STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TOALE BROTHERS, INC., AND BROWN ) FUNERAL HOME, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 88-3574
) GIBRALTAR MAUSOLEUM, INC., AND ) DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came before the undersigned on Respondent, Gibraltar Mausoleum, Inc.'s, (Gibraltar), Motion To Dismiss For Lack Of Standing. A hearing was held in Tallahassee, with counsel for the Department of Banking and Finance, Division of Finance, (Department) present by telephone, on October 17, 1988, attended by counsel for all parties and the undersigned. At that hearing, Petitioners were afforded additional time to submit their Memorandum in Opposition to the Motion. The memorandum was filed with the Division of Administrative Hearings, (DOAH) on October 28, 1988, and on November 1, 1988, Gibraltar filed its response thereto.
Gibraltar has filed for approval by the Department, under section 497.007, Florida Statutes, to acquire Mansion Memorial Park, Inc., (Mansion), a Florida cemetery corporation located in Ellenton, Florida. Ellenton is located north of Sarasota, in Manatee County, slightly northeast of Bradenton. Petitioners, Toale Brothers, Inc., (Toale) , and Brown Funeral Home, Inc., (Brown), are licensed funeral homes located in Sarasota and Bradenton, respectively.
On June 17, 1988, the Department issued a letter of intent to approve the transfer of ownership of Mansion to Gibraltar, and on July 8, 1988, Toale and Brown filed a Petition For Formal Proceeding protesting the approval.
Petitioners allege that Gibraltar owns Manasota Memorial Park, Inc., (Manasota), and that the officers of Gibraltar and Manasota are the same. Petitioners also allege, and Gibraltar admits, that Manasota has been improperly advertising itself as a funeral home and selling pre-need funeral services when it is not licensed as a funeral home authorized to engage in such sales. Gibraltar has stipulated that Manasota was engaged in the unauthorized activity and is either engaged in or has completed negotiations with the Office of the Insurance Commissioner for the entry of a Cease and Desist Order directed to those practices. There is no evidence to indicate, nor do Petitioners allege in their Petition, that Gibraltar will, through Mansion, engage in unauthorized activity in the future as Petitioners claim will happen if the same individuals are alleged to acquire Mansion.
Petitioners allege further that by virtue of its ownership of Manasota, the applicants, operators of Gibraltar, "lack the required character, reputation, and business qualifications of a new proponent, as required by
F.A.C. Rule 3D-30.017(4)(a)."
On October 13, 1988, Gibraltar filed a Motion To Dismiss For Lack Of Standing, claiming that the responsibility to conduct a qualification examination of an applicant and to rule on its fitness rests with the Department, not with alleged economic competitors who "do not have substantial interests threatened by a sufficient immediate injury of a type against which this proceeding is designed to protect." Gibraltar alleges further that the Petition has been filed solely for the purpose of "delay and to obtain unfair economic and competitive advantage."
In their Memorandum In Opposition Of [sic] Respondent's Motion To Dismiss For Lack of Standing, filed on October 28, 1988, Petitioners contend that to allow Gibraltar "to avoid the scrutiny afforded by this proceeding is an abuse of the administrative process and contrary to the intent of the applicable statutes and rules thereunder pertaining to this issue." They claim the two issues involved here relate to (1) whether Gibraltar's "illegal" activity was revealed to the Department during its investigation, and (2) whether Gibraltar is qualified under the statute and rules to control any cemetery.
Petitioners assert they have standing under three separate and distinct grounds:
The Department's rules entitle them access to this proceeding,
Their substantial interests will be affected, and
The Department allowed them access.
Gibraltar responded to that memorandum on November 1, 1988, indicating that since it filed its application for cemetery transfer, it should be the Petitioner with Toale and Brown as Respondents. This argument is without merit. "Petitioners" are defined at Rule 3-2.022, F.A.C., as persons already subject to departmental jurisdiction and control who seek permission to effect some change in present authority. Here, Gibraltar does not seek to change authority. It applied for a transfer and the Department agreed. Toale and Brown resist that application and under Rule 3-2.026, F.A.C., should be classified as "Protestants." The distinction, however, is immaterial here since under Rule 3- 2.020, F.A.C., both are classified as "parties" to proceedings before the Department. Whereas, however, Toale and Brown consider this latter rule as giving them some standing to file either a Protest or a Petition, it clearly does not do that. Only if they have standing through some legitimate basis therefor can they file and be classified as a party, regardless of the name.
Neither does Rule 3-7.004, F.A.C. confer standing. That rule pertains to "Formal Proceedings" and in no way relates to the standing of parties. Consequently, it is found that nothing in the statute or the rules pertinent to this proceeding grant Toale or Brown standing as a matter of right even though pursuant to Section 120.52(11)(b) & (c), Florida Statutes, under some circumstances an agency rule can create a right of participation. That is not the case here. Boca Raton Mausoleum Inc., v. Department of Banking and Finance,
511 So.2d 1060, 1065, (Fla. 1DCA 1987). Nor is the fact that the Department referred the Petition to DOAH determinative of standing. Only, therefore, if Petitioners/Protestants can clearly show substantial interest in the proceeding
can they be held to have standing to protest the approval of Gibraltar's application.
Under the provisions of Subsection 497.007(2), Florida Statutes, a person who seeks to purchase or acquire control of an existing cemetery must seek the approval of the Department by application thereto. Thereafter:
The department shall issue a certificate of approval only after it has conducted an investigation of the applicant and determined that the proposed new owner is qualified by character, experience, and financial responsibility to control and operate the cemetery in a legal and proper manner.
Pursuant to legislative fiat, the Department promulgated Rule 3D- 30.017, F.A.C. which relates to "Procedures for Licensing Transferred Cemeteries" and which provides guidelines for application, supporting data thereto, conditions, investigations, issuance of licenses, and denial of licenses. Rule 3D-30.017(5), F.A.C. provides:
If the department finds that the proposed
... owners of the existing cemetery company [have] in good faith complied with all lawful requirements, it shall issue a new cemetery license.
Both counsel for Petitioners and for Gibraltar have filed memoranda on the subject of standing. Generally, access to administrative hearing, unless specifically provided for by rule or statute, is provided to those who allege injury in fact caused by the agency action and who fall within the "zone of interest" protected by the licensing agency. Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478, (Fla. 1DCA 1981). Economic competitors may be allowed access if the Petition alleges facts sufficient to establish a substantial impact on existing facilities and competitors. Further, the injury must be one which proceedings pursuant to the [Cemetery] act is intended to protect. Boca Raton Mausoleum, supra.
The Department has conducted its investigation into the propriety of this transfer as required by Rule 3D-30.017, F.A.C. and has concluded that Gibraltar meets the requirements for licensure to acquire the cemetery in question. Department counsel affirmed at hearing that the Department was aware of the negotiations between Manasota and the Insurance Commissioner regarding the unauthorized activity and was nonetheless satisfied the applicant met the test set out by both statute and rule. It is the responsibility of the Department, not the public or alleged competitors, to police the cemetery profession and determine the appropriateness of individual ownership. This it has done, and only those with legitimate standing to contest this function can be heard in the process.
In this case, the cemetery in question is not a new facility. It is and has been in operation and any competition to the activities of the Petitioners already exists. There is no showing that Petitioners have complained of existing competition by Mansion in the past. No new service has been shown to be contemplated or offered as a result of the transfer if effected. Albeit Manasota was engaged in unauthorized activity which
conceivably could have been construed as competition, it appears this activity has ceased and will not be continued. The allegation that because the officers of Manasota are the officers of Gibraltar and would, therefore, most likely be the officers of Mansion, thereby increasing the risk of unauthorized activity by Mansion which would substantially impact on Petitioners, is speculative at best and certainly not sufficient to raise a reasonable possibility of competitive damage.
Mansion is a cemetery company as are Gibraltar and Manasota. Petitioners are funeral directors who do not provide the same service as that provided by the cemeteries. Their operations are more supportive of each other than competitive.
Petitioners have shown nothing in either their Petition or their subsequent responses and memoranda filed herein which supports their standing as a party under any basis for standing. Ordinarily, the appropriate resolution of this issue would be the issuance of an Order of Dismissal with leave to amend to allow Petitioners to make further factual allegations to establish standing. Here, however, based on an analysis of the pleadings and supporting documents, it is clear that the likelihood of Petitioners being able to sufficiently amend their pleadings so as to support their standing herein is too remote. Consequently, continuation of this matter for the purpose of what would be a clearly futile attempt to generate a showing of standing would be unreasonable and unfair to the parties whose legitimate business operations have been interrupted hereby.
Based on the foregoing, it is, therefore:
RECOMMENDED that the Department of Banking and Finance, Office of Comptroller, enter a Final Order herein dismissing with prejudice Petitioners' Petition For Formal Hearing and issuing approval to Gibraltar Mausoleum, Inc., to acquire ownership of Mansion Memorial Park, Inc.,
RECOMMENDED this 7th day of November, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 7th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4097
Rulings on proposed findings of fact submitted by Petitioner:
Paragraph 1 is accepted as addressed in finding of fact paragraphs 4 and 17.
Paragraph 2 is accepted to the facts set forth but is insufficient, as a matter of law, to establish a violation.
Paragraph 3 is accepted.
Paragraph 4 is rejected as commentary or argument without an appropriate factual basis.
Paragraph 5 is accepted as to the facts.
Paragraph 6 is accepted as to facts but, again, as a matter of law, is insufficient.
Paragraph 7 is rejected for the reasons explained in the conclusions of
law.
Paragraph 8 is rejected as argumentative.
Paragraph 9 is rejected as contrary to the evidence presented. 10.
Paragraph 10 is accepted to the extent the parties agree the window exists. Rulings on Respondent's proposed findings of fact:
Paragraph 1 is accepted.
Paragraph 2 is rejected as contrary to the weight of the evidence presented.
Paragraph 3 is accepted.
Paragraph 4 is rejected as contrary to the weight of the evidence presented.
Paragraph 5 is accepted.
Paragraph 6 is rejected as contrary to the weight of the evidence presented.
Paragraph 7 is accepted.
Paragraph 8 is accepted.
Paragraph 9 is rejected as contrary to the weight of evidence presented.
Paragraph 10 is accepted.
Paragraph 11 is accepted.
COPIES FURNISHED:
Bruce Culpepper, Esquire Haben & Culpepper, P. A. Post Office Box 10095 Tallahassee, Florida 32302
Douglas L. Stowell, Esquire
315 S. Calhoun Street, Suite 350 Tallahassee, Florida 32301
Paul C. Stadler, Jr., Esquire Assistant General Counsel Office of the Comptroller
The Capitol, Suite 1302 Tallahassee, Florida 32399-0350
William W. Byrd, Esquire
Park Trammel Bldg., Suite 614 1313 Tampa Street,
Tampa, Florida 33602-3394
| Issue Date | Proceedings |
|---|---|
| Nov. 07, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 30, 1988 | Agency Final Order | |
| Nov. 07, 1988 | Recommended Order | Funeral director who does not provide internment plots has no standing to contest cemetery co's purchase of another cemetery company |
