STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARDEN OF MEMORIES, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1009

) STATE OF FLORIDA, OFFICE OF ) COMPTROLLER, DEPARTMENT OF ) BANKING AND FINANCE, )

)

Respondent. )

and )

) FOREST LAWN MEMORIAL GARDENS ) and EVERGREEN MEMORIAL )

GARDENS, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, a public hearing in the above-styled case on 30 June 1981, at Panama City, Florida.

APPEARANCES

For Petitioner: William E. Harris, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

For Respondent: Albert T. Gimbel, Esquire

Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

For Intervenors: David E. Graham, Esquire

5100 North Federal Highway

Fort Lauderdale, Florida 33308

By letter dated March 27, 1981, Forest Lawn Memorial Gardens and Evergreen Memorial Gardens, Intervenors, by and through their attorney, protested the proposed issuance of the license to Garden of Memories, Ltd., Petitioner, to open a perpetual care cemetery in Bay County, Florida; and requested a formal hearing. As grounds therefor, Intervenors contend that a need does not exist for another perpetual care cemetery in Bay County, Florida.

At the hearing Petitioner called nine witnesses, including three funeral directors, one mayor, one city manager, the Chairman of the Bay County Planning Commission and one minister; and two exhibits were admitted into evidence.

Intervenors stipulated that Forest Lawn Memorial Gardens and Evergreen Memorial Gardens are owned by the same company, are operated as one cemetery and are not in competition with each other. Intervenors submitted no evidence.

FINDINGS OF FACT

1. By application not presented at this hearing, Garden of Memories, Ltd., Petitioner, seeks a license to establish a perpetual care cemetery in Springfield, Florida, a community with a population of approximately 7,500 located just east of Panama City, Florida.

   
   

2. Intervenors are owned by Cem-A-Care of Panama City, Florida, are operated as one cemetery with one manager, and services are offered at the same price at both cemeteries (Exhibit 2.) These are the only private, perpetual care cemeteries in Bay County.

   
   

3. Several cities in Bay County have cemeteries but in almost all of these cemeteries no spaces are available for sale. In others, the lots available are restricted to the residents of the community where the lot is located, while one city charges non-resident 150% of the fee for lots charged to residents. In the city-owned cemeteries east of Panama City, no additional lots are available.

   
   

4. The population of Bay County is growing and, although specific demographic projections were not submitted, the county planners estimate a 100% increase in residential acreage in unincorporated areas by 1990, with most of this growth to the east of Panama City.

   
   

5. The evidence of need for an additional private cemetery in the proposed location, which was attested to be at least six witnesses, was unrebutted. Likewise, the testimony that the introduction of another perpetual care cemetery in Bay County will create needed competition, and thereby improve service, was not rebutted.

   
   

6. People generally prefer to bury their loved ones reasonably close to their homes. For those residents in the eastern part of Bay County, there is no cemetery available to allow this preference. Opening the proposed cemetery will alleviate this problem.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

   Section 559.33(3), Florida Statutes, provides:

   The department shall determine the need for a new cemetery in the community by considering the adequacy of existing facilities; the solvency of the trust funds of the existing facilities; and

   the relationship between population, rate of population growth, death rate, and ratio of burials to death. In order to promote competition, the department may

   waive the criteria of this subsection so that each county may have at least two cemeteries operated by different licensees.

   
   

8. From the evidence presented it is clear that existing facilities are not adequate for the residents of Bay County and particularly for those living in the eastern part of Bay County. This is true despite the number of plots Intervenors may have available for sale.

   
   

9. No evidence was presented regarding the solvency of the trust fund of the existing facilities or regarding the relationship between population, rate of population, death rate and ratio of burials to deaths. The evidence was clear, and was in fact, stipulated to by Intervenors, that they are operated as one cemetery and no competition exists between them. Under these circumstances, the criteria relative to a determination of need may be waived in the interest of fostering competition between cemeteries by licensing a competitive cemetery.

   
   

10. From the foregoing, it is concluded that a need exists for the cemetery proposed by Garden of Memories, Inc., in Springfield, Florida, and that this cemetery will promote competition for cemetery lots and service which does not now exist. It is, therefore

RECOMMENDED that the application of Garden of Memories, Inc. to operate a cemetery in Springfield, Florida, be APPROVED.

ENTERED this 17th day of July, 1981, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1981.

COPIES FURNISHED:

William E. Harris, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

Albert T. Gimbel, Esquire Assistant General Counsel Office of Comptroller

The Capitol - Suite 1302 Tallahassee, Florida 32301

David E. Graham, Esquire 5100 North Federal Highway

Fort Lauderdale, Florida 33308

Docket for Case No: 81-001009

Orders for Case No: 81-001009