STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CEMETERY ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0381RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF FUNERAL ) DIRECTORS AND EMBALMERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on March 10, 1986, at Tallahassee, Florida.

APPEARANCES

For Petitioner, R. G. Maxwell, Esquire Florida Cemetery 135 Westward Drive Association: Miami Springs, Florida 33166

For Respondent, Arden M. Siegendorf, Esquire Board of Funeral Department of Legal Affairs Directors and Room 1601, The Capitol Embalmers: Tallahassee, Florida 32301

For Respondent, H. Reynolds Sampson, Esquire Department of Department of Professional Regulation Professional 130 North Monroe Street

Regulation: Tallahassee, Florida 32301

For Intervenor, Douglas L. Stowell, Esquire Florida Funeral Mang & Stowell, P.A. Directors Assn.: Post Office Box 1019

Tallahassee, Florida 32302 PRELIMINARY STATEMENT

By petition filed with the Division of Administrative Hearings on February 3, 1986, Petitioner, Florida Cemetery Association, challenged the validity of Rule 21J-15.003, Florida Administrative Code, which was adopted by Respondent, Board of Funeral Directors and Embalmers (Board). Petitioner alleges that the rule is an invalid exercise of delegated legislative authority.

At final hearing Petitioner called no witnesses and offered no exhibits.

The Board called R. C. Blanton, Jr. and Ronald Giddens as witnesses. The Board

offered Exhibits 1-3, and they were received into evidence. Intervenor, Florida Funeral Directors Association, called James Wylie, Jr. and Lowell Hooper as witnesses. Intervenor offered no exhibits.

The parties waived their right to submit proposed findings of fact and conclusions of law.

PROCEDURAL MATTERS

At the commencement of hearing, the Hearing Officer considered the motion of Respondent, Department of Professional Regulation (Department), for the entry of an order dismissing it from these proceedings, the petition of Florida Funeral Directors Association for leave to intervene, the ore tenus motion of Petitioner to add Vista Funeral Home, Inc., as a party petitioner, and the motion of the Board and Intervenor to dismiss the petition for lack of standing. Upon consideration, it was ordered that:

1. The Department's motion to dismiss it from these proceedings is granted.

   
   

2. The petition of Florida Funeral Directors Association for leave to intervene is granted.

   
   

3. The Petitioner's motion for leave to join Vista Funeral Home, Inc., as a party petitioner is denied.

   
   

4. Ruling on the motion of the Board and Intervenor to dismiss the petition for lack of standing is deferred until entry of the Final Order.

   
   

   FINDINGS OF FACT

   
   

5. In the face of resistance to its standing, Petitioner presented no evidence. Accordingly, the record is devoid of any proof that a substantial number of its members are "substantially affected" by the challenged rule, that the subject matter of the rule is within the association's general scope of interest and activity, and that the relief requested is of a type appropriate for a trade association to receive on behalf of its members.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Petitioner, pursuant to Section 120.56, Florida Statutes, challenges the validity of Rule 21J-15.003, Florida Administrative Code. Pertinent to this proceeding, Section 120.56(1), Florida Statutes, provides:

   
   

   Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legis- lative authority. (Emphasis Added)

   
   

8. When standing is resisted, as it is in this proceeding, the burden is upon the challenger of the rule to prove standing. State, Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979)

9. Chapter 120, Florida Statutes, does not attempt to define "substantially affected". The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in-fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type or nature which the proceeding is designed to protect (the "zone of interest").

   
   

10. Where, as here, an association institutes a rule challenge on behalf of its members, it can be accorded standing only when it demonstrates that a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule, the subject matter of the rule is within the association's general scope of interest and activity, and, the relief requested is of a type appropriate for a trade association to receive on behalf of its members. Florida Home Builders Assoc. v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

    
    

11. The petitioner association has failed to allege or prove standing. The association's petition fails to demonstrate standing since it fails to set forth facts from which it could be reasonably concluded that a substantial number of its members are "substantially affected" by the challenged rule and the subject matter of the rule is within the association's general scope of Interest and activity. Florida Home Builders Assoc. v. Department of Labor and Employment Security, supra. In the face of resistance to its standing, the association offered no evidence at final hearing. Accordingly, the association failed to carry its burden to prove standing. State, Department of Health and Rehabilitative Services v. Alice P., supra. Absent standing, there is no basis to address the merits of Petitioner's challenge.

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the petition of Florida Cemetery Association is dismissed with

prejudice.

DONE and ORDERED this 13th day of March, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1986.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

R. G. Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

R. C. Blanton, Exec. Director

Board of Funeral Directors and Embalmers

111 East Coastline Drive Room 507

Jacksonville, Florida 32202

Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

Arden M. Siegendorf, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Douglas L. Stowell, Esquire Mang & Stowell, P.A.

Post Office Box 1019 Tallahassee, Florida 32302

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled, to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, first district, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 86-000381RX

Orders for Case No: 86-000381RX