STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID V. TOALE, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6635
) DEPARTMENT OF BANKING AND FINANCE ) AND GIBRALTAR MAUSOLEUM CORPORATION, )
)
Respondents. )
) VENICE MEMORIAL GARDENS, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 92-6884
) DEPARTMENT OF BANKING AND FINANCE ) AND GIBRALTAR MAUSOLEUM CORPORATION, )
)
Respondents. )
) BROWN, EDWARDS, TOALE FUNERAL HOME, ) INC., b/b/a MANATEE MARKERS AND ) CEMETERY BROKERS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6885
) DEPARTMENT OF BANKING AND FINANCE ) AND GIBRALTAR MAUSOLEUM CORPORATION, )
)
Respondents, )
) TOALE BROTHERS, INC. AND BROWN )
AND SONS FUNERAL HOME, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 92-6886
) DEPARTMENT OF BANKING AND FINANCE ) AND GIBRALTAR MAUSOLEUM CORPORATION )
)
Respondents. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on April 29, 1993, in Sarasota, Florida.
APPEARANCES
For Petitioners: Edwin R. Hudson, Esquire Venice Memorial Gardens, Henry & Buchanan, P. A. Toale Brothers, Inc., 117 South Gadsden Street and Brown and Sons
Funeral Home, Inc.
For Petitioners; James R. Brewster, Esquire David V. Toale, Brown Suite 203, The Walker Building Edwards, Toale Funeral 547 North Monroe Street,
Home d/b/a Manatee Markers Tallahassee, Florida 32301 and Cemetery Brokers, and
Venice Memorial Gardens
For Respondent: Bridget L. Ryan, Esquire Department of Banking Office of the Comptroller and Finance, Division State of Florida
of Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350
For Respondent; Harry R. Detwiler, Jr., Esquire Gibraltar Mausoleum Holland & Knight
Corporation Post Office Drawer 810 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
Whether Respondent, Gibraltar Mausoleum Corporation, has met the requirements of Chapter 497, Florida Statutes (1991), and the applicable rules to acquire control of an existing cemetery, Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park.
PRELIMINARY STATEMENT
By letter dated July 31, 1992, Respondent, Gibraltar Mausoleum Corporation (Gibraltar) submitted an Application For Authorization To Acquire Control Of An Existing Cemetery Company to the Respondent, Department of Banking and Finance (Department), pursuant to Rule 3D-30.017, Florida Administrative Code. On December 12, 1992, the Department, authorized under Chapter 497, Florida Statutes, to regulate cemeteries, published its Notice of Intent to approve the acquisition of Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park (Hillcrest) by Gibraltar and to issue a new license to Gibraltar. The Petitioners filed four separate petitions protesting the acquisition, contending that the acquisition of Hillcrest's assets by Gibraltar was improper because the procedure delineated in Section 497.006, Florida Statutes, had not been followed. The Department referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing. The cases were consolidated and the matter proceeded to hearing.
At the hearing, the Petitioners presented the testimony of Harriet A. Hoeksema, David V. Toale, David Farley, Charles Brown, Andrew Grosmaire and Peggy Huss. Petitioners' exhibit 1, composite exhibits 2 and 3 and exhibits 4 through 12 were received as evidence in this case. The Department presented the testimony of Andrew Grosmaire. The Department's exhibit 1, the deposition of Jon C. Thomas submitted in lieu of his testimony at the hearing, was received as evidence in this case. Gibraltar presented the testimony of Kevin R. Daniels, J. P. Gradone and Timothy Brammer. Gibraltar's exhibits 1 through 4 were received as evidence in this case. Joint Exhibit 1 was received as evidence in this case. Chapter 497, Florida Statutes (1991), Chapter 65-288, Laws of Florida, Chapter 85-202, Laws of Florida, Rule 3D-30.017, Florida Administrative Code, Final Orders in Administrative Proceedings Nos. 1091-F- 2/88, 1200-F-7/88, 1092-F-2/88, 1199-F-7/88, 1093-F-21/88, 1198-F-7/88, 1282-F-
11/88, 683-F-6/86, and 1827-F-5/90, and Administrative Complaints in Administrative Proceedings Nos. 1091-F-2/88, 1092-F-2/88, 1093-F-2/88, 1198-F- 7/88, 1199-F-7/88 and 1200-F-7/88 were officially recognized.
Petitioners' Post-Hearing Motion To Correct and Supplement The Record filed subsequent to the hearing was unopposed. The motion advised the undersigned that the copy of the Assets Purchase Agreement (Agreement) contained in Joint exhibit
1 was not a copy of the Agreement submitted to the Department with Gibraltar's application as indicated in the hearing and that the number "664" on page 93, line 23 was incorrect and should have been "164". Having reviewed the record herein, the motion is granted and a copy of the Agreement as submitted to the Department with Gibraltar's application with certain information redacted shall be made a part of Joint Exhibit 1 along with the copy of the Agreement received in the hearing as part of Joint Exhibit 1 and page 93, line 23 of the transcript of the record is corrected to read "164" rather than "664". Also, Petitioners' Post-Hearing Motion For Official Recognition of Chapter 93-399, Laws of Florida, is granted and Chapter 93-399, Laws of Florida, is officially recognized.
A transcript of this proceeding was filed with the Division of Administrative Hearings on June 4, 1993. On June 7, 1993, Gibraltar filed a Motion For Extension Of Time For Filing Proposed Recommended Order which was unopposed. The motion was granted and the time for filing Proposed Recommended Orders was extended until June 30, 1993, with the understanding that the extension of time waives the time constraint for the entry of a Recommended Order set forth in Rule 28-5.402, Florida Administrative Code, in accordance with Rule 60Q-2.0031(2), Florida Administrative Code. The parties timely filed their Proposed Findings of Fact and Conclusions of Law under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
The Department is the agency charged with the responsibility of licensing and regulating cemetery companies in the State of Florida pursuant to Chapter 497, Florida Statutes.
David V. Toale owns burial rights in Palms Memorial Park.
Venice Memorial Gardens, Inc. is an existing cemetery company located in Sarasota County, Florida which owns, controls and is licensed to operate the cemetery known as Venice Memorial Gardens.
Brown, Edwards, Toale Funeral Home, Inc. d/b/a Manatee Markers and Cemetery Brokers, is a funeral home and cemetery broker located in Manatee County, Florida that owns burial rights in Palms Memorial Park.
Toale Brothers, Inc. is a funeral home with locations in Sarasota County, Florida and Manatee County, Florida.
Brown and Sons Funeral Home, Inc. is a funeral home located in Manatee County, Florida.
Hillcrest, a Florida Corporation, is an existing cemetery company which owns, controls and is licensed to operate a perpetual care cemetery known as Palms Memorial Park located in Sarasota County, Florida.
Arbor Capital, Inc., a Delaware corporation, is the owner and parent company of Hillcrest by virtue of its ownership of all outstanding stock of Hillcrest.
A second company also known as Arbor Capital, Inc., a Ontario, Canada corporation, is the parent and owner of Arbor Capital, Inc., the Delaware corporation.
Gibraltar is an Indiana corporation which: (a) owns and operates cemeteries; (b) owns and operates funeral homes; and (c) constructs funeral homes and mausoleums. Gibraltar has been qualified to do business in the State of Florida since October 14, 1988, and at the time it proposed to purchase the assets of Hillcrest, Gibraltar was an existing legal entity.
On July 31, 1992, Gibraltar filed a Form DBF-F-35, Application For Authority To Acquire Control Of An Existing Cemetery Company (Application), with the Department for authority to purchase the assets of Hillcrest Cemetery, an existing cemetery company, and thereby gain ownership and control of the cemetery known as Palms Memorial Park.
Several documents were attached to the Application, including the Agreement which had been executed by Hillcrest Cemetery, Inc. as Seller, Arbor Capital, Inc. as Shareholder for Hillcrest Cemetery, Inc., Arbor Capital Inc., an Ontario Corporation, and Gibraltar Mausoleum Corporation, as the Buyer. By this Agreement, Gibraltar is purchasing the assets of Hillcrest which includes all of the cemetery property known as Palms Memorial Park and assumes all liabilities for pre-need contracts and pre-sold merchandise. Gibraltar intends to keep all trust funds in accordance with state law and regulations and shall insure that Palms Memorial Park is maintained perpetually.
The sales price of the assets and certain other sales-related figures were blacked-out in the copy of the Agreement submitted by Gibraltar with its Application to the Department. Gibraltar redacted these figures because, being a private company, it sought to keep these figures from the public record. However, in any event, a copy of the Agreement without any figures being redacted was received as evidence in this case.
By letter dated August 6, 1992, the Department advised Gibraltar that certain required documents had not been submitted with the Application and that Question 4 of the Application was incomplete.
It is the Department's position that it has authority to review and approve such applications without the benefit of the sales price and other sales-related figures, and had done so in the past. Therefore, the Department did not require Gibraltar to furnish the figures that had been redacted in the Agreement prior to tentative approval of its Application. Also, it is the Department's position that had the redacted figures been available before the tentative approval, the Application would still have been approved.
Subsequently, Gibraltar furnished the Department the information and documents requested in the Department's letter of August 6, 1992, which brought the Application in compliance with Rule 3D-30.017, Florida Administrative Code. By letter dated October 16, 1992, the Department notified Gibraltar that the Department had tentatively approved the Application for the assets purchase of Hillcrest by Gibraltar subject to the notice of intent being advertised in the Florida Administrative Weekly.
Tentative approval of the Application was the result of an investigation by the Department wherein it was determined that Gibraltar had met the requirements of Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar. The Department did not review Gibraltar's Application under the provisions of Sections 497.006 or 497.027, Florida Statutes.
The Notice Of Intent To Approve A Cemetery Application was advertised in the Florida Administrative Weekly, Volume 18, Number 40, October 2, 1992. However, the Department advertised a revised Notice Of Intent To Approve A Cemetery Application in the Florida Administrative Weekly, Volume 18, Number 49, December 4, 1992, because the notice in the first advertisement was not clear as to which entity was the seller and which entity was the purchaser.
The Department did not give any other form of notice of its intent to approve the Application. Specifically, the Department did not give direct notice to any individual or company that owned burial rights in Palms Memorial Park.
Form DBF-F-35, incorporated by reference in Rule 3D-30.017, Florida Administrative Code, is the application form required under Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, to be filed by an applicant seeking to acquire control of an existing cemetery by acquiring the stock or purchasing the assets of the existing cemetery company that owns, controls and is licensed to operate the existing cemetery. Form DBF-F-35, is also required under Section 497.008, Florida Statutes, when there is an application for internal change of control among stockholders of an existing cemetery company that owns, controls and is licensed to operate an existing cemetery.
The Department considers Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, as its authority for allowing external change of control of an existing cemetery where either the stock is acquired or the assets purchased of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery. The Petitioners, on the other hand, consider Section 497.006(2) and (3), Florida Statutes, as the Department's authority for such external change of control of an existing cemetery where only the assets of an existing cemetery company that owns, controls and is licensed to operate the existing cemetery are being acquired. The Department, however, considers Section 497.006(2) and (3), Florida Statutes, as applying to the
establishment of a cemetery company for the purpose of being licensed to operate an entirely new cemetery if the Department establishes a need for a new cemetery in the community. In situations such as the instant case, the Department reclaims the licence from the cemetery company previously exercising control over the existing cemetery and issues a new licence in the name of the cemetery company gaining control of the existing cemetery.
Petitioners contend that Section 497.027(2), Florida Statutes, applies to Gibraltar's Application. However, the Department has interpreted that subsection as applying only in situations where the cemetery company or other purchasing entity is attempting to use the land currently dedicated for cemetery use for something other than as a cemetery. There was no evidence that Gibraltar intended to use Palms Memorial Park for anything other than as a cemetery.
Since late 1979, the Department has been approving the external change of control of an existing cemetery where the assets of the existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, are being purchased.
Until about five years ago, the acquisition of an existing cemetery was accomplished by purchasing the assets of the existing cemetery company owning, controlling and being licensed to operate the existing cemetery, rather than acquiring the existing cemetery company's stock.
Since October 1, 1989, the Department has approved 16 asset purchases and 27 stock purchases of existing cemetery companies, that owned, controlled and were licensed to operate existing cemeteries, under Section 497.007, Florida Statutes. Ten of the 27 stock purchases were a lump sale to one corporation.
There was no evidence that the Department had experienced any regulatory problems in approving the external change of control of existing cemeteries where there was an asset acquisition of the existing cemetery company that owned, controlled and was licensed to operate the existing cemetery.
There was no evidence that the external change of control of an existing cemetery where there was an asset acquisition of the existing cemetery company, that owned, controlled and was licensed to operate the existing cemetery, resulted in any type of negative impact on the public.
Gibraltar currently owns and operates 14 of the approximately 164 cemeteries in the state of Florida and 51 cemeteries throughout the United States. Gibraltar is one of the larger companies owning cemeteries and funeral homes in the United States. Gibraltar's corporate structure includes a cemetery division, funeral division and a construction division.
Gibraltar is a closely held, family-owned company whose stockholders have worked in the cemetery business their entire careers. None of the stockholders have ever been subject to a criminal prosecution or criminal enforcement action, or had a license revoked, denied or suspended.
Gibraltar intends to have the personnel and management that is presently assigned to Manasota Memorial Park to manage and operate Palms Memorial Park while continuing to manage and operate Manasota Memorial Park.
Gibraltar has the necessary experience to operate Palms Memorial Park.
The Department examined Gibraltar's financial statement which was attached to the application and reviewed the financial statements of the shareholders which were included in the application.
Gibraltar is a financially solvent company with a net worth of over
$34,000,000.00. The purchase of the assets of Hillcrest, as proposed in the Application and set out in the Agreement, will be a cash transaction requiring no mortgages or other encumbrances on the property.
Gibraltar has the financial responsibility necessary to purchase and operate Palms Memorial Park.
There are seven licensed cemeteries in the adjacent Florida counties of Manatee and Sarasota. Gibraltar owns and is licensed to operate three of those cemeteries. They are: Manasota Memorial Park, Inc. and Mansion Memorial Park, Inc., located in Manatee County, Florida, and Gulf Pines Memorial Park, Inc. located in Sarasota County, Florida.
On December 17, 1988, Manasota Memorial Park, Inc. entered into a Joint Settlement Stipulation For Consent Order with the State of Florida, Department of Insurance wherein, among other things, Manasota Memorial Park, Inc. agreed to pay an administrative fine of $7,500.00 but did not admit to any violation of law. On January 11, 1989, the Insurance Commissioner signed a Consent Order incorporating the terms of the Joint Settlement Stipulation.
The Attorney General's office of the State of Minnesota commenced an investigation into Gibraltar's business practices in Minnesota. Gibraltar agreed to settle this matter for approximately $75,0000.00 but did not admit to any violation of law. Approximately two years later Gibraltar sold its business in Minnesota and no longer has any business interest in Minnesota.
Neither the settlement with the State of Minnesota nor the settlement with the State of Florida, Department of Insurance was disclosed in Question 16 of Gibraltar's Application which provides in pertinent part as follows:
Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, denied , or otherwise act [sic] against?
At the time of the tentative approval of the Application, the Department had only checked for consumer complaints filed against Hillcrest. Subsequently, the Department checked for administrative or regulatory actions that had been filed against Gibraltar. There were no administrative or regulatory actions pending (open cases) against Gibraltar. No enforcement actions had been filed against Gibraltar by the Department's Bureau of Examinations.
Since the review of Gibraltar's trust accounts is an ongoing process by the Department, the Department's review of the Application did not include a review of Gibraltar's trust accounts per se. However, the Department relied on a review of all administrative actions to determine if any administrative action had been taken against Gibraltar for trust account deficits. There had been no administrative action taken against Gibraltar for trust account deficits.
From January, 1988 through December 1992, there were 139 of the 667 consumer complaints or inquires filed with the Department with regard to cemetery companies filed against Gibraltar or its subsidiaries. The Department found no violations, had no jurisdiction, took no action or received inquires or information requests in 110 of the 139 instances. During this same period, Gibraltar entered into 70,000 contracts with customers in Florida.
Gibraltar enforces ethical sales policies and has a system designed to resolve customer complaints. There was no competent substantial evidence to show that Gibraltar's salespersons used "high pressure" sales tactics.
There was no evidence that the Department had ever taken any action against a license of a cemetery owned by Gibraltar or one of its subsidiaries.
There was no competent substantial evidence to show that Gibraltar's acquisition of Palms Memorial Park would adversely affect competition in the local market of Sarasota and Manatee, County.
It is the Department's position that competition is not an issue to be considered when reviewing an application for transfer of control of an ongoing cemetery pursuant to Section 470.007, Florida Statutes.
There is competent substantial evidence to show that Gibraltar has met the requirements of Section 497.007, Florida Statutes, and Rule 3d-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 497.007(2), Florida Statutes, provides as follows:
(2) Any person who seeks to purchase or acquire control of an existing licensed cemetery shall first apply to the department for a certificate of approval for the proposed change of ownership. The application shall contain the name and address of the proposed new owner and other information required by the department. 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. The department may examine the records of the cemetery as part of the investigation in accordance with s. 497.011(2)(b). The application shall be accompanied by a fee of $5,000. (Emphasis supplied)
The Department has interpreted Section 497.007, Florida Statutes, as the Department's authority for allowing external change of control of an existing cemetery where the assets of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, are being purchased and also its authority for allowing external change of control of an existing cemetery company where the capitol stock of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, is being acquired.
Relying on this interpretation and acting on the authority granted the Department by the Legislature in Section 497.011(1)(a), Florida Statutes, to adopt and enforce rules governing the operation of cemeteries in the State of Florida, the Department adopted Rule 3D-30.017, Florida Administrative Code, which implements Section 497.007, Florida Statutes, and in pertinent part provides:
3D-30.017 Procedure for Licensing Transferred Cemeteries.
Application. When a person, a group of persons or a corporation proposes to purchase or acquire control of an existing cemetery company either by purchasing the outstanding capital stock of any cemetery company, or the interest of the owner or owners, and thereby to change the control of said cemetery company, such person shall file an Application For Authority To Acquire Control Of An Existing Cemetery Company, Form
DBF-F-35, effective October 23, 1991, which is hereby incorporated by reference. This application shall be accompanied by a non- refundable fee of $5,000. (Emphasis supplied)
* * *
Investigation. The Department shall investigate the following conditions:
Character, reputation, financial standing, business qualifications and motives of the new proponents;
Legal entity;
Capitalization;
Whether money is due any of the trust funds, unless waived;
Current financial statement for each proponent;
Biographical sketch for each proponent.
Issuance of license. If the department finds that the proposed owner or owners of the existing cemetery company has in good faith complied with the lawful requirements, it shall issue a new cemetery license.
Section 497.005(2)(5) and (7), Florida Statutes, define "Cemetery", "Cemetery company" and "Department" as follows:
(2) "Cemetery" means a place dedicated to and used or intended to be used for permanent interment 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.
* * *
(5) "Cemetery company" means any legal entity that owns or controls cemetery lands or property.
* * *
(7) "Department" means the Department of Banking and Finance.
In contrast to the language of Section 497.007(2), Florida Statutes, referring to purchasing or acquiring control of a "existing licensed cemetery", the language of Section 497.008, Florida Statutes, refers to "stockholders or partners acquiring control of an "existing cemetery company" while Section 497.006(2), Florida Statutes, refers to establishing a "cemetery company". Notwithstanding that a cemetery cannot be licensed per se, it appears that the Legislature intended to use the language "existing licensed cemetery" in Section 497.007(2), Florida Statutes, to mean an existing cemetery that is owned and control by an "existing cemetery company" that is licensed to operate an "existing (licensed) cemetery". By using this language, the Legislature appears to have created a procedure whereby a legal entity could gain control of an "existing (licensed) cemetery" by either purchasing the assets (existing cemetery) or by acquiring the capitol stock of an existing cemetery company that owned, controlled and was licensed to operate the "existing (licensed) cemetery". This is further buttressed by the statutory definition of "cemetery" which clearly connotes "assets" while the statutory definition of "cemetery company" is the ownership of the assets.
Whether the Department's interpretation is appropriate depends on whether the Department's interpretation is a permissible construction of the law. In resolving this issue, it is noted that an administrative construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. Department of Professional Regulation, Board of Medical Examiners v.Durrani, 455 S.2d 515 (1 DCA Fla. 1984); Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So.2d 1141, 1142 (1 DCA Fla. 1986). Even so, the statutory construction must be a permissible one and not "any conceivable construction of a statute. . .irrespective of how strained or ingeniously reliant on implied authority it might be". State of Florida, Board of Optometry, et al v. Florida Society of Ophthalmology, et al, 538 So.2d 878 (1 DCA Fla. 1989). Where an agency construes the statute in its charge in a permissible way, that interpretation must be sustained though another interpretation may be possible or even, in the view of some, preferable. State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (1 DCA Fla. 1981). Such a construction as the Department has placed on Section 497.007, Florida Statutes, is reasonable and while this interpretation is not the only one that could be given to the statute or may not be this most desirable, it is a permissible construction of the law and is not "clearly erroneous".
Having concluded that the Department's interpretation of Section 497.007, Florida Statutes, is a permissible one, it must be shown that Gibraltar has met the requirements of Section 497.007, Florida Statute, and Rule 3D- 30.017, Florida Administrative Code, to acquire Palms Memorial Park, an existing
(licensed) cemetery, and to be issued a license to operate Palms Memorial Park. Gibraltar, as the applicant, has the burden to prove that Gibraltar has met the requirements of Section 497.007, Florida Statute, and Rule 3D-30.017, Florida ADministrative Code, and thereby entitled to acquire control of Palms Memorial Park and to be issued a license to operate Palms Memorial Park. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). Based on the foregoing Findings of Fact, Gibraltar has sustained this burden.
Petitioners contend that Gibraltar's Application should be subject to review under Section 497.006, Florida Statutes, and Rule 3D-30.015, Florida Administrative Code, which deal with establishing a cemetery company and requires the Department, among other things, to determine the need for a new cemetery in the community. Palms Memorial Park is not a new cemetery in the community. Palms Memorial Park is an existing cemetery and any competition to the activities of the Petitioners already exist. There is no basis for the Department to evaluate this Application in terms of the need for a new cemetery.
Additionally, Petitioners contend that Section 497.027, Florida Statutes, is applicable when reviewing an application where the external change of control of an existing (licensed) cemetery is being accomplished by purchasing the assets of the existing cemetery company. Section 497.027, Florida Statutes, requires that the licensee maintain 15 contiguous acres to be used as a cemetery and further requires Department approval if the licensee plans on selling, conveying or disposing of any dedicated land which is contiguous, adjoining or adjacent to the minimum 15 acres. Clearly, the language of this section dictates that it is not applicable in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioners and allowing Gibraltar to purchase the assets of Hillcrest as detailed in the Agreement and be issued a license to operate Palms Memorial Park.
RECOMMENDED this day 25th of January, 1994, at Tallahassee, Florida.
WILLIAM R. CAVE
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 25th day of January, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6635, 92-6884, 92-6885 AND 92-7886
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Petitioners, Venice Memorial Gardens, Inc., Toale Brothers Inc., and Brown and Sons Funeral Home, Inc.'s Proposed Findings of Fact:
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2-7(1,7,8,9,10 & 12, respectively); 8,9 & 11(28);12(10);19(35); 20(36); 21(35); 24(30); 27- 30(37,38,41 & 28, respectively);32(3); 36(2); 37(19); 39 & 41(4); 42(19); 43(5); 45(6); 46(1); 47(11); 48(20); 49(12); 50(13); 51(25); 55-56(20); 60(12); 61(17); 76-79(18); and 80(19).
Proposed finding of fact 1 is covered in the Statement of The Issue. 3. Proposed findings of fact 10, 13 - 17, 22, 23, 25, 31, 33, 34, 35, 38,
40, 44, 57, and 63 - 75 are neither material nor relevant.
Proposed findings of fact 52, 53, 54, 58, 59 and 62 are legal opinions and should be covered in the Conclusions of Law.
Proposed findings of fact 18 and 26 are not supported by competent substantial evidence in the record.
Petitioners, David V. Toale and Brown, Edwards, Toale Funeral Home, Inc.'s Proposed Findings of Fact:
1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: A.1-A.6(18,19, otherwise neither material nor relevant); B.7-B.10(7,12, otherwise neither material nor relevant); C.11-C.40(10,12,13,28,30,32,35,36,37, otherwise neither material nor relevant, cumulative or not supported by competent evidence in the record)); D.41-D.44(7,8,12 & 13, otherwise neither material nor relevant, cumulative, subordinate or unnecessary); E.45-E.50(3, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); F.51-F.53(2,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); G.54-G.57(4,19, otherwise neither material nor relevant or not supported by competent
substantial evidence in the record); H.58-H.60(5, otherwise neither material nor relevant); I.61-I.80(11,15,17,20,21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); J.81-J.85(21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); K.86- K.91(20,35, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); L.92-K.93(17,21); M.94-M.100(8,12,17, otherwise neither material nor relevant); M.101-M.103(11,12,13, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); N.104-M.107(21, otherwise neither material nor relevant, cumulative, or unnecessary); O.108-
O.113 (29,30,36,37,38,39,40 & 41, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); and P.114-P.120(35, otherwise neither material nor relevant, cumulative, unnecessary or not supported by competent substantial evidence in the record).
Respondent, Department's Proposed Findings of Fact:
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(12); 2(7); 3(21); 4-
6(23-25); 7(12); 9(24); 10(23); 11(20); 12-14(21); 15-16(25); 17(26); and
18(27).
Proposed findings of fact 8 and 19 are neither material nor relevant.
Respondent, Gibraltar's Proposed Findings of Fact:
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2(21); 3(23- 25); 4(17); 5(14,16); 6(17); 7(18); 8(21,22); 9(21); 10(25); 11(25-27); 12(12); 14(12); 16(21); 17-19(39-41); 20(41); 21(41); 23(29,43); 24-26(32-34); 27(28); 28(31); 29(13,15); and 30-33(44,45).
Proposed findings of fact 13, 15 and 22 are neither material nor relevant.
COPIES FURNISHED:
Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
William G. Reeves General Counsel
Office of the Comptroller The Capitol, Room 1302
Tallahassee, Florida 32399-0350
Edwin R. Hudson, Esquire Henry & Buchanan, P. A.
117 South Gadsden Street Tallahassee, Florida 32301
James R. Brewster, Esquire Suite 203, The Walker Building
547 North Monroe Street Tallahassee, Florida 32301
Bridget L. Ryan
Assistant General Counsel Office of the Comptroller The Capitol, Room 1302
Tallahassee, Florida 32399-0350
Harry R. Detwiler, Jr., Esquire Holland & Knight
Post Office Drawer 810 Tallahassee, Florida 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the
final order in this case concerning their 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
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STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF FINANCE
DAVID V. TOALE, Administrative Proceeding No: 2623-F-10/92
Petitioner,
vs. DOAH CASE NO. 92-6635
DEPARTMENT OF BANKING
AND FINANCE AND GIBRALTAR MAUSOLEUM CORPORATION,
Respondents.
/ VENICE MEMORIAL GARDENS, INC.,
Petitioner,
vs. DOAH CASE NO. 92-6884
DEPARTMENT OF BANKING
AND FINANCE AND GIBRALTAR MAUSOLEUM CORPORATION,
Respondents.
/ BROWN, EDWARDS, TOALE FUNERAL HOME, INC., d/b/a MANATEE MARKERS AND CEMETERY BROKERS,
Petitioners,
vs. DOAH CASE NO. 92-6885
DEPARTMENT OF BANKING
AND FINANCE AND GIBRALTAR MAUSOLEUM CORPORATION,
Respondents.
/
FINAL ORDER AND NOTICE OF RIGHTS
This matter has come before the undersigned as Head of the Department of Banking and Finance, Division of Finance ("Department") for the entry of a Final Order in the above- referenced proceeding. Upon a review of the entire record of this proceeding and due consideration thereof, the Recommended Order by the Hearing Officer is adopted in substantial part with one modification as contained herein, and Gibraltar Mausoleum Corporation is hereby granted the request to purchase the assets of Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park in accordance with Chapter 49, Florida Statutes, as more particularly set forth hereinafter.
BACKGROUND
This matter arose when the Intervenor Gibraltar Mausoleum Corporation ("Gibraltar') submitted an Application for Authorization to Acquire Control of an Existing Cemetery Company to the Department on July 31, 1992. On December 12, 1992, the Department published its Notice of Intent of Approve the Acquisition of Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park ("Hillcrest") by Gibraltar. Petitioners subsequently filed petitions protesting the acquisition, maintaining that said acquisition of assets by Gibraltar was improper. The Department then referred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer for the conducting of a formal administrative hearing. On April 29, 1993, a formal administrative hearing was held in this matter and a Proposed Recommended Order was issued by the Hearing Officer on January 25, 1994. Said Recommended Order recommended that the Department enter a Final Order denying the relief sought by the Petitioners and allowing Gibraltar to purchase the assets of Hillcrest as detailed in the Asset Purchase Agreement, and to be issued a license to operate Palms Memorial Park. A true and correct copy of this Recommended Order is attached hereto as Exhibit "A" and incorporated herein by reference.
On February 9, 1994, Petitioners filed their Joint Exceptions to the Hearing Officer's Recommended Order, a copy of which is attached hereto as Exhibit "B". On February 9, 1994, the Department filed its Exception to Recommended Order, a copy of which is attached hereto as Exhibit "C". On February 11, 1994, Petitioners filed their Supplement to the Wherefore Clause in Petitioners Joint Exceptions to the Hearing Officer's Recommended Order, a copy of which is attached hereto as Exhibit "D". No exceptions were filed by Gibraltar. As used herein, "TR" shall refer to "transcript".
RULINGS ON PETITIONERS' JOINT EXCEPTIONS TO THE HEARING OFFICER'S RECOMMENDED ORDER
Exceptions to the Statement of the Issue
Misstatement of the Issues
Issues Omitted in the Hearing Officer's Statement of the Issues
Petitioners' exceptions to the Statement of the Issue, I.A. Misstatement of the Issues and I.B. Issues Omitted in the Hearing Officer's Statement of the Issues are hereby rejected. Rule 3- 7.012(1), Florida Administrative Code provides, in pertinent part that:
"Exceptions shall state, with particularity, the basis for asserting that the hearing officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation.... (emphasis added)
Rule 28-5.405(3), Florida Administrative Code provides:
If a party files exceptions to a recommended order submits proposed findings of fact to the Agency, the final order shall include an explicit ruling on each exception or proposed finding of fact as well as a brief statement of grounds for denying the exception or proposed finding of fact; provided, however, an Agency is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts and such proposed facts may be rejected in the final order by simple statement that they are irrelevant or immaterial.
No provision exists for the filing of exceptions to the Statement of the Issue portion of the Hearing Officer's Recommended Order. Further, the Statement of the Issue advanced by Petitioners and the issues allegedly omitted have been advanced and argued within Petitioners' Pretrial Statements and Proposed Recommended Orders. It is within the Hearing Officer's discretion to frame the issues to be reviewed as he deems appropriate. Additionally, the legal conclusions reached by the Hearing Officer in his Recommended Order have implicitly rejected the Statement of the Issue and alleged omitted issues advanced by Petitioners.
Exceptions to the Preliminary Statement
Petitioners' Exception II., Exceptions to the Preliminary Statement is hereby rejected. See Rule 3-7.012(1) and 28-5.405(3), Florida Administrative Code. Further, Petitioners' exception to the language "and to issue a new license to Gibraltar" is irrelevant. Petitioners exception with respect to the notice published in the Florida Administrative Weekly sets forth proposed findings of fact improperly argued within this exception. Petitioners exception with respect to the legal arguments advanced by Petitioners in contesting the acquisition were advanced by Petitioners within their Pretrial Statements and Proposed Recommended Orders, which arguments were recognized and ruled on by the Hearing Officer within his Recommended Order. (See Appendix to Recommended Order).
Exceptions to the Findings of Fact
Exceptions to Numbered Findings
Exception to Paragraph 10: Petitioners' exception to paragraph (10) of the Findings of Fact is hereby rejected. As stated by the court in Polar Ice Cream & Creamery Company v. Andrews, 150 So.2d 504, 506 (Fla. 1st DCA 1963):
The necessity for basic findings to be made by... (the Division of Administrative Hearings) does not contemplate that. .. (the Division of Administrative Hearings) (is) required to outline step by step the evidentiary facts leading to the ultimate conclusion, but means that findings of fact on essential issues
must be such as to justify the entry of the final
order. Such findings are required to go no further than to point the pathway down which the appellate court may travel in reviewing the essential facts on the question of whether such facts justify the conclusion reached by the order.
Further, as stated by the court in Wong v. Career Service Commission, 371 So.2d 530, 531 (Fla. 1st DCA 1979):
(T)he administrative order must set forth the findings of fact with particularity, must explain the conclusions of law in light of the findings of fact, and must respond to countervailing arguments and proposed findings of fact submitted to the agency by a party. (citing McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977)).
As the Hearing Officer's Finding of Fact was sufficient to justify the conclusion reached by the Final Order, this exception is accordingly rejected.
Exception to Paragraph 11: Petitioners' exception to paragraph (11) of the Findings of Fact is hereby rejected. Polar Ice Cream & Creamery Company, 150 So.2d 504, 506. Further, while Petitioners' may deem this "undisputed fact" as to Gibraltar neither seeking or obtaining ownership or control over Hillcrest Cemetery, Inc. as being dispositive to the critical issue(s) of this case, this "undisputed fact" was considered by the Hearing Officer. (See Appendix to Recommended Order). As stated by the court in Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):
It is the Hearing Officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent, substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence supports two inconsistent findings, it is the Hearing Officer's role to decide between them.
It is the Hearing Officer's, not the agency's or the Petitioners' function to evaluate the evidence in reaching ultimate findings of fact. Since there was competent, substantial evidence in the record which the Hearing Officer relied on in reaching his finding, the Department concurs with said finding and Petitioner's exception to paragraph (11) of the Findings of Fact is likewise rejected.
Exception to Paragraph 12: Petitioners' exception to paragraph (12) of the Hearing Officer's Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. Further, these proposed facts" as to Gibraltar allegedly limiting its assumed liabilities and allegedly not assuming responsibility for burial rights was considered. (See Appendix to Recommended Order). (TR. at 262-263; schedules 2.1 and 2.2, Asset Purchase Agreement; Appendix to Recommended Order). As competent, substantial evidence existed in
the record which the Hearing Officer relied on in reaching his finding, the Department concurs with said finding, and Petitioners' Exception to paragraph
(12) of the findings of fact is likewise rejected.
Exception to Paragraph 14: Petitioners' exception to paragraph (14) of the Hearing Officer's Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. Further, the Department may review an application containing a purchase price redaction. (TR. at 57-60) Additionally, this exception inappropriately sets forth a legal conclusion which cannot be addressed within this finding of fact, and also was not raised within Petitioners' Proposed Recommended Orders.
Exception to Paragraph 15: Petitioners' exception to paragraph (15) of the Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. The Department has construed Rule 3D-30.029, Florida Administrative Code as permitting the Department to review an application with a purchase price redaction contained therein. (TR. at 59-60). The agency's interpretation of the statute or rule must be upheld if it is not unreasonable or outside the range of possible interpretations. Pershing Industries v.
Department of Banking and Finance, 591 So.2d 991 (Fla. 1st DCA 1991); Motel 6, Operating L.P. v. Department of Business Regulation, 560 So.2d 1322 (Fla. 1st DCA 1990). As stated previously, it is the Hearing Officer's function to evaluate the evidence in reaching ultimate factual findings. Since there was competent, substantial, evidence in the record which the Hearing Officer relied on in reaching his finding, the Department concurs with said finding and Petitioners' exception to paragraph (15) is likewise rejected.
Exception to Paragraph 16: Petitioners' exception to paragraph (16) of the Findings of Fact is hereby rejected. Competent, substantial evidence supported the Hearing Officer's finding that Gibraltar furnished the Department the information and documents requested in Department's letter of August 6, 1992, which brought the application in compliance with Rule 3D-30.017, Florida Administrative Code, (TR. at 16-17, 57-58) and the Department concurs in said finding. Further, this finding of fact, as drafted, does not constitute a legal conclusion.
Exception to Paragraph 17: Petitioners' exception to paragraph (17) the Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to the order's ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. The Department had no question as to Gibraltar's character, experience, or financial responsibility to acquire Palms Memorial Park. (TR. at 16-18, 26-27) The Department did review consumer complaints and enforcement history regarding Gibraltar (TR. at 34, 65, 67 and 122-123), determined it irrelevant or as having no impact on the determination. (TR. at 70). The Department examined Gibraltar's financial position based on the financial statement attached to the application and the financial statements of the shareholders which were included with the application. (TR. at 38 and 105) It is the Department's position that it evaluated Gibraltar's request to purchase the assets of Hillcrest in accordance with Rule 3D- 30.017, Florida
Administrative Code. (TR. at 47). The Department was not required to investigate or consider any of the factors delineated by Petitioners' within their exception to paragraph (17) of the Findings of Fact. As stated previously, the Department's interpretation of this rule must be upheld as this interpretation was not unreasonable or outside the range of possible interpretations. Competent, substantial evidence supported the Hearing Officer's determination that consideration of these factors was not required and the Department concurs in said finding. Accordingly, Petitioners' Exception to paragraph 17 of the findings of fact is hereby rejected.
Exception to Paragraph 20: Petitioners' exception to paragraph (20) of the Findings of Fact is hereby rejected. The Department has interpreted Section 497.007, Florida Statutes and Rule 3D-30.017, Florida Administrative Code as authorizing the external change of control of an existing cemetery where either the stock is acquired or the assets purchased of an existing cemetery company that owns, controls, and is licensed to operate the existing cemetery. Form
DBF-F-35 is the application form required under Section 497.007, Florida Statutes and Rule 3D- 30.017, Florida Administrative Code to be filed by an applicant seeking to acquire control of an existing cemetery by acquiring the stock or by purchasing the assets of the existing cemetery company that owns, controls, and is licensed to operate the existing cemetery. The Department uses the same application form for both asset sales and stock sales. If an applicant, in an asset sale, complies with Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, the Department will issue the applicant a license. (TR. at 16-18, 43-61, 99) As stated previously, the Department's interpretation of this statute and rule must be upheld as this interpretation is not unreasonable or outside the range of possible interpretations. Further, as competent, substantial evidence supported the Hearing Officer's determinations, and the Department concurs in said finding, Petitioners' Exception to paragraph 20 of the Hearing Officer's findings of fact is accordingly rejected.
Exception to Paragraph 21: Petitioners' exception to paragraph (21) of the Findings of Fact is hereby rejected. Section 497.006, Florida Statutes only applies to applicants seeking to establish a new cemetery. (TR. at 45, 107, 108, 110- 111, 114). Rule 3D-30.015, Florida Administrative Code implements Section 497.006, Florida Statutes. Section 497.007, Florida Statutes provides a method for obtaining approval for a change in ownership of an existing licensed cemetery. (TR. 26, 46-47, and 264) Rule 3D-30.017, Florida Administrative Code applies when a person seeks to change control of the cemetery company by either purchasing the stock or the owner's interest, as in an asset purchase of the cemetery company. Further, pursuant to Rule 3D-30.017(5), Florida Administrative Code, when the applicant meets the requirements of this rule, the Department shall issue a new license to the applicant. Obviously, the rules and statutes in place clearly set forth separate procedures to be followed with respect to the licensing of new and existing cemetery companies. The explicit nature of these different procedures clearly establishes that one seeking to acquire control of an existing licensed cemetery must comply with Section 497.007, Florida Statutes and Rule 3D-30.017, Florida Administrative Code, as opposed to Section 497.006, Florida Statutes and Rule 3D-30.015, Florida Administrative Code. There is no rationale for an applicant under Section 497.007, Florida Statutes to be required to meet the new licensing requirements as set forth in Section 497.006, Florida Statutes: all of the requirements under Section 497.006, Florida Statutes have already been previously met, when the cemetery company was first established. An interpretation of Section
497.006(2) and (3), Florida Statutes as applying to Gibraltar's request for licensure, if accepted, would leave Section 497.007(2), Florida Statutes without any application.
While Petitioners' contend that the Department should consider Section 497.027, Florida Statutes when reviewing an application to acquire control of an existing licensed cemetery, and thus, Section 497.027, Florida Statutes should be considered and applied in this case, the language of Section 497.027, Florida Statutes clearly establishes that this section is not applicable to the facts of this case. The plain language of Section 497.027, Florida Statutes requires that a licensee maintain fifteen (15) contiguous acres to be used for the cemetery. Further, Section 497.027, Florida Statutes requires that the licensee obtain approval from the Department in the event that the licensee intends to sell, convey, or dispose of any dedicated land, which dedicated land is contiguous, adjoining, or adjacent to the minimum fifteen (15) acres. Certainly the plain language of Section 497.027, Florida Statutes dictates that this section does not apply in the case at bar. The Department has not applied Section 497.027(2), Florida Statutes to Gibraltar's application because this section only applies when the cemetery company or purchasing entity is attempting to use land currently dedicated for cemetery use for something other than as a cemetery. (TR. at 120-121).
Petitioners' interpretations of Sections 497.006, 497.007, and 497.027, Florida Statutes and Rule 3D-30.017, Florida Administrative Code are contrary to the existing statutes and rules in place, and are misinterpretations of the plain and unambiguous language of the statutes and rules. State Ex Rel.
Florida Jai Alai, Inc. v. State Racing Commission, 112 So.2d 825 (Fla. 1959); Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 493 So.2d 1055 (Fla. 1st DCA 1986). Further, as stated previously, the Department's interpretation of these statutes and rules must be upheld as said interpretations are not unreasonable or outside the range of possible interpretations. The Hearing Officer, in evaluating the evidence presented, determined that there was competent, substantial evidence in reaching this factual finding, and the Department concurs in said finding. Accordingly, Petitioners' Exception to Paragraph (21) of the Findings of Fact is rejected.
Exception to Paragraph 22: Petitioners' exception to paragraph (22) of the Findings of Fact is hereby rejected. See ruling on Petitioners' exception to paragraph (21) infra.
Exception to Paragraph 23: Petitioners' exception to paragraph (23) of the Findings of Fact is hereby rejected. As stated previously, it is the Hearing Officer's, not the agency's or the Petitioners' function to evaluate the evidence in reaching ultimate findings of fact. The Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on the essential issues in order to justify the order's legal conclusions. Additionally, this exception contains unfounded and irrelevant conjecture and argument.
Exception to Paragraph 24: Petitioners' exception to paragraph (24) of the Findings of Fact is hereby accepted. See ruling as contained within the Department's exceptions, supra.
Exception to Paragraph 26: Petitioners' exception to paragraph (26) of the Findings of Fact is hereby rejected. The Hearing Officer did find this finding of fact to be both material and relevant to the issues presented in this case.
Competent, substantial evidence existed in the record which supported the Hearing Officer's determination that there was no evidence that the Department had experienced any regulatory problems in approving the external change of control of existing cemeteries where there was an asset acquisition of the existing cemetery company that owned, controlled, and was licensed to operate the existing cemetery. (TR. at 19, 21, 25, 98). As such, Petitioners' exception to paragraph (26) of the Findings of Fact is hereby rejected.
Exception to Paragraph 27: Petitioners' exception to paragraph (27) of the Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. Further, the proposed addition to paragraph (27) of the Findings of Fact as contemplated by Petitioners is irrelevant to the issues in this case.
Exception to Paragraph 29: Petitioners' exception to paragraph (29) of the Findings of Fact is hereby rejected. As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions, Further, Petitioners exception includes an erroneous legal conclusion improperly set forth within this finding of fact. No factual support exists for Petitioners contention that Gibraltar's failure to state whether or not any of its shareholders ever had a license "acted against" is a violation that requires the application to be declined by the Department.
Exception to Paragraph 32: Petitioners' exception to paragraph (32) of the Findings of Fact is hereby rejected. Competent, substantial evidence supported the Hearing Officer's determination that Gibraltar is a financially solvent company. (TR. at 260, 265; See exception to paragraph (17), infra). The Hearing Officer's Recommended Order sets forth its Findings of Fact with particularity, explains the conclusions of law in light of these findings of fact, and has responded to Petitioners arguments as well as proposed findings of fact submitted to the Hearing Officer by the Petitioners. Accordingly, Petitioners Exception to Paragraph (32) of the Findings of Fact is rejected.
Exception to Paragraph 33: Petitioners' exception to paragraph (33) of the Findings of Fact is hereby rejected. See ruling on Exception to Paragraph (17), infra.
Exception to Paragraph 34: Petitioners' exception to paragraph (34) of the Findings of Fact is hereby rejected. Petitioners' failed to propose this finding within their Recommended Orders. Gibraltar has the financial responsibility necessary to purchase and operate Palm Memorial Park. (TR. at 216, 265; rulings on Exception to Paragraph (17), infra). As competent, substantial evidence supported the Hearing Officer's determination, the Department concurs with said finding, and Petitioners' Exception to Paragraph
(34) of the Findings of Fact is rejected.
Exception to Paragraph 35: Petitioners' exception to paragraph (35) of the Findings of Fact is hereby rejected. Competent, substantial evidence supported the Hearing Officer's Finding of Fact (TR. at 146, 176 and 178), with which the Department concurs. Further, the distinction which Petitioners' attempt to make has no legal significance with respect to the facts and issues in this case.
Exception to Paragraph 39: Petitioners' exception to paragraph (39) of the Findings of Fact is hereby rejected. As stated previously, the Department maintains that it was authorized to review Gibraltar's Asset Purchase Agreement with the redacted information. (See ruling on Exception to Paragraph (14) of the Findings of Fact, infra). The Department's interpretation of this rule was not unreasonable or outside the range of possible interpretations, and thus, will be upheld. Further, Petitioners failed to propose this finding within their Recommended Orders and this exception inappropriately sets forth a legal conclusion.
Exception to Paragraph 42: Petitioners' exception to paragraph (42) of the Findings of Fact is hereby rejected. The evidence submitted by Petitioners in support of their allegation that Gibraltar used high pressure sales tactics was considered by the Hearing Officer. (Paragraph (42) Findings of Fact; Appendix to Recommended Order ). However, evidence was presented that Gibraltar enforces ethical sales policies and conducts itself in accordance with Florida law, and has a system designed to resolve consumer complaints. (TR. t 209-212). As stated previously, it is not for the Department or the Petitioners to reweigh or evaluate the evidence, which obligation is specifically within the Hearing Officer's forum. As such, Petitioners' Exception to Paragraph (42) of the Findings of Fact is hereby rejected.
Exception to Paragraph 44: Petitioners' exception to paragraph (44) of the Findings of Fact is hereby rejected. (See ruling on Exception to Paragraph (17) of the Findings of Fact, infra). While Petitioners' contend that the Department should consider the competition implications arising from the consummation of the change of control, Chapter 494, Florida Statutes only requires that the Department evaluate the competitive environment with respect to Section 497.006, Florida Statutes, where an application is submitted to the Department to create a new cemetery. Further, under Section 497.006(3), Florida Statutes, competition is only relevant in determining whether a need survey may be waived in order to allow new cemeteries into a market which does not technically meet the need for a new cemetery. (TR. at 112-114). Petitioners' argument that the Department should have investigated, analyzed, and evaluated the issue regarding adverse competition in the local markets of Sarasota and Manatee Counties, Florida is a misinterpretation of the plain and unambiguous language of the statutes and rules in place. The agency's interpretation of the statute as not providing for such an investigation is not unreasonable or outside the range of possible interpretations. Section 497.007, Florida Statutes, which controls this licensure decision (See ruling on Exception to Paragraph (21) of the Findings of Fact, infra) does not require the Department to perform any type of economic analysis when processing an application to acquire control of an existing licensed cemetery. (TR. at 62, 63). As stated previously, it is the Hearing Officer's function to evaluate the evidence in reaching ultimate findings of fact, not that of the Department or the Petitioners. Further, competent, substantial evidence exists in the record which the Hearing Officer relied on in reaching this Finding of Fact, and the Department concurs in said finding. Accordingly, Petitioners' exception to paragraph 44 of the Hearing Officer's Findings of Fact is likewise rejected.
Exception to Paragraph 46: Petitioners' exception to paragraph (46) of the Findings of Fact is hereby rejected. The Hearing Officer considered Petitioner's argument that the rule required that the Applicant propose to purchase or acquire control of an existing cemetery company. (paragraphs 50-54, Conclusions of Law, Recommended Order). Petitioners' argument was rejected. As the Department's interpretation of this statute and rule in place was not unreasonable or outside the range of possible interpretations, the conclusion
that Gibraltar met the requirements of Section 497, Florida Statutes and Rule 3D-30.017, Florida Administrative Code was accepted by the Hearing Officer.
Competent, substantial evidence supported the Hearing Officer's determination that Gibraltar met the requirements of the aforestated statutory and rule provisions, and the Department concurs in said finding. Accordingly, Petitioners' Exception to Paragraph (46) of the Findings of Fact is rejected.
Facts Omitted in the Hearing Officer's Finding of Fact
Petitioners' exception B. as to Facts Omitted in the Hearing Officer's Findings of Fact is rejected. The Hearing Officer considered these proposed findings of fact within his Recommended Order. (Appendix to Recommended Order) As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leaving to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. As stated previously, the administrative construction of a statute by the agency responsible for its administration is entitled to great weight and must be upheld unless clearly erroneous. Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So.2d 1141, 1142 (Fla. 1st DCA 1986); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, (Fla. 1st DCA 1984). The Department's construction of Rule 3D-30.017(1), Florida Administrative Code is not clearly erroneous, and thus, will be upheld herein. Further, competent, substantial evidence supported the Hearing Officer's determinations as contained within the Findings of Fact, as stated in the rulings on the exceptions herein.
Exceptions to Conclusions of Law
Exceptions to Numbered Findings
Exception to Paragraph 48.: Petitioners' exception to paragraph (48) of the Hearing Officer's Conclusions of Law is hereby rejected. The Hearing Officer's Proposed Conclusion of Law sets forth the text to Section 497.007(2), Florida Statutes. While emphasis was placed on certain portions of this statutory section, it is within the Hearing Officer's discretion to apply the statute to the facts and issues as presented in this case. Contrary to Petitioners' arguments as made within this exception, it is not "clear" that the Hearing Officer failed to recognize that "the term certificate of approval' is used repeatedly in subsection (2) of Section 497.007, Florida Statutes (1991); and (ii) said section does not provide for the issuance of any license".
Exception to Paragraph 49: Petitioners' exception to paragraph (49) of the Hearing Officer's Conclusions of Law is hereby rejected. See ruling on Exception to Paragraph 21 of the Hearing Officer's Findings of Fact infra. This exception as drafted inappropriately sets forth numerous proposed factual findings. Petitioners' seek to add other statutory and rule provisions to this particular legal conclusion, which have no legal relevance to paragraph (49) of the Conclusions of Law. The Hearing Officer considered Petitioners' arguments within his Recommended Order. (Appendix to Recommended Order). As stated previously, the Hearing Officer's Recommended Order is not required to outline step by step the evidentiary facts leading to its ultimate conclusion, but rather, must simply enter findings of fact on essential issues in order to justify the order's legal conclusions. The Hearing Officer's Recommended Order has set forth its findings of fact with particularity, has explained its conclusions of law in light of the findings of fact and has responded to countervailing arguments and proposed findings of fact submitted to him by the
parties. As such, the Department concurs with Paragraph (49) of the Hearing Officer's Conclusions of Law, and accordingly rejects Petitioners' Exception thereto.
Exception to Paragraph 50: Petitioners' exception to paragraph (50) of the Hearing Officer's Conclusions of Law is hereby rejected. A legal entity may gain control of an existing licensed cemetery by either purchasing the assets or acquiring the capital stock of an existing cemetery company that owns, controls, and is licensed to operate the existing cemetery. (See ruling to exception (21) of the Findings of Fact, infra). While a cemetery cannot be licensed per se, the Legislature apparently intended to use the language of "existing licensed cemetery" in Section 497.007(2), Florida Statutes to mean an existing cemetery that is owned and controlled by an "existing cemetery company" that is licensed to operate an "existing (licensed) cemetery". The Department has construed Section 497.007, Florida Statutes as allowing an entity to gain control of a cemetery when it purchases the assets of the cemetery company. (TR. at 26). As stated previously, the Department's interpretation of this statutory provision is entitled to great weight and persuasive value. Accordingly, the Department accepts Paragraph (50) of the Hearing Officer's Conclusions of Law. Further, the fact that Gibraltar is not purchasing the outstanding capital stock of Hillcrest or the interest of Arbor Capital, Inc. is irrelevant.
Exception to Paragraph 52: Petitioners' exception to paragraph (52) of the Hearing Officer's Conclusions of Law is hereby rejected. (See ruling to Exception to Paragraph (50) of the Conclusions of Law, infra). As stated herein, the Department's interpretation of Sections 497.006 and 497.007(2), Florida Statutes and Rule 3D-30.017, Florida Administrative Code are permissible constructions within the Department's discretion, and accordingly, the Hearing Officer's legal conclusion is concurred with and will be upheld.
Exception to Paragraph 53: As stated herein, the Department's construction of this statute, administered by the Department, is entitled to great weight and will not be overturned as it is not clearly erroneous. Petitioners' exception to paragraph (53) of the Hearing Officer's Conclusions of Law is hereby rejected. Further, Petitioners' argument that the "deference doctrine" has been inappropriately applied in this case is completely unfounded. Petitioners' argument that the Department has applied a "non rule policy over approving cemetery asset transactions" is specifically rejected. Rule 3D-30.017, Florida Administrative Code sets forth the procedure to be followed when licensing a transferred cemetery. No requirement exists that another rule be promulgated for usage in the approving of cemetery asset transactions, as suggested by Petitioners. The Department does concur in Petitioners' statement that "the Department's interpretation of Section 497.007(2), Florida Statutes, as set forth in Rule 3D-30.017, Florida Administrative Code which obviously has been promulgated in rulemaking proceedings must be upheld as it is reasonably related to the legislative purpose of Chapter 497, Florida Statutes, and is not arbitrary or capricious." (Exceptions, page 30).
Exception to Paragraph 54: Petitioners' exception to paragraph (54) of the Hearing Officer's Conclusions of Law is hereby rejected. Petitioners' argument that the Department is limited to issuing a "certificate of approval" for the change in ownership of the cemetery company was considered by the Hearing Officer. (See Appendix to Recommended Order) The Department has construed Section 497.007, Florida Statutes (1991) as providing the statutory authority for granting this licensure request. This interpretation, which is not clearly erroneous, is accepted herein and thus, Petitioners Exception to Paragraph (54) of the Hearing Officer's Conclusions of Law is accordingly rejected.
Exception Paragraph 55: Petitioners exception to paragraph (55) of the Hearing Officer's Conclusions of Law is hereby rejected. See rulings on exception to paragraph (21) of the Findings of Fact, infra. Further, paragraph
(56) of the Hearing Officer's Conclusions of Law specifically addresses Petitioners' Proposed Legal Conclusion as advanced in Petitioners' exception to paragraph (55) of the Conclusions of Law.
Exception Paragraph 56: Petitioners' exception to paragraph (56) of the Hearing Officer's Conclusions of Law is hereby rejected. Petitioners' only have standing to contest legal action with respect to the facts of this particular case. Petitioners' appear to argue that this Hearing Officer should disregard the facts of this case in reaching his legal conclusions, which is clearly inappropriate. Further, see ruling to exception (21) of the Findings of Fact, infra.
CONCLUSIONS OF LAW OMITTED BY HEARING OFFICER
Petitioners' exception "B". Conclusions of Law omitted by Hearing Officer are hereby rejected. Each of these proposed legal conclusions are legally irrelevant to the issues involved in this case. Petitioners' contend that:
Proper notices were not given by the Department. The Department specifically rejects this legal conclusion. The Department complied with Section 497.091, Florida Statutes (1991) in publishing its notice. Petitioners' allegations that additional information was necessary and that due process required additional circulation of the notices is rejected. The Department's interpretation of Section 497.091, Florida Statutes (1991) is a permissible one, and thus, Petitioners exception is hereby rejected.
& 3. Petitioner's arguments that the Hearing Officer should have reached a legal conclusion as to whether a Florida cemetery company may own more than one cemetery and whether a Florida cemetery company may engage in activities outside the ones permitted under Section 497.033, Florida Statutes are legally irrelevant in this case and thus, are rejected.
Petitioner's proposed legal conclusion as to whether the Department had the ability to approve either a change of the settlor and/or the transfer of irrevocable care and maintenance trust funds, with or without the consent of the affected beneficiaries/owners of burial rights is legally irrelevant in this case and, thus, is rejected.
Petitioners' proposed conclusion of law as to whether the Department may issue a license under 497.007, Florida Statutes has been ruled on throughout the Hearing Officer's Conclusions of Law. Further, see ruling on exceptions to paragraph (21) of the Findings of Fact, infra.
7. & 8. Petitioners' Proposed Conclusions of Law numbered 6 and 7 as to whether a Florida cemetery company has a continuing obligation to care and maintain the perpetual care cemetery and whether perpetual care cemetery land may be transferred without the approval of the affected owners of burial rights are legally irrelevant to this proceeding. Petitioners proposed conclusion of law numbered eight as to whether Section 497.027, Florida Statutes (1991) is the exclusive authority for the sale of Florida perpetual care cemetery lands was previously ruled on within the Hearing Officer's conclusions of law. Further, the Department rejects this proposed legal conclusion. See ruling on exception to paragraph (21) of the findings of fact, infra.
Petitioners' Proposed Conclusion of Law number 9 as to whether the Department was required by law to consider economic matters, matters of competition, and/or the impact upon the public, in investigating the application was previously ruled upon by the Hearing Officer within his Recommended Order. Further, the Department rejects this proposed conclusion. See ruling on exception to paragraph (17) of the findings of fact, infra.
Petitioners' Proposed Conclusion of Law number 10 as to whether the Department followed Rule 3D-30.017, Florida Administrative Code in approving the sale of the perpetual care cemetery land know as Palms Memorial Park was previously ruled upon by the Hearing Officer in his Recommended Order. The Department rejects this proposed legal conclusion. Further, see ruling on exception to paragraph (21) of the findings of fact infra.
CONCLUSION
Petitioners' conclusion to their exceptions to the Recommended Order is hereby rejected. See Rule 3-7.012(1), Florida Administrative Code and 28- 5.405(3), Florida Administrative Code.
SUPPLEMENT TO THE WHEREFORE CLAUSE IN PETITIONERS' JOINT EXCEPTIONS TO THE HEARING OFFICER'S RECOMMENDED ORDER
Petitioners' supplement to the wherefore clause in Petitioners' joint exception to the Hearing Officer's Recommended Order filed on February 11, 1994 has been considered by the Department. Petitioners' request that the Department stay the issue or effect to the license proposed to the issue to Gibraltar until such time as all related litigation and appeals are ultimately resolved by the Courts is hereby DENIED. No danger to he health, safety or welfare of the public exists so as to justify Petitioners' request. Further, Petitioners' recourse in this matter is to appeal this Final Order, as opposed to the Department's staying the issuance or effect of the license proposed to be issued to Gibraltar.
DEPARTMENT'S EXCEPTION TO RECOMMENDED ORDER
The Department's exception to paragraph (24) of the Hearing Officer's Findings of Fact is hereby accepted. The Department began asset acquisitions sometime in the late 70's and definitely by 1980. (Intervenor's Composite Exhibit 3, Department's Answer to Interrogatory number 19 of Venice Memorial Gardens, Inc. First Set of Interrogatories); (TR. 19) While at hearing the Department's representative testified as to a table he had prepared regarding asset and stock purchases review by the Department since October 1, 1989 (TR. 93-94), this testimony did not establish that the Department did not begin approving stock purchases until October 1, 1989. The remainder of the record contains no evidence establishing that up until five years ago, the Department
only approved asset acquisitions. Based upon a complete review of the record in this proceeding, no competent, substantial evidence supported this finding of fact by the Hearing Officer. Therefore, as no evidence supports the Finding of Fact contained in paragraph (24) of the Recommended Order which implied that the Department did not approve stock purchases prior to 1989, the Department's exception to paragraph (24) of the Findings of Fact is hereby accepted.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact as contained within the Recommended Order are accepted as true and correct and are adopted as the Findings of Fact of this Final Order and Notice of Rights, with the exception of paragraph (24) of the Findings of Fact as ruled on herein.
CONCLUSIONS OF LAW
The Hearing Officer's conclusions of laws contained within the recommended order are accepted as true and correct and are adopted as the conclusions of law of this final order and notice of rights.
FINAL ORDER
Having ruled on all the exceptions filed by the Petitioners' and the Department, and having completed a careful review of the complete record in these proceedings, including the entire transcript of the final administrative hearing, and the Proposed Recommended Orders and Memoranda of Law filed by the parties, it is accordingly ORDERED:
That the Application of Gibraltar for authority to acquire control of an existing cemetery company is hereby approved. Gibraltar may therefore purchase the assets of Hillcrest as detailed in the Asset Purchase Agreement and is hereby issued a license to operate Palms Memorial Park.
DONE and ORDERED in Tallahassee, Leon County, Florida, this 11th day of March, 1994.
GERALD LEWIS, as Comptroller of the State of Florida and Head of the Department of Banking and Finance
COPIES FURNISHED:
Linda G. Dilworth, Director Division of Finance
Bridget L. Ryan
Assistant General Counsel
NOTICE OF RIGHTS 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 (1) COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BANKING AND FINANCE AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and Notice of Rights was sent by U.S. Mail to James Brewster, 547 North Monroe Street, Tallahassee, Florida 32301, Edwin R. Hudson, Esquire, The Perkins House, Suite 200 118 N. Gadsden Street, Tallahassee, Florida 32301 and Harry Detwiler, Jr., Post Office Box 810, Tallahassee, Florida 32302, this 11th day of March, 1994.
ELISE M. GREENBAUM
Assistant General Counsel Office Comptroller
The Capitol, Suite 1302 Tallahassee, Florida 32399-0350
(904) 488-9896
| Issue Date | Proceedings |
|---|---|
| Jul. 25, 1995 | Final Order and Notice of Rights filed. |
| Apr. 19, 1995 | CC: Letter to F.E. Steinmeyer from J. Brewster (RE: verifying that hearing has been cancelled) filed. |
| Apr. 05, 1995 | Plaintiff`s notice of voluntary dismissal of entire action (plaintiff) filed. |
| Jun. 20, 1994 | Initial Joint Brief of Appellants filed. |
| Apr. 19, 1994 | Petitioners`/Appellants` joint directions to the clerk filed. |
| Apr. 12, 1994 | Appellant`s response to show cause order filed. |
| Mar. 30, 1994 | Appellee Hillcrest`s motion to strike notice of supplemental authority filed. |
| Mar. 24, 1994 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Mar. 24, 1994 | Appellant`s Notice of filing supplemental authority filed. |
| Mar. 23, 1994 | (Petitioner) Motion for Emergency Stay Pending Review filed. |
| Feb. 14, 1994 | Supplement to the Wherefore Clause in Petitioners` Joint Exceptions to the Hearing Officer`s Recommended Order filed. |
| Feb. 10, 1994 | Petitioners` Joint Exceptions to the Hearing Officer`s Recommended Order filed. |
| Jan. 25, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held April 29, 1993. |
| Jan. 20, 1994 | Copy of Letter to James R. Brewster from Susan L. Turner filed. |
| Jan. 18, 1994 | Copy of Letter to Ms. Susan Turner from James R. Brewster filed. |
| Jan. 14, 1994 | Appellant`s response to Appellee Hillcrest`s motion to supplement the Record filed. |
| Jan. 10, 1994 | Appellee Hillcrest`s Supplemental Response tom Appellant`s Motion to Strike filed. |
| Jan. 10, 1994 | Appellee Hillcrest`s Motion to Supplement the Record filed. |
| Dec. 30, 1993 | Hillcrest`s Notice of Withdrawal of Motion to Supplement the Record filed. |
| Dec. 22, 1993 | Appellee Hillcrest`s response to Appellant`s motion to strike filed. |
| Dec. 21, 1993 | Letter to Ms. Susan Turner from James R. Brewster filed. |
| Dec. 20, 1993 | Reply Brief of Appellant filed. |
| Dec. 08, 1993 | Hillcrest`s Notice of Furnishing Copy of Deposition to Supplement the Record filed. |
| Nov. 29, 1993 | Answer brief of appellee Gerald Lewis on appeal from a Final Order dismissing action entered in the Second Judicial Circuit in and for Leon County filed. |
| Nov. 24, 1993 | Hillcrest`s motion to supplement the record filed. |
| Nov. 01, 1993 | Initial Brief of Appellant filed. |
| Oct. 19, 1993 | Appellant`s motion for extension of time to file initial brief filed. |
| Sep. 30, 1993 | Petitioner`s Notice of Response to Respondent`s Interrogatories and Request for Production w/Answers to Respondent`s Interrogatories w/cover ltr filed. |
| Sep. 16, 1993 | Amended composite statement of July 7,1993 proceedings in lieu of transcript filed. |
| Sep. 14, 1993 | Hillcrest`s objections and amendments to composite statement in lieu of transcript of July 7, 1993 hearing filed. |
| Sep. 10, 1993 | Settlement and approval order of composite statement in lieu of a transcript filed. |
| Sep. 10, 1993 | Copy of Letter from James Brewster to Judge Steinmeyer(re: Brown, Edwards, Toale v. Gerald Lewis) filed. |
| Sep. 02, 1993 | Notice of filing of Defendants`/Appellees` response to Plaintiff`s/Appellant`s statement of July 7, 1993 Proceedings filed. |
| Aug. 23, 1993 | Directions to clerk filed. |
| Aug. 20, 1993 | Amended Notice of Appeal filed. |
| Aug. 06, 1993 | Final Order and Cover Ltr filed. (From 2nd DCA) |
| Jun. 30, 1993 | (Respondent) Proposed Findings of Fact and Conclusions of Law filed. |
| Jun. 30, 1993 | Petitioners` (Toale and Bet) Proposed Recommended Order; Memorandum of Law in Support of Gilbraltar Mausoleum Corp.`s Findings of Fact and Conclusions of Law; Proposed Recommended Order of Respondent Gibraltar Mausoleum Corporation filed. |
| Jun. 30, 1993 | (Petitioners) Proposed Recommended Order filed. |
| Jun. 30, 1993 | Petitioners` Post-Hearing Motion to Correct and Supplement the Record; Petitioners` (Toale and BET) Proposed Findings of Fact(s); Post-Hearing Motion for Official Recognition filed. |
| Jun. 11, 1993 | Ltr. to WRC from R. Ulin, Sarasota Herald Tribune requesting copy of Order when issued filed. |
| Jun. 09, 1993 | Order Granting Extension of Time for Filing Proposed Recommended Order sent out. |
| Jun. 07, 1993 | Motion for Extension of Time for Filing Proposed Recommended Order (w/proposed Order) filed. |
| Jun. 04, 1993 | Transcript w/cover ltr (Vols 1&2) filed. |
| May 17, 1993 | Notice of furnishing copy of supplemental/amended and restated complaint for declaratory and other equitable relief upon the department of insurance filed. |
| May 10, 1993 | Post Hearing Order sent out. |
| Apr. 29, 1993 | Final Hearing Held 04/29-30/93; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file. |
| Apr. 28, 1993 | CC Letter to James S. Brewster from J. R. Williford (re: request to be excused from the subpoena requesting presence on April 29, 1993) filed. |
| Apr. 27, 1993 | Subpoena Duces Tecum w/Affidavit of Service filed. (From Suzanne Hicks) |
| Apr. 27, 1993 | Summons and Motion to file supplemental/amended and restated complaint for declaratory and other equitable relief filed. |
| Apr. 26, 1993 | (Respondent) Motion for Official Recognition filed. |
| Apr. 23, 1993 | Notice of filing support for motion for prohibition against Hearing Officer filed. |
| Apr. 22, 1993 | Summons served(Complaint for declaratory and other equitable relief, composite exhibit"A", and Motion for prohibition against Hearing Officer w/supporting attachments and exhibits A and B) filed. |
| Apr. 20, 1993 | Motion for Prohibition against Hearing Officer w/exhibits attached filed. |
| Apr. 19, 1993 | Petitioners` Pretrial Statement (filed in Case # 92-6884) filed. |
| Apr. 19, 1993 | Petitioners` Pretrial Statement filed. |
| Apr. 19, 1993 | Notice of Taking Deposition filed. From Harry R. Detwiler) |
| Apr. 09, 1993 | Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 9:00am on April 29, 1993 and continue through April 30, 1993 beginning at 9:00am; Sarasota) |
| Apr. 07, 1993 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 07, 1993 | (Respondent) Response to Prehearing Order filed. |
| Apr. 07, 1993 | Gibraltar`s Compliance with Prehearing Order filed. |
| Apr. 07, 1993 | Order Granting Motion for Substitution of Counsel sent out. (motion granted) |
| Apr. 07, 1993 | (Petitioner) Notice of Hearing filed. |
| Apr. 06, 1993 | (Petitioner) Motion for Stay/Continuance of Proceedings filed. |
| Apr. 06, 1993 | (Petitioner) Notice of Appearance (filed in Case # 92-6884) filed. |
| Apr. 06, 1993 | (Petitioners) Notice of Taking Deposition; Motion for Substitution of Counsel (filed in Case # 92-6886) filed. |
| Apr. 05, 1993 | (Gibraltar) Notice of Taking Deposition filed. |
| Apr. 05, 1993 | (Petitioners) Motion for Substitution of Counsel w/cover ltr & (unsigned) Order Approving Substitution of Counsel (filed in Case #92-6886); Notice of Appearance (filed in Case #92-6884); filed. |
| Mar. 31, 1993 | Prehearing Order sent out. |
| Mar. 30, 1993 | Motion for Prehearing Order; Notice of Taking Deposition w/(unsigned) Order filed. (From Harry R. Detwiler, Jr.) |
| Feb. 17, 1993 | Petitioners` Answers to First Interrogatories From Department filed. |
| Feb. 16, 1993 | Order Denying Withdrawal and Substitution sent out. |
| Feb. 11, 1993 | Withdrawal and Substitution (Appearance) of Counsel for Petitioners; Notice of Appearance filed. |
| Feb. 05, 1993 | Order of Abeyance and Status Report sent out. (Petitioner`s motion denied without prejudice to file an amended motion that complies with all aspects of rule 60Q-2.019, FL Administrative Code) |
| Feb. 04, 1993 | Amended Notice of Taking Deposition filed. (From James R. Brewster) |
| Feb. 04, 1993 | Notice of Taking Deposition filed. (From James R. Brewster) |
| Jan. 26, 1993 | Venice Memorial Gardens Inc.`s Supplement to First Interrogatories From Gibraltar filed. |
| Jan. 25, 1993 | Petitioner`s Motion to Compel Answers to Its First Interrogatories to the Department and Notice of Filing the Department`s Answers to Same filed. |
| Jan. 22, 1993 | Petitioner`s Motion to Compel Answers to Its First Interrogatories to the Department and Notice of Filing the Department`s Answers to Same (for 92-6885) filed. |
| Jan. 22, 1993 | Order sent out. (Petitioner`s motion is denied without prejudice) |
| Jan. 20, 1993 | Petitioner`s Supplement to First Interrogatories From Gibraltar; Verification of Answers to Gibraltar`s First Set of Interrogatories (3) filed. |
| Jan. 11, 1993 | Gibraltar Mausoleum Corporation`s Response to Petitioner David V.Toale`s First Set of Interrogatories filed. |
| Jan. 07, 1993 | Gibraltar Mausoleum Corporation`s Response to Petitioner David V. Toale`s First Request for Production of Documents filed. |
| Jan. 04, 1993 | Petitioners` Responses to First Request for Production From Gibraltar; Petitioners` Answers to First Interrogatories From Gibraltar filed. |
| Dec. 21, 1992 | Notice of Hearing sent out. (hearing set for 4/13/93; 1:00pm; & 4/14-15/93; 9:00 am; Sarasota) |
| Dec. 15, 1992 | Order Denying Motion for Stay/Continuance of Proceeding sent out. (motion for stay/continuance of proceedings denied) |
| Dec. 15, 1992 | Order sent out. (balance of motion to strike denied) |
| Dec. 15, 1992 | Notice of Hearing sent out. (hearing set for April 14-15, 1993; 1:00pm; Sarasota) |
| Dec. 15, 1992 | Order Denying Motion for Protective Order sent out. (motion for protective order is denied) |
| Dec. 15, 1992 | Order sent out. (motion to intervene granted) |
| Dec. 15, 1992 | Order Denying Motion To Strike and Correct Caption sent out. (motion to strike and correct caption denied) |
| Dec. 15, 1992 | Order Denying Summary Judgement sent out. (motion for summary judgement denied) |
| Dec. 08, 1992 | (Dept of Banking & Finance) Response to Motion for Summary Judgment filed. |
| Dec. 08, 1992 | Petitioner`s Notice of Propounding Its First Interrogatories to the Department of Banking and Finance; Petitioner`s Notice of Propounding Its First Interrogatories to Gibraltar filed. |
| Dec. 08, 1992 | (Respondent) Response to Motion for Stay/Continuance of Proceedings filed. |
| Dec. 04, 1992 | Petitioner`s First Request for Production of Documents From Intervenor, Gibraltar Mausoleum Corporation; Motion to Strike and Correct Caption; Petitioner`s First Request for Production of Documents From Respondent, Department of Banking and Finance rec` |
| Dec. 04, 1992 | Petitioner`s Notice of Propounding Its First Interrogatories to Respondent filed. |
| Dec. 04, 1992 | Amended Order of Consolidation sent out. (consolidated for hearing sua sponte) |
| Dec. 03, 1992 | 92-6885 Order of Consolidation sent out. (Consolidated cases are: 92-6635, 92-6884, 92-6885, 92-6886) |
| Dec. 03, 1992 | Order Correcting Style of Case sent out. |
| Dec. 03, 1992 | (Petitioner) Motion for Summary Judgment filed. |
| Dec. 02, 1992 | (Petitioner) Motion to Stay/Continuance of Proceedings; Motion for Protective Order; Petitioner`s Noticed of Propounding Its First Interrogatories to Defendant; David V. Toale`s First Set of Admissions to the Department of Banking and Finance filed. |
| Nov. 30, 1992 | Gibraltar Mausoleum Corporation`s First Set of Interrogatories to David V. Toale; Interrogatories (unanswered) filed. |
| Nov. 30, 1992 | Gibraltar Mausoleum Corporation`s First Request for Production to David V. Toale filed. |
| Nov. 24, 1992 | Joint Response to Initial Order filed. |
| Nov. 17, 1992 | Petition for Formal Proceeding w/Exhibit-A filed. |
| Nov. 10, 1992 | Initial Order issued. |
| Nov. 09, 1992 | (Movant) Motion to Intervene filed. |
| Nov. 04, 1992 | Agency referral letter; Agency Action letter; Petition for Formal Proceeding filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 11, 1994 | Agency Final Order | |
| Jan. 25, 1994 | Recommended Order | Resp. DBE interpretation of sec 497.007 F.S. was a permissible interpre- tation and respondent Gibraltar met burden for entitlement to licensure. |
