STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALL FAITHS FUNERAL HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3303

)

SUNNYSIDE CEMETERY and )

STATE OF FLORIDA, OFFICE )

OF THE COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, convened a public hearing in the above- styled case on November 7, 1984, at Tampa, Florida.

APPEARANCES

For Petitioner: Petitioner was not present or represented. For Respondent, William E. Allison, Esquire

Sunnyside: Post Office Box 120

St. Petersburg, Florida 33731

For Respondent, Robert C. Sprenkle, Esquire Comptroller: Office of the Comptroller

1313 Tampa Street, Suite 713

Tampa, Florida 33602

By Petition for Formal Proceedings on the Request for Transfer of Ownership of Sunnyside Cemetery dated September 4, 1984, Kenneth Montgomery, President, All Faiths Memorial Gardens, Inc., contests the proposed transfer of ownership of Sunnyside Cemetery to five funeral directors and one cemeterian. Various grounds are alleged in the petition.

Prior to the commencement of the hearing all parties except Kenneth Montgomery or other representative of All Faiths Funeral Home were present. Subsequent to the time the hearing was scheduled to commence, one of the parties, at the request of the Hearing Officer, called the office of Kenneth Montgomery to ascertain his whereabouts and reason for not being present.

Information received was that Mr. Montgomery had not been in his office this morning and his whereabouts were unknown.

This hearing was scheduled to commence at 9:00 a.m., November 7, 1984. Subsequent to 9:15 a.m. and after having received a negative response to the attempt to ascertain Mr. Montgomery's whereabouts, the Hearing Officer opened the hearing and the parties present entered appearances.

At the hearing Respondents advised that they had received a Motion for Continuance from Petitioner; however, such motion had not been received by this Hearing Officer before his departure from Tallahassee. Subsequent to my return, an undated Motion for Continuance was received with date stamp showing it was received in the Division of Administrative Hearings on November 5, 1984.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

2. As in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal. Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   349 (Fla. 1st DCA 1977). This burden, Petitioner has failed to sustain.

   
   

3. In the Motion for Continuance, Petitioner alleges that some of its proposed witnesses had a conflict on the date of the scheduled hearing with a Florida Cemetery Association meeting. Rule 28-5.210, Florida Administrative Code, governs continuances and provides in part:

   
   

   Except in cases of extreme emergency, requests for continuance must be made

   at least five (5) days prior to the date noticed for hearing.

   
   

4. The Motion for Continuance obviously did not comply with this rule and, since no extreme emergency was alleged, the late receipt of the motion would require its denial.

   
   

5. From the foregoing it is concluded that Petitioner failed to appear and present evidence to support the allegations contained in its petition, thereby failing to sustain its burden of proof. It is

RECOMMENDED that a final order be entered dismissing the petition with prejudice and approving the transfer of Sunnyside Cemetery to the applicants.

ENTERED this 14th day of November, 1984, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1984.

COPIES FURNISHED:

Kenneth Montgomery, President All Faiths Memorial Gardens 2600 Gandy Boulevard

St. Petersburg, Florida 33702

William E. Allison, Esquire Post Office Box 120

St. Petersburg, Florida 33731

Robert C. Sprenkle, Esquire Office of the Comptroller 1313 Tampa Street, Suite 713

Tampa, Florida 33602

Honorable Gerald Lewis Comptroller of Florida The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-003303

Orders for Case No: 84-003303