More than two years after pleading guilty to misdemeanor charges of misconduct while running his Cazenovia funeral home, Brian Tait is back in court again.
This time, he is the petitioner, bringing suit against the state Department of Health for reneging on what Tait claims was an approved deal regarding the suspension of his funeral directing license. Rather than a six-month suspension, the state is now looking to revoke his license altogether and decertify his funeral home.
Attorneys for Tait and the DOH appeared in state supreme court Thursday morning, March 5, to argue their cases in front of Judge Hugh A. Gilbert.
Tait, 50, of Cazenovia, owner of Tait Funeral Home at 2333 Fenner Road, was accused by multiple female former employees in 2011 of subjecting them to inappropriate physical exams. He pleaded guilty in July 2012 to misdemeanor sexual abuse and endangering the welfare of a child, both misdemeanors, and was sentenced to three years of probation beginning in September 2012.
Independent from the criminal case, the DOH has the authority to regulate funeral directing licenses and, in September 2013, Tait was informed that the department was investigating him. In July 2014, after negotiating with the DOH, Tait announced on his funeral home’s website that he had reached an agreement with the department in which his license to practice as a funeral home director would be suspended for six months. Under the agreement, no further administrative actions would be taken against him by the department.
In October 2014, the DOH filed notice that it had “opted to pursue” a complete revocation of Tait’s funeral director’s license and funeral home certification. The hearing was set for Nov. 10, 2014, at the DOH regional office. After Tait received this correspondence, he retained counsel and the hearing was adjourned until Feb. 24, 2015.
Tait filed an article 78 suit against the DOH in January 2015, asking the court to enforce the previous agreement and that any DOH administrative proceedings be stayed pending the outcome of that suit.
During the March 5 arguments in state supreme court in the Onondaga County Courthouse, Tait’s attorney, Steven Ward Williams, of the Smith Sovick law firm, argued that Tait had a “binding agreement” with a senior DOH attorney on the six-month license suspension, and after nine months of negotiations and an extensive correspondence, “it’s clear from the papers … there was an agreed settlement.”
Assistant Attorney General Patricia M. Bordonaro argued for the state that the case should be dismissed because the DOH senior attorney who agreed to the deal had no authority to do so and only the commissioner of the Department of Health himself could authorize such an agreement.
“The Department of Health did not make an offer of settlement,” Bordonaro said. “It was never final, never signed, never agreed to.”
She said the DOH general counsel rejected the settlement proposal based on “a number of policy grounds” and instead chose to seek revocation his Tait’s personal license and his funeral home certification.
Under DOH regulations, Tait would be able to argue against that decision in a DOH administrative hearing, and this is the process that should be allowed to occur, she said. If Tait is not happy with the administrative outcome, then he is free to bring an Article 78 proceeding in state court, Bordonaro said.
Williams argued that to allow the DOH to make a deal and then renege on that deal, citing that only the commissioner can take such actions, would send a signal to the entire state that nobody should ever negotiate with anyone in the DOH “unless you talk directly to the director.” He said if this were allowed to stand, then state agencies would be able to offer deals and renege later “because of political issues.”
Bordonaro asked the judge for more time to submit additional paperwork in the case because Tait’s attorneys had submitted information the day before the hearing, on March 4, and she wanted to respond. Gilbert agreed to the request, saying he had not yet read the March 4 submissions from Williams and wanted time to do that as well.
Gilbert agreed to give Bordonaro two weeks in which to submit her additional paperwork. After that, Gilbert will review the files and can then either issue a decision on the case or schedule another hearing, according to both Bordonaro and Williams.
Gilbert’s decision has no time limit, and could come days, weeks or even months after he receives all the paperwork, Williams said.
“I thought it went well,” Williams said after the hearing. “You just don’t know” how the judge will decide.
Bordonaro said she could not comment on the case.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at [email protected].
