STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHOLIC CEMETERIES OF THE ) ARCHDIOCESE OF MIAMI, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3851

) FLORIDA CEMETERY ASSOCIATION, ) INC., and SOUTH DADE PALMS )

MEMORIAL PARK, INC., )

)

Respondents. )

)

and )

) DADE SOUTH MEMORIAL PARK, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 8, 1991, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner,

Catholic Cemeteries: J. Michael Fitzgerald, Esquire

Yvonne A. Tamayo, Esquire Fitzgerald and Portuondo

150 West Flagler Street Museum Tower, Suite 2701 Miami, Florida 33130

For Respondent, Florida Cemetery

Association: Ross A. McVoy, Esquire Fine Jacobson Schwartz Nash Block & English

215 South Monroe Street Suite 804

Tallahassee, Florida 32301-1859

For Respondent, South Dade Palms Memorial Park, Inc., and for Intervenor Dade South Memorial

Park, Inc.: Robert G. Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

For the Department of Banking and

Finance: Paul Stadler, Jr., Esquire Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350 STATEMENT OF THE ISSUES

By means of a Petition For Declaratory Statement dated August 12, 1988, and filed on or about August 17, 1988, the Petitioner, Catholic Cemeteries of the Archdiocese of Miami, Inc., requested a declaratory statement by the Comptroller to the effect that the Petitioner could "expand its cemetery operations in Dade and Broward Counties without being subject to the licensure provisions of Chapter 497 of the Florida Statutes." The basic issues to be resolved are: (a) whether the issues on which the Petitioner seeks a declaratory statement are appropriate for disposition by means of a declaratory statement and (b), if appropriate for disposition by declaratory statement, is the Petitioner's proposed expansion of its cemetery operations subject to or exempt from the licensure provisions of Chapter 497, Florida Statutes.

PRELIMINARY STATEMENT

This case had its genesis in the filing of a Petition For Declaratory Statement on or about August 17, 1988, in which the Petitioner sought a declaration by the Comptroller that a proposed expansion of the Petitioner's cemetery operations in Dade and Broward Counties was exempt from licensure under Chapter 497, Florida Statutes. 1/ On January 30, 1989, the Comptroller issued a documented titled "Response To Petition For Declaratory Statement," which purported to be a Final Order addressing the merits of the subject Petition For Declaratory Statement. In that order the Comptroller "declared" that the Petitioner's proposed expansion of its cemetery operations in Dade and Broward Counties was exempt from regulation under Chapter 497, Florida Statutes. Notice of the issuance of the Response To Petition For Declaratory Statement was published in the Florida Administrative Weekly of February 10, 1989. The Respondents, and others no longer involved in this litigation, became aware of the issuance of the Response To Petition For Declaratory Statement and, because it appeared to them to affect their substantial interests, on March 1, 1989, they filed an appeal of that order in the First District Court of Appeal. 2/

On April 18, 1989, the Respondents in this case filed a Motion For Remand with the First District Court of Appeal and on June 13, 1989, the court issued an order reading as follows:

As appellee [the Department of Banking and Finance] has no objection, appellants' motion for remand, filed April 18, 1989, is granted.

This cause is remanded to the lower tribunal for further proceedings pursuant to Sec.

120.57(1), Florida Statutes. The appeal shall stand dismissed.

Following the remand to the Department of Banking and Finance, in order to clarify the issues to be heard, the Comptroller issued an order of June 22, 1989, requiring the Respondents to file a petition for hearing within twenty-one days from the date of the order, "explicitly stating all disputed issues of fact." On or about July 12, 1989, the Respondents filed a Petition For Formal Administrative Hearing.

By letter dated July 19, 1989, the Comptroller referred this proceeding to the Division of Administrative Hearings and requested that a Hearing Officer be assigned to preside over the proceeding. The referral letter concluded with a request that "de novo consideration be given by the Hearing Officer of all factual and legal issues raised in this proceeding." On or about August 24, 1989, a Petition To Intervene was filed on behalf of Dade South Memorial Park, Inc. On or about August 24, 1989, a Motion For Leave To Amend Petition and a "Conformed Petition For Formal Administrative Hearing" were filed by the Respondents.

At the formal hearing on March 8, 1991, the parties filed a Prehearing Stipulation in which they stipulated to numerous facts and other matters. All parties participated in the formal hearing and offered evidence in support of their respective positions. At the conclusion of the formal hearing the parties requested and were granted 20 days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript of the formal hearing was filed with the Hearing Officer on March 18, 1991.

Thereafter, at the request of the parties, the time for filing proposed recommended orders was extended until April 15, 1991. All parties timely filed their post-hearing submissions as follows: The Petitioner filed a proposed recommended order (titled "Order") which included proposed findings of fact and conclusions of law. The Respondent Florida Cemetery Association, Inc., filed a proposed recommended order which included proposed findings of fact and conclusions of law. The Respondent South Dade Palms Memorial Park, Inc., and the Intervenor Dade South Memorial Park, Inc., filed a memorandum of law containing argument in support of the proposed recommended order filed by the Florida Cemetery Association, Inc. The Department of Banking and Finance filed a proposed recommended order (titled "Brief of the Department") which included proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in Appendix No. 2 attached to this Recommended Order.

FINDINGS OF FACT

Stipulated facts

1. In their prehearing stipulation, the parties stipulated to the following facts:

   
   

   1. Our Lady of Mercy Catholic Cemetery in Dade and Our Lady Queen of Heaven Catholic Cemetery in Broward were both owned and operated or dedicated by the Catholic Church prior to June 23, 1976. The Petitioner does

      not own sufficient land contiguous to the present existing cemetery operations to allow expansion.

      
      

   2. The title to the cemeteries presently operating in both Broward and Dade to-wit Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is in Archbishop Edward A. McCarthy and the Catholic Cemeteries is the corporation in which the Archbishop is the sole member and this corporation was formed for the expressed purpose of operating the cemeteries.

      
      

   3. The alternate sites proposed by the Catholic Cemeteries to-wit Our Lady of Mercy South approximately 115 acres in size and Our Lady Queen of Heaven West approximately 115 acres in size were neither owned, operated nor dedicated by the Catholic Church prior to June 23, 1976.

      
      

      The petitioner wishes to develop those alternate parcels of land for cemetery opera- tions and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner.

      
      

   4. The existing Catholic cemeteries and the proposed alternate sites, if approved, will provide full at-need and pre-need cemetery products and services, including ground, urn and mausoleum burial, vault and memorial sales and installation, opening and closing,

      etc., as well as appropriate Catholic rituals, as required by church law and teaching.

      
      

   5. The approximate gross dollar sales of

      pre-need and at-need services and merchandise for 1989 was 4 1/2 million dollars. There is about a 10% increase in gross dollar sales for each succeeding year over the previous year.

      
      

   6. Members of the Catholic faith are buried in virtually every cemetery in Dade and Broward counties, except those that limit burials to members of a particular religious faith.

      
      

   7. Forest Lawn South is a licensed for profit cemetery located at 21401 Southwest 64th Street, Fort Lauderdale, Florida (305)792-9360, is approximately six (6) to seven (7) miles east of the proposed Broward

      County expansion and approximately nine (9) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial.

      
      

   8. Pinelawn Cemetery is a licensed for profit cemetery located at 13900 Southwest 117th Avenue, Miami, Florida (305)446-2922, is approximately five (5) miles east of the proposed Dade County expansion and approxi- mately ten (10) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial.

      
      

   9. Woodlawn Park South is a licensed for profit cemetery located at 11600 Southwest 112th Street, Miami, Florida (305)238-3672, is approximately five (5) miles northeast of the proposed Dade County expansion and approximately eleven (11) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial.

      
      

   10. It costs a minimum of $459,647.00 annually to maintain the developed acreage at both Our Lady of Mercy Cemetery and Our Lady Queen of Heaven Cemetery.

       
       

   11. At the time of purchase of Our Lady of Mercy, the purchase was for 256 acres and in 1972, 128 acres were sold leaving a 128 acre cemetery of which 61 acres remain undeveloped.

       
       

   12. Our Lady Queen of Heaven Cemetery in Broward County was 120 acres in size of which

       65 acres remain undeveloped.

       
       

   13. The approximate distance between the existing cemetery Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is approximately 20 miles.

       
       

   14. The distance between each of the existing cemeteries and the proposed alternate sites on a straight line is approx- imately 10 miles. The distance, driving by car, using the shortest reasonable route, is

       17.5 miles between Our Lady of Mercy and the proposed South Dade site, and 16.3 miles between Our Lady Queen of Heaven and its proposed Davie (Broward) site.

       
       

   15. The Archdiocese of Miami covers all of Dade, Broward and Monroe Counties and the Archdiocese considers the area of service to cover the entire Archdiocese.

   16. The Archdiocese of Miami by and through its agent Catholic Cemeteries has not applied for a license for either of the proposed alternate sites.

       
       

   17. Lakeside Memorial Park, a private commercial cemetery restricted to Jewish burials is licensed by the Division of Finance, Department of Banking and Finance and is not operated, owned or controlled by any church or synagogue.

       
       

   18. Woodlawn Park, an old established private, commercial licensed cemetery in Miami, desired to expand to a separate location more than ten (10) miles away. A separate license to operate that extension cemetery known as Woodlawn South was issued. At the time of licensure of Woodlawn South, a separate corporation from Woodlawn Park, the majority of stock of both corporations was held by the Sharp family. However, the minority stockholders were different.

       
       

   19. The holding company owning Miami Memorial Park, Flagler Memorial Park and Dade Memorial Park was issued a separate license for its expansion cemetery known as Dade South Memorial Park. None of these cemeteries are owned, operated or controlled by churches or synagogues.

       
       

   20. There are existing, unlicensed church cemeteries which are exempt under Sec. 497.003, F.S.

       
       

   21. If such expansions of cemeteries grandfathered pursuant to Sec. 497.004, F.S., have occurred, the Department would not have required these expansions to obtain a license if such expansions were on contiguous property separated by no more than a road. However, it is the established and enforced policy of the Department of Banking and Finance, Division of Finance, to require separate application and proof of need for each proposed cemetery site which is not contiguous to an existing licensed

       cemetery.

       
       

   22. In determining need, the Department compares the number of available spaces with the projected burials over a thirty year period.

   23. The Memorial Sunset Park case is on appeal to the First District Court of Appeal (Tallahassee).

       
       

   24. The issue of whether there is a need for these alternate parcels pursuant to Sec.

       497.006 is not an issue in this case. The Catholic Cemeteries has not applied for a license and, in fact, takes the position that it is a violation of the religion clauses to require it to apply for such an application and that its alternate parcels are exempt from regulation.

       
       

   25. Petitioner acknowledges that should Petitioner in the future file an application for license, thus requiring a showing of need, said proceeding will be a de novo hearing.

       
       

       Additional facts established at hearing.

       
       

2. South Dade Palms Memorial Park in Dade County, which operates Palms Memorial Park, provides for the burial of persons of all faiths, including those of the Roman Catholic faith. The rites of the Roman Catholic Church are conducted both on the cemetery grounds and in the mausoleum chapel when appropriate. The cemetery has in the past and presently is accepting Roman Catholics for burial, and will continue to do so in the future.

   
   

3. Memorial Sales, Inc., which operates Miami Memorial Park, Flagler Memorial Park, Dade Memorial Park, and Dade South Memorial Park (which is 9.5 driving miles from the Dade Alternate Parcel) provides for the burial of persons of all faiths, including those of the Roman Catholic faith. Each of these cemeteries has in the past and presently are accepting Roman Catholics for burial, and will continue to do so in the future. All rites of the Roman Catholic Church may be performed at graveside or at any structure available on the cemeteries for such purposes.

   
   

4. The Department of Banking and Finance, through its Division of Finance, has inspected the cemeteries known as Our Lady of Mercy and Our Lady Queen of Heaven. The inspection revealed that the cemeteries are maintained in immaculate condition by Catholic Cemeteries, Inc.

   
   

5. Catholic Cemeteries, Inc., possesses the only cemeteries in Dade and Broward Counties that exclusively furnish burial services to Catholics. Only persons of the Catholic faith and their families are buried in cemeteries operated by Catholic Cemeteries, Inc.

   
   

6. Catholic Cemeteries, Inc., previously engaged an independent contractor, E.C. Wesner and Associates, Inc., of Margate, Florida, to sell pre- need cemetery burial rights and merchandise for the existing cemeteries operated by Petitioner.

   
   

7. The authority and personal responsibility of Archbishop McCarthy for the Catholic Cemeteries are set by the Code of Canon Law, which is promulgated under the authority of the Pope. The Archbishop is personally charged with

   maintaining, under Church law, the appropriate norms on the discipline to be observed in cemeteries, especially with regard to protecting and fostering their sacred character. 3/

   
   

8. In the cemeteries operated by Catholic Cemeteries, Inc., religious services are frequently held at the grave sites, and all of the cemeteries have altars and religious shrines located throughout the cemetery grounds where members of the Catholic Church come to pray seven days a week. Additionally, the cemeteries celebrate Catholic Mass on the premises each year during Memorial Day and All Souls' Day and on other significant days in the liturgical life of the Catholic Church. Catholic Cemeteries, Inc., does not sell cemetery lots. Rather, Catholic Cemeteries, Inc., sells licenses for entombment. Because of the important role of the cemeteries in the Roman Catholic religion, the availability of those licenses is limited to Members of the Catholic Church and their family members.

   
   

9. Pursuant to the Code of Canon Law, Catholic cemeteries are sacred places to be used for worship and burial of members of the Roman Catholic Church. Such services are conducted according to the official rites of the Church. The Catholic cemetery, like the parish church, is an important part of Catholic life and religious practice. Catholic Cemeteries, Inc., is a religious institution and constitutes an integral part of the religious mission of the Catholic Church.

   
   

10. The religious practices and beliefs of Petitioner are of great importance to Petitioner and should be accorded the utmost respect. According to Guidelines for Funeral Rites in the Catholic Church (hereinafter "Guidelines"), "the preferred place for the burial of Catholics is a Catholic cemetery." However, there are at least four "circumstances [which] have for some time permitted burial of Catholics in a non-Catholic cemetery even where Catholic cemeteries are available. . . . Other circumstances of a pastoral nature [justifying the burial of Catholics in a non-Catholic cemetery] may exist in various areas of the country." Accordingly, it is not impermissible for Catholics to be buried in non-Catholic cemeteries, provided the individual grave site has been appropriately blessed. This flexibility by the Catholic Church in accommodating parishioners is evidenced by the stipulated fact that members of the Catholic faith are buried in virtually every cemetery in Dade and Broward Counties, except those that limit burials to members of a particular religious faith.

    
    

11. The Petitioner has previously attempted to challenge the constitutionality of Chapter 497, Florida Statutes, in a federal court proceeding. That challenge was dismissed for lack of standing.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. 4/

    
    

13. Section 120.565, Florida Statutes, reads as follows:

    
    

    Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory

    provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only.

    The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly, except that educational units shall give notice in the same manner as provided for rules in s.

    120.54(1)(a), and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action.

    
    

14. The rules of the Department of Banking and Finance concerning the filing and disposition of petitions for declaratory statement are found at Chapter 3-6, Florida Administrative Code. The pertinent portions of those rules read as follows:

    
    

    3-6.001 Purpose and Use of Declaratory Statement. A declaratory statement is a means for resolving a controversy or answering questions or doubts concerning a statutory provision, department rule or order as it does, or may, apply to a petitioner's particular circumstances only. The potential impact upon petitioner's interests must be alleged in order for petitioner to show the

    existence of a controversy, question or doubt.

    
    

    3-6.002 Petition.

    (1) Any person may seek a declaratory statement as to the applicability of a statutory provision, department rule or order to the petitioner's particular set of circumstances only.

    * * *

    
    

    3-6.0021 Discretion to Issue Declaratory Statement. The department may decline to resolve a question presented to it by a petition for declaratory statement in appropriate circumstances. Such appropriate circumstances may include one or more of the following:

    1. The petition filed does not meet the procedural requirements of Chapter 3-6, Florida Administrative Code,

    2. The party seeking the ruling has not demonstrated standing, or that there is a bona fide, actual, present, practical need for the declaratory statement,

    3. The questions posed are presently pending in other proceedings,

    4. The issues raised have become moot, (5)The questions posed or fact presented are insufficiently specific or overbroad,

    1. The issues involved turn on particular facts which cannot be predicted or adequately described in advance.

    2. Resolution of the petition for declaratory statement could determine the legal rights of other persons who have not filed such a petition, or

    3. The questions posed are not within the authority of the department.

    
    

    3-6.003 Disposition.

    
    

    * * *

    
    

    (2) Unless otherwise indicated, the provisions of Section 120.57, F.S. and Chapter 3-7, F.A.C., shall apply in the event that a person whose substantial interests may be affected by the proceedings files a petition for hearing or on the department's own initiative, should the department conclude that such a hearing is necessary to further develop or clarify the legal or factual issues to be resolved.

    
    

15. The Department of Banking and Finance, Division of Finance, regulates Florida cemeteries pursuant to Chapter 497, Florida Statutes.

    
    

16. Section 497.005(2), Florida Statutes, defines the term "cemetery" as:

    
    

    . . . a place dedicated to and used or intended to be used for the permanent inter- ment of human remains. A cemetery may contain land or earth interment; mausoleum, vault, or crypt interment; a columbarium or other structure or place used or intended to be used for the interment of cremated human remains; or any combination of one or more of such structures or places.

    
    

17. Section 497.003, Florida Statutes, reads as follows, in pertinent part:

    
    

    1. This chapter and all rules adopted pursuant to this chapter shall apply to all cemeteries except for:

       1. Church cemeteries of less than 5 acres which provide only single-level ground burial.

          * * *

          (d) Cemeteries owned and operated or dedicated by churches prior to June 23, 1976.

    2. Section 497.061 applies to all cemeteries in this state. (Emphasis supplied).

18. Section 497.006(1), Florida Statutes, contains the clear mandate that: "No person shall operate a cemetery without first obtaining a license from the department, unless specifically exempted from this chapter. (Emphasis supplied).

    
    

19. The declaratory statement statute, Section 120.565, Florida Statutes, has not been addressed by the Florida appellate courts with any great deal of frequency. The state of the law regarding many issues touching on the proper scope and use of declaratory statements might best be described as unsettled. 5/ The latest, but hopefully not the last, case containing any extensive discussion of the proper scope and use of Section 120.565, Florida Statutes, is Florida Optometric Association v. Dept. of Professional Regulation, Bd. of Opticianry,

    567 So.2d 928 (Fla. 1st DCA 1990), where, beginning at page 936, the court expressed the following views:

    
    

    In McDonald v. Department of Banking and Finance, 346 So.2d 569, 577 (Fla. 1st DCA

    1977), we said,

    
    

    Except when an agency acts by formal rulemaking (Section 120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section 120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section 120.57.

    
    

    McDonald, 346 So.2d at 577 (emphasis supplied). This language, which is followed by a discus- sion of the right of persons whose substantial interests are affected by agency action to a

    120.57 hearing, means that Section 120.57 is generally not implicated in proceedings under Section 120.565. When a petition for declara- tory statement is limited to a narrow question "as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only,"

    Section 120.565 (emphasis supplied), there will normally be no person, other than the petitioner, who will be affected by the declaratory statement.

    Since a person who submits such a petition has no right to a 120.57 hearing on his petition, and since no one other than the petitioner will normally be affected by the declaratory statement, Section 120.57 is simply not appli- cable. However, where the question presented by the petition is not narrowly drawn, the substantial interests of other parties may be implicated. In the present case, the question presented clearly had the potential for affecting the substantial interests of persons other than the petitioners, and those persons were entitled to a clear point of entry to proceedings under Section 120.57. Therefore, it was the expansive nature of the question

    presented in the petition for the declaratory statement under review which made Section

    120.57 and Rule 28-5.111 applicable.

    
    

    For their final point on appeal, the optom- etrists argue that the declaratory statement is invalid, because it addresses a question of general applicability, which should properly be addressed only by rule. Section 120.52(16), Florida Statutes, provides that a "rule," subject to certain exceptions not applicable here, is "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency. "

    (Emphasis supplied). Conversely, Section 120.565, Florida Statutes, provides that a declaratory statement is merely intended to "set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only." (Emphasis supplied). In reliance upon these definitions and the general scheme of Chapter 120, we have held that declaratory statements may not be used as a shortcut method of announcing a rule, thereby avoiding the rule adoption procedures of Section 120.54, Florida Statutes. See Department of Professional Regulation, Bd. of Professional Engineers v.

    Florida Soc'y of Professional Land Surveyors,

    475 So.2d 939, 943 (Fla. 1st DCA 1985); Mental Health Dist. Bd., II-B v. Florida Dep't of Health and Rehabilitative Servs., 425 So.2d 160, 162 (Fla. 1st DCA 1983); Department of Admin. v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1977); and Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977).

    It is contended by the optometrists that the declaratory statement under review should be set aside, because it is limited to neither a particular petitioner, nor a particular set of circumstances. While the optometrists' argument on this point may have merit, we find it unnecessary to decide the issue presented, because the declaratory statement must be set aside as a result of our holdings under the first two arguments presented.

    
    

    We do observe, however, that declaratory statements and rules serve clearly distinct functions under the scheme of Chapter 120. Although the line between the two is not always clear, it should be remembered that declaratory statements are not to be used as

    a vehicle for the adoption of broad agency policies. Nor should they be used to provide interpretations of statutes, rules or orders which are applicable to an entire class of persons. Declaratory statements should only be granted where the petition has clearly set forth specific facts and circumstances which show that the question presented relates only to the petitioner and his particular set of circumstances. Thus, petitions which provide only a cursory factual recitation or which use broad, undefined terms, such as "vision screening equipment" and "visual acuity," should be carefully scrutinized. Similarly, petitions by associations, rather than individuals, should be inherently suspect.

    When an agency is called upon to issue a declaratory statement in response to a question which is not limited to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as to meet the

    definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking.

    
    

20. The Florida Optometric Association case quoted immediately above appears to control the disposition of this case. Here, as in Florida Optometric Association, supra, the question presented by the petition is "not narrowly drawn," the question presented has "the potential for affecting the substantial interests of persons other than the petitioners," and the "expansive nature" of the question presented in the petition for declaratory statement makes applicable both Section 120.57, Florida Statutes, and Rule 28-5.111, Florida Administrative Code. Accordingly, here, as in Florida Optometric Association, supra, the Respondents and Intervenor should have been given notice of an opportunity for a point of entry into this declaratory statement proceeding while the proceeding was first pending before the Department of Banking and Finance.

    
    

21. In concluding that the holding in Florida Optometric Association, supra, governs the disposition of this case, I have not overlooked the earlier case of State, Dept. of Health and Rehabilitative Services v. Barr, 359 So.2d

    503 (Fla. 1st DCA 1978). The Respondents and Intervenor in this case are in a position somewhat analogous to that of Dr. Barr, who was seeking to attack a declaratory statement issued in a proceeding to which he had not been a party, but which he contended would impact his substantial interests. Dr. Barr's concerns were described and disposed of as follows in Barr, supra, at page 505:

    
    

    Respondents have expressed concern that persons not parties to a Section 120.565 proceeding . . . may later be adversely affected by the agency's enforcement against them of its interpretation of law thus announced. That is true. Agency orders rendered in Section 120.57 proceedings may in the same way indirectly determine controver-

    sies and affect persons yet unborn. But the rule is stare decisis, not res judicata. If such a person's substantial interests are to be determined in the light of a prior agency order or declaratory statement, Section 120.57 proceedings will afford him the opportunity to attack the agency's position by appropriate

    means, and Section 120.68 will provide judicial review in due course.

    
    

22. The reasoning in Barr, supra, seems in many ways to be a more simple and practical disposition of the matter, as well as a disposition that preserves a more potentially useful role for Section 120.565, Florida Statutes. 6/ But the conclusion in Barr, supra, even though it is not mentioned in Florida Optometric Association, supra, appears to have been overruled by implication in the latter opinion. In these circumstances it appears wiser to follow Florida Optometric Association, supra, than to rely on Barr, supra, not because the Florida Optometric Association opinion is necessarily better reasoned, but because it is more recent and appears to have silently superceded a number of the earlier cases involving Section 120.565, Florida Statutes.

    
    

23. But even under Florida Optometric Association, supra, it does not necessarily follow that because the Respondents and Intervenor were entitled to a point of entry into Section 120.57 proceedings before the Department of Banking and Finance, they were also entitled to a formal hearing before the Division of Administrative Hearings. Quite to the contrary, declaratory statement proceedings are almost never appropriate for hearings before the Division of Administrative Hearings. 7/ Absent the appellate court order directing that proceedings be held pursuant to Section 120.57(1), Florida Statutes, this case should never have been sent to the Division of Administrative Hearings. 8/ But the order was issued and, inasmuch as no review was sought of the remand order, it should be, and has been obeyed, even though obedience to the remand order has unnecessarily prolonged a process that should have, and could have, been brought to conclusion long ago. 9/

    
    

24. The "observations" in Florida Optometric Association, supra, that bear most specifically on this case are repeated below:

    
    

    Declaratory statements should only be granted where the petition has clearly set forth specific facts and circumstances which show that the question presented relates only to the petitioner and his particular set of circumstances. Thus, petitions which provide only a cursory factual recitation or which use broad, undefined terms, . . . should be carefully scrutinized. Similarly, petitions by associations, rather than individuals, should be inherently suspect. When an agency is called upon to issue a declaratory state- ment in response to a question which is not limited to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the

    statement or comply with the provisions of Section 120.54 governing rulemaking. (Emphasis added.)

    
    

25. On its face, the Petition for Declaratory Statement in this case appears at first blush to be limited to a request involving the application of a statute "to the petitioner in his particular set of circumstances only." But more careful examination of the petition, especially the nature of the specific relief sought, reveals, first, that there are many others (all owners of church operated cemeteries) who have circumstances the same as or similar to the Petitioner's circumstances and, second, that the declaratory statement sought would have an impact on the substantial interests of many others (all who compete with church operated cemeteries). The petition is also quite broad in its scope, inasmuch as it is, in essence, a challenge to the applicability of the entire regulatory scheme of Chapter 497, Florida Statutes. For these reasons the petition in this case is inappropriate for a declaratory statement and the Department of Banking and Finance should decline to issue the statement.

    
    

26. For the same reasons discussed immediately above, there was no real need for a formal hearing in this case, nor is there likely to ever be a real need for a formal hearing in any declaratory statement case, except under the most unusual of circumstances. The courts have recognized as early as in McDonald v. Department of Banking and Finance, 346 So.2d 569, 577 (Fla. 1st DCA 1977), and as recently as in Florida Optometric Association, supra, that, with regard to a declaratory statement petition of proper scope, "a person who submits such a petition has no right to a 120.57 hearing on his petition, and since no one other than the petitioner will normally be affected by the declaratory statement, Section 120.57 is simply not applicable." Florida Optometric Association, at page 936. Pursuant to Florida Optometric Association, supra, Section 120.57, Florida Statutes, is implicated when the petition for declaratory statement is so broadly drawn as to affect the substantial interests of strangers to the declaratory statement proceeding. Because of the potential impact on their substantial interests, those strangers to the declaratory statement proceeding (like the Respondents and Intervenor in this case) are entitled to a clear point of entry into the proceeding to protect their interests. But the adequate protection of those interests will seldom, if ever, necessitate a formal hearing due to the limited nature and scope of the issues that can legitimately be raised by the strangers to the initial proceeding. There are, essentially, only two legitimate arguments the strangers can make: (1) that the declaratory statement sought is so broad or general as to require rulemaking under Section 120.54, Florida Statutes, or (2) that the declaration sought is not limited to the petitioner or to his particular set of circumstances only. It is unlikely that disposition of those arguments will involve disputed issues of material fact, and thus unlikely that there will ever be a need for a formal hearing. In this regard, it is significant that once the strangers to a declaratory statement proceeding have raised their arguments, disposition of those arguments supersedes disposition of the substantive matters raised by the petition for declaratory statement, because if there is merit to the strangers' arguments, the only appropriate remedy is for the agency to decline to issue the requested declaratory statement. And in those cases where the strangers' arguments lack merit, the proper remedy is to dismiss the strangers as parties to the declaratory statement proceeding and then address the substantive matters raised by the declaratory statement petition without participation by the strangers. 10/ There do not appear to be any circumstances under which it would be necessary or appropriate to conduct a formal hearing on the substantive matters raised by a petition for declaratory statement, because virtually every declaratory statement proceeding that involves genuinely

    disputed issues regarding the facts asserted in the original petition will also be a proceeding in which the agency should decline to issue a declaratory statement.

    
    

27. There are other reasons for which the Department of Banking and Finance should decline to issue the declaratory statement requested in this case. Rule 3-6.0021(2), Florida Administrative Code, provides that the Department may decline to issue a declaratory statement where the party seeking the statement fails to show "that there is a bona fide, actual, present, practical need for the declaratory statement." No such need has been shown in this case. To the contrary, the petition shows on its face that the Petitioner already knows the Department's interpretation of the subject statutory scheme. Paragraphs 7 and 8 of the petition allege:

    
    

    1. Gerald Lewis, Comptroller of the State of Florida, has advised the Petitioner that, if it expands its cemetery operations on property that is not contiguous to its existing cemetery operations, those expansion operations will become subject to licensure pursuant to Chapter 497 of the Florida Statutes.

       
       

    2. The Petitioner believes that such an interpretation by the Comptroller is faulty and that it would be contrary to the intent of the legislature as well as being contrary to the Constitutions of the United States and of the State of Florida pertaining to separation of Church and State.

    
    

    It is clear from the foregoing allegations that the Petitioner is well aware of the Department's opinion and is seeking to use the declaratory statement petition not as a means of learning the Department's opinion, but as a vehicle for quarreling with the Department about the wisdom of its opinion. There being no need for the statement, the petition should be denied pursuant to Rule 3- 6.0021(2), Florida Administrative Code.

    
    

28. The Department of Banking and Finance should also decline to issue the requested declaratory statement on the basis of Rule 3-6.0021(8), Florida Administrative Code, because "[t]he questions posed are not within the authority of the department." The real issue in this case is whether the application of the licensure requirements of Chapter 497, Florida Statutes, to the Petitioner's proposed expansions of its cemetery operations would constitute an impermissible intrusion into certain of the Petitioner's rights guaranteed by the Florida and United States Constitutions. Stated otherwise, the real question the Petitioner seeks to have answered is: Is Chapter 497 unconstitutional insofar as it purports to regulate the Petitioner's proposed expansions of its cemetery operations? 11/ That is a question that cannot properly be answered by the Department of Banking and Finance. In both Barr v. Watts, 70 So.2d 347 (Fla. 1953), and State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, 94 So. 681 (Fla. 1922), the Florida Supreme Court has stated:

. . . the right to declare an act unconstitu- tional . . . cannot be exercised by the officers of the executive department under

the guise of the observance of their oath of office to support the Constitution.

More recently in Adams Packing Ass'n., Inc. v. Florida Dept. of Citrus, 352 So. 2d 569 (Fla. 2d DCA 1977), the court stated, at page 571:

It is a firmly established principle of law that challenges to the constitutionality of acts of the legislature and actions of an administrative agency created by the legislature are for the courts alone to determine. (citations omitted) Because it is a judicial function to be performed solely by the courts, an administrative agency cannot be empowered or authorized to make this determination.

It being clear that the Department of Banking and Finance is without authority to invalidate the provisions of Chapter 497, Florida Statutes, the petition in this case should be dismissed on the basis of Rule 3-6.0021(8), Florida Administrative Code.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Declaratory Statement on the grounds that the issues raised by the petition are inappropriate for disposition in a declaratory statement proceeding under Section 120.565, Florida Statutes.

RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of October 1991.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1991.

ENDNOTES

1/ The complete text of the Petition For Declaratory Statement is attached to this Recommended Order as Appendix No. 1.

2/ Although it is not completely clear from the record before the Hearing Officer, the Respondents and others do not appear to have been parties to the administrative proceedings that preceded the filing of their appeal.

3/ I have omitted the portion of the Petitioner's proposed finding to the effect that the Archbishop had no charge under secular law. Secular law applies equally to all, even to those also charged with duties under church law. In the words of Jesus: "Render therefore unto Ceasar the things which are Ceasar's; and unto God the things that are God's." Matthew 22:21, King James Version.

See also: Mark 12:17, Luke 20:25.

4/ The conclusion that the Division of Administrative Hearings has jurisdiction over this proceeding appears to be the law of the case in view of the order of June 13, 1989, from the District Court of Appeal, which order remands the cause "for further proceedings pursuant to Sec. 120.57(1), Florida Statutes." For reasons discussed later in these conclusions, it is doubtful whether declaratory statement proceedings are ever properly before the Division of Administrative Hearings absent a specific court order specifically so providing.

5/ The unsettled state of the law regarding declaratory statements may be illustrated by comparing and contrasting the following cases which comprise most of the cases in which the meaning and application of the declaratory statement statute has been discussed: Dairy Service Corporation v. State, Department of Citrus, 340 So.2d 1221 (Fla. 4th DCA 1976); Price Wise Buying Group v. Nuzum,

343 So.2d 115 (Fla. 1st DCA 1977); Sarasota County v. Dept. of Administration,

350 So.2d 802 (Fla. 2d DCA 1977); State, Dept. of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978); Couch v. State, Dept. of Health and Rehabilitative Services, 377 So.2d 32 (Fla. 1st DCA 1979); Florida Optometric Association v. Dept. of Professional Regulation, 399 So.2d 6 (Fla. 1st DCA 1981); Sans Souci v. Division of Florida Land Sales And Condominiums, Dept. of Business Regulation, 421 So.2d 623 (Fla. 1st DCA 1982); Mental Health District Board, II-B v. Florida Dept. of Health and Rehabilitative Services, 425 So.2d 160 (Fla. 1st DCA 1983); Florida Power Corp. v. State, Dept. of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983); San Souci v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation,

448 So.2d 1116 (Fla. 1st DCA 1984); Dept. of Professional Regulation v. Florida Society of Professional Land Surveyors, 475 So.2d 939 (Fla. 1st DCA 1985); Federation of Mobile Home Owners of Florida, Inc., v. Dept. of Business Regulation, Division of Florida Land Sales Condominiums and Mobile Homes, 479 So.2d 252 (Fla. 2d DCA 1985); Manasota-88, Inc. v. Gardinier, Inc., 481 So.2d 948 (Fla. 1st DCA 1986); State, Dept. of Administration v. University of Florida, 531 So.2d 377 (Fla. 1st DCA 1988); B.J.L. v. Dept. of Health and Rehabilitative Services, 558 So.2d 1078 (Fla. 1st DCA 1990); Florida Optometric Association v. Dept. of Professional Regulation, Bd. of Opticianry, 567 So.2d 928 (Fla. 1st DCA 1990).

6/ At page 937, the Florida Optometric Association opinion, supra, contains the following enigmatic "observation" as to what declaratory statements should not be used for:

[I]t should be remembered that declaratory statements are not to be used as a vehicle for the adoption of broad agency policies. Nor should they be used to provide inter- pretations of statutes, rules or orders which are applicable to an entire class of persons. (Emphasis added)

Every statute and rule is applicable to "an entire class of persons." Thus, the practical effect of the language underscored above is to limit the use of declaratory statements to the interpretation of orders. The effect of the

limitation renders essentially meaningless two of the three purposes for which the statute authorizes declaratory statements. These effects are avoided by the approach taken in Barr, supra.

7/ See Delray Housing Associates, Ltd. v. Dept. of Environmental Regulation, 9 FALR 551 (1986), in which the Director of the Division of Administrative Hearings explained:

Section 120.565, Florida Statutes, provides that a declaratory statement shall set out the agency's opinion as to the applica- bility of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only. It further provides that agency disposition of petitions shall be final agency action.

Although Rule 28-4.07, Florida Administrative Code, provides that the agency may, in its discretion, hold a hearing conducted under Section 120.57 to dispose of the petition, there is no provision for a Hearing Officer of the Division to conduct such a hearing.

It has been the long standing practice of this Division to decline to assign Hearing Officers to conduct hearings under Section

120.565. Otherwise, the Hearing Officer would be placed, in effect, in the position of providing advisory opinions to the agency.

8/ The procedural antecedents to the appellate court order remanding this case for proceedings under Section 120.57(1) are somewhat of a conundrum. It is rather well-settled law that those who are not parties to an administrative proceeding lack standing to seek judicial review of the outcome of an administrative proceeding. Thus it is somewhat of a mystery that strangers to the original administrative proceedings in this declaratory statement case were able to prosecute an appeal -- an appeal to which the original administrative petitioner does not appear to have been made a party -- and end up with a court order remanding the case for further proceedings. A more likely fate would have been an order granting a motion to dismiss appeal for lack of standing, a motion which, apparently, was never filed.

9/ In fairness to all who influenced the progress of this case prior to its referral to the Division of Administrative Hearings, it is noted that at the time the decision was made to embark upon formal proceedings under Section 120.57(1), no one had the benefit of the "observations" in the concluding paragraphs of Florida Optometric Association v. Dept. of Professional Regulation, Bd. of Opticianry, 567 So.2d 928 (Fla. 1st DCA 1990).

10/ Dismissal of the strangers from further participation in the declaratory statement proceeding is the most appropriate disposition when their arguments lack merit. This is because, if the statement sought is not so broad as to require rulemaking and is properly limited to the original petitioner's particular set of circumstances only, the strangers will not have any substantial interest that can be affected by the declaratory statement

proceeding, and no useful purpose would be served by allowing them to continue to participate in the proceeding once it was determined that the proceeding did not affect their substantial interests.

11/ The parties have so focused their attention on the constitutional issues in this case that they have for the most part failed to address argument to the issue of whether the Department should decline to issue the requested statement. Specifically, not one of the parties has cited any of the cases collected at footnote 6 of this Recommended Order.

APPENDIX NUMBER 1 TO RECOMMENDED ORDER, CASE NO. 89-3851

The full text of the Petition For Declaratory Statement reads as follows: PETITION FOR DECLARATORY STATEMENT

The Petitioner, CATHOLIC CEMETERIES OF THE ARCHDIOCESE OF MIAMI, INC., seeks a

declaratory statement from the Department of Banking and Finance pursuant to Section 120.565, Florida Statutes.

1. The Petitioner is a not-for-profit corporation which owns and operates a cemetery in Dade County, Florida and a cemetery in Broward County, Florida.

   
   

2. The cemeteries have been in existence since prior to June 23, 1976 and, as such, are exempt from licensure and regulation pursuant to Chapter 497 of the Florida Statutes.

   
   

3. The cemeteries are operated as an apostolate of the Roman Catholic Archdiocese of Miami pursuant to its religious mandate and teachings.

   
   

4. Because of the increasing number of Catholics residing in Dade and Broward Counties and because of projected increases in the future, the Petitioner has a need to expand the present cemetery operations in both counties.

   
   

5. The Petitioner does not own sufficient land contiguous to the present existing cemetery operations to allow expansion in that fashion. However, the Petitioner does own other parcels of land within those two counties which are suitable for cemetery operations.

   
   

6. The Petitioner wishes to develop those alternate parcels of land for cemetery operations and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner.

   
   

7. Gerald Lewis, Comptroller of the State of Florida, has advised the Petitioner that, if it expands its cemetery operations on property that is not contiguous to its existing cemetery operations, those expansion operations will become subject to licensure pursuant to Chapter 497 of the Florida Statutes.

   
   

8. The Petitioner believes that such an interpretation by the Comptroller is faulty and that it would be contrary to the intent of the legislature as well as being contrary to the Constitutions of the United States and of the State of Florida pertaining to separation of Church and State.

9. The Petitioner is in doubt as to its rights under the Statute in view of the interpretation provided by the Comptroller and wishes to have this Agency construe its rights prior to proceeding.

   
   

10. The Petitioner submits the attached Memorandum in support of its position thereof.

WHEREFORE, the Petitioner seeks a declaration from this Agency that it may expand its cemetery operations in Dade and Broward Counties without being subject to the licensure provisions of Chapter 497 of the Florida Statutes.

Dated this 12 day of August, 1988.

FITZGERALD, PORTELA & PORTUONDO

Attorneys for Petitioner 1390 Brickell Avenue

Suite 402

Miami, Florida 33131

(305) 358-0737

By:

J. MICHAEL FITZGERALD, ESQ.

APPENDIX NO 2 TO RECOMMENDED ORDER, CASE NO. 89-3851

The following are my specific rulings on all findings of fact proposed by all parties.

Findings proposed by Petitioner Catholic Cemeteries:

Paragraphs 1 through 10:Accepted in whole or in substance.

Paragraphs 11 through 13:Rejected as irrelevant in view of the parties' stipulation that "need" is not an issue in this case.

Paragraph 14:Accepted in substance with the exception of a few details that are inconsistent with the parties' stipulation and the greater weight of the evidence.

Paragraph 15:Accepted in substance.

Paragraph 16:Rejected as irrelevant to the issues in this case; funeral celebrations serve similar functions and are of similar importance for people of virtually every religion.

Findings proposed by Respondent Florida Cemetery Associations, Inc.:

Paragraph 12:Rejected as constituting a conclusion of law rather than a finding of fact.

Paragraph 24:Rejected as irrelevant in view of the parties' stipulation that "need" is not an issue in this case.

The substance of all other findings of fact proposed by the Florida Cemetery Association, Inc., has been accepted.

Findings proposed by Respondent South Dade Palms:

The Respondent South Dade Palm Memorial Park, Inc., submitted argument in support of the proposed recommended order submitted by the Florida Cemetery Association, Inc., but did not propose any additional findings of fact.

Findings proposed by Department of Banking and Finance:

The substance of all of the findings of fact proposed by the Department of Banking and Finance has been accepted.

Findings proposed by Intervenor Dade South Memorial:

The Intervenor South Dade Memorial Park, Inc., submitted argument in support of the proposed recommended order submitted by the Florida Cemetery Association, Inc., but did not propose any additional findings of fact.

COPIES FURNISHED:

J. Michael Fitzgerald, Esquire Yvonne A. Tamayo, Esquire Fitzgerald and Portuondo

150 West Flagler Street Museum Tower, Suite 2701 Miami, Florida 33130

Ross A. McVoy, Esquire

Fine Jacobson Schwartz Nash Block & England

215 South Monroe Street Suite 804

Tallahassee, Florida 32301-1859

Robert G. Maxwell, Esquire

135 Westward Drive

Miami Springs, Florida 33166

Paul Stadler, Jr., Esquire Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking and Finance The Capitol

Room 1302

Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF FINANCE

CATHOLIC CEMETERIES OF THE ARCHDIOCESE OF MIAMI, INC.,

Petitioner, Administrative Proceeding vs. No. 1231-F-8/88

DOAH Case No. 89-3851

FLORIDA CEMETERY ASSOCIATION, INC., and SOUTH DADE PALMS MEMORIAL PARK, INC.,

Respondents.

and

DADE SOUTH MEMORIAL PARK, INC.,

Intervenor.

/

FINAL ORDER

This matter has come before the undersigned as head of the Department of Banking and Finance ("Department") for the entry of a Final Order in the above referenced proceeding. On October 14, 1991, a Hearing Officer from the Division of Administrative Hearings ("DOAH") submitted his Recommended Order in this proceeding, a copy of which is attached hereto as Exhibit A. None of the parties to this proceeding have filed exceptions to the Recommended Order. The parties agreed to extend the requirements of Section 120.58(1), Florida Statutes, until January 24, 1992.

Having considered the entire record of this proceeding, the pleadings, the exhibits and transcript, it is accordingly,

ORDERED:

1. The Hearing Officer's Findings ot Fact and Conclusions of Law are hereby adopted and incorporated herein except as modified or rejected hereafter.

   
   

2. The Department rejects the Hearing Officer's Conclusion of Law set forth in paragraph 16 of the Recommended Order insofar as it is based upon "allegations" as opposed to competent, substantial evidence in the record.

3. The Department notes that circumstances may exist and case law which would support a Section 120.57(1), Florida Statutes, DOAH formal proceeding on a declaratory statement petition, even absent a court order (as in this case) requiring the same. Nevertheless, the Department concurs with the Hearing Officer's ultimate recommendation in this particular case based upon the reasoning contained in the Recommended Order.

   
   

4. The Department's earlier Final Order, dated January 30, 1989, titled "Response to Petition for Declaratory Statement" previously entered in this proceeding is hereby VACATED and superseded by this Final Order and the Petition for Declaratory Statement filed by the Petitioner in this proceeding is hereby DISMISSED.

   
   

5. As a consequence of the foregoing dismissal of the Petition for Declaratory Statement, any and all pending petitions filed for formal hearing or to intervene in this proceeding are likewise DISMISSED.

DONE and ORDERED this 24 day of January, 1992, in Tallahassee, Leon County, Florida.

Gerald Lewis, as Comptroller and Head of the Department of Banking and Finance

Copies furnished to:

Randall A. Holland, Director Division of Finance

Paul C. Stadler, Jr. Assistant General Counsel

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 DEPARTMENT OF BANKING AND FINANCE, SUITE 1302, THE CAPITOL, TALLAHASSEE, FLORIDA 32399-0350, AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, 300 MARTIN L. KING, JR., BOULEVARD, TALLAHASSEE, FLORIDA 32399- 1850, OR IN 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.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order was sent by regular U. S. Mail to: J. Michael Fitzgerald, Esquire, and Yvonne A. Tamayo, Esquire, 150 West Flagler Street, Museum Tower, Suite 2701, Miami, Florida

33130; Ross A. McVoy, Esquire, 215 South Monroe Street, Suite 804, Tallahassee, Florida 32301-1859; Robert G. Maxwell, Esquire, 135 Westward Drive, Miami Springs, Florida 33166; and Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalac,hee Parkway, Tallahassee, Florida 32399-1550; this

24 day of January, 1992.

Deputy General Counsel

Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350

(904) 488-9896

Docket for Case No: 89-003851

Orders for Case No: 89-003851