, an administrative law judge can admonish the business, put it on probation, restrict its practice or revoke its registration.
DORA investigators needed evidence that Sunset Mesa violated the state's mortuary science code, a portion of state law that governs funeral homes and crematories. These laws dictate how they should care for bodies, disclose information and provide transparent pricing, and obtain permission from next of kin for bodies to be embalmed or cremated. Though the complaints were received by the agency, it did not possess the power to obtain some of the necessary evidence and could not inspect the funeral homes it licenses.
"Simply, the office does not have the right of entry into the business," DORA spokesman Lee Rasizer wrote in an email. "Collaborating with law enforcement often provides a basis for the issuance of a search warrant to be executed by law enforcement."
It appears this happened in the case of Sunset Mesa, because Investigator Berry included an account of what he found in the funeral home in his final report in the Hollenbeck case.
Berry accompanied FBI agents during the raid in February "in regards to its operations as a 'body broker,'" he wrote, noting that he found containers of concrete near the crematorium. He wrote he also found a 5-gallon Tidy Cat litter box with a trowel in it and a bag of labeled cremains from an Arizona mortuary.
Rasizer wrote in an email that the agency had 13 active complaints against Sunset Mesa at the time the agency negotiated with Hess to surrender the business' license to operate.
It's not clear exactly how many investigators work directly for the Office of Funeral Home and Crematory Registration, but 17 full-time investigators work under the umbrella of the Division of Professions and Occupations, according to Rasizer. The division licenses more than 50 occupations in the state — everything from accountants to plumbers.
A law passed this year makes it illegal for funeral homes and body brokers to operate under the same roof.
Colorado hasn't required licensing for funeral directors since 1982. The Colorado Funeral Directors Association has lobbied without success to restore licensing.
McBride said she's appalled, it's exasperating to see that no disciplinary action against Sunset Mesa was taken despite the complaints that piled up for years, and that things need to change.
"The reality of it is, when a loved one passes away and you are tasked with dealing with their final disposition, you assume the funeral home operates with a standard of care," McBride said. "Come to find out, that standard doesn't exist."