STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MEMORY PARK, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 85-0643
) SERENITY GARDENS OF SANTA ) ROSA, INC., AND DEPARTMENT ) OF BANKING AND FINANCE, )
)
Respondents. )
)
RECOMMENDED ORDER
This Recommended Order addresses case numbers 85-0642 and 85-0643. A hearing was conducted on these cases pursuant to notice on August 28 and 29, 1985 in Pensacola, Florida by Stephen F. Dean assigned Hearing Officer of the Division of Administrative Hearings. These cases arose from the applications of Master Plan and Memory Gardens to operate cemeteries in Milton, Santa Rosa County, Florida. These applications were opposed by Serenity Gardens in both cases.
The Department forwarded the cases to Division of Administrative Hearings for a determination of the facts prior to agency action, although the Department took the position that, based upon its investigation, there was no need for additional cemetery space in Santa Rosa County and demanded proof of the applicant's qualifications. Procedurally this was treated as a free form proceeding. The burden was placed upon the applicants to prove their basic qualifications and to assert the need for cemetery space. Thereafter, the Department and protestants were afforded the opportunity to present evidence on any qualification or condition which they asserted had not been met or did not exist.
At hearing the Master Plan, Inc. in case #85-0642 withdrew its application, and case #85-0642 was closed. The style of case #85-0643 altered to reflect the status of Serenity Gardens as Petitioner-Applicant and the party with the burden of proof.
APPEARANCES
For Petitioner: W. Douglas Moody, Jr.
119 North Monroe Street Tallahassee, Florida 32301
For Respondent Alan H. Rosenbloum Serenity 417 Canterbury Lane Gardens, Inc.: Gulf Breeze, Florida 32561
Dept of Banking Paul C. Stadler
and Finance, Office The Capitol, Suite 1302
of the Comptroller: Tallahassee, Florida 32301
ISSUES
The parties would not stipulate to any of the facts.
The following factual issues were presented in this case:
Whether the Petitioner possesses the requisite ability, experience, and financial stability to operate a cemetery?
Whether the Petitioner meets the statutory criteria to be licensed?
Whether the Petitioner's application is substantially complete?
Whether existing facilities meet the requisite adequacy standard?
Whether the trust funds of existing facilities are solvent?
Whether the statistical data supports issuance of an additional license (need), and
Notwithstanding a lack of need, should the agency issue any additional licenses to foster needed competition?
The following legal issues were raised during the hearing:
Are the terms of Chapter 85-202, Laws of Florida, applicable to this application?
May the Department waive the need criteria of Section 497.006(3), Florida Statutes and issue licenses to promote competition?
Should cemetery spaces which are not subject to the act pursuant to Section 497.003(1), Florida Statutes be considered in computing need?
Should acreage which is owned by a cemetery company but undedicated to cemetery use be included in computation of need?
Legal conclusions on these issues are summarized at the beginning of this Order because they impact consideration of the facts. It is concluded that Chapter 85-202, Laws of Florida, should be applied to the application as the law in effect at the time of hearing and at the time the agency's decision is made.
It is also concluded that Section 497.003, Florida Statutes, excepts from the application of Chapter 497 and all rules adopted pursuant to Chapter 497 certain cemeteries and it is inconsistent, therefore, to include spaces in these excepted cemeteries in computing need. In circumstances in which no need exists, the department may approve an application upon proof that an additional cemetery or cemeteries are needed to promote competition pursuant to Section 497.006(3) Florida Statutes.
Acreage owned but not dedicated to cemetery purposes should not be computed in need statistics because it is not subject to agency control until its dedication.
The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to the Recommended Order.
FINDINGS OF FACT_
The applicant for licensure to operate a cemetery is Memory Park, Inc., a Florida corporation. The operating officers of the corporation are Bill Williams, Annette Williams, his wife, and Bert Brown. (Petitioner's Exhibit 3) All three have very significant business experience and have operated state licensed businesses without any complaint. (Petitioner's Exhibit 5, 6 & 7) The applicant's principals have indicated that, as required by law, they would hire an experienced cemetery manager for the period required.
The applicant possesses sufficient operating capital assets to insure its financial stability. See Petitioner's Exhibit 3 and 4.)
The Petitioner's application was substantially complete: setting forth the proposed cemetery's exact location, paying all fees required, and demonstrating that the applicant is a legal entity. (See documents filed with the application and staff study.)
No evidence was received that any existing licensed cemeteries failed to meet adequacy standards. Only one other licensed cemetery, Serenity Gardens, exists in the service area which is a 15 mile circle drawn around the proposed site. This licensed cemetery meets the existing statutory requirements.
Projections of population, deaths and burials in the service-area were introduced and received as Hearing Officer Exhibit 1, which also includes a map of the service area and a listing of all cemeteries in the service area. (The accompanying data on acreage and spaces of unlicensed cemeteries was not admitted.) Hearing officer Exhibit 1 shows that there will be 16,182 deaths in the area, and 13,095 burials in the area after cremations and "ship outs" through 2012. Need is computed on a
30 year projection.
The existing licensed facility has 18 acres dedicated to cemetery purposes and 15 adjoining acres which are not dedicated. The dedicated acreage has 15,972 unused spaces which includes spaces sold but with no one yet buried in them. The undedicated acreage has 14,954 unused spaces as currently planned. (Hearing Officer Exhibit 1) However, the company could dispose of this undedicated property and use it for purposes without any interference, regulation or control by the agency.
There would be a total of 13,095 burials in the 30 years between 1983 and 2012. This is less than the available sites currently in the dedicated acreage at the one licensed cemetery (15,972). There is no need. (Hearing Officer Exhibit 1)
Serenity Gardens has cleaned it fences, planned to provide additional services, employed new personnel, and has begun actively advertising since the applicant started the application process. Serenity Gardens had not done so in the past.
CONCLUSIONS OF LAW
The Department of Banking and Finance, Office of the Comptroller is charged under Chapter 497, Florida Statutes with regulation and licensure of cemeteries. The Department forwarded this case to Division of Administrative Hearings to conduct a formal hearing on the Petitioner's application prior to formal rejection of the application. This resulted in a free form formal hearing in which the Petitioner was required to initially prove up all of its qualifications. The agency was required to present evidence on all areas which it controverted. The protestant, Serenity Gardens, was also afforded the opportunity to present evidence and cross examine Petitioner's evidence. Petitioner was then permitted to rebut the evidence presented by the Department and Serenity Gardens.
Chapter 85-202, Laws of Florida, amended Chapter 497,Florida Statutes, this year. It became law on June 18, 1985. As the law applicable at the time of hearing, this amendment must be considered and applied. The criteria for licensure to operate a cemetery are set forth in Section 497.006(2), Florida Statutes, as amended by Chapter 85-202, Laws of Florida, which states as follows:
497.006 Cemetery companies; license; application; fee.--
Any person desiring to establish a cemetery company shall first:
File an application, which shall state the exact location of the proposed cemetery, which site shall contain not less than 15 continuous acres, and pay an application fee of $5,000.
Create a legal entity; and
Demonstrate to the satisfaction of the department that he possesses the ability, experience, financial stability, and integrity to operate a cemetery.
The facts show that the applicant is a legal entity, the application was properly filed with the exact location identified and all fees paid. The qualifications of the business members are excellent. All three have been or are currently engaged in state licensed businesses. They have been so engaged for many years. No evidence was presented of any
negative incidents. All their references are excellent. The Petitioner demonstrated that its principals understand the statutes, their obligations, and their willingness to do all things necessary to start, operate and sustain a cemetery. The requirements of Section 497-006(2)(a)(b) & (c), Florida statutes, were met by the Petitioner.
The only remaining issues arise from Section 497.006(3), Florida Statutes, as amended by Chapter 85-202, Laws of Florida, which provide as follows:
The department shall determine the need for a new cemetery in the community by considering the adequacy of existing facilities; and the relationship between population, rate of population growth, death rate, and ratio of burials to deaths. In order to promote competition, the department may waive the criteria of this subsection so that each county may have at least six cemeteries operated by different licensees.
This paragraph of Section 497.006 sets forth two separate conditions. The first condition relates to need and the latter condition relates to competition. It cannot be said that because of the latter provision regarding competition, the former provisions addressing need can be ignored.
The agency must assess need with regard to each application. The agency currently considers spaces available in cemeteries otherwise exempt pursuant to Section 497.003, Florida Statutes. Section 497.003, Florida Statutes, states that the "chapter and all rules adopted pursuant to this chapter shall apply to all cemeteries except" certain church, municipal, county, community, fraternal cemeteries and all cemeteries owned and operated before June 23, 1976. Put simply, Section 497.006(3), Florida Statutes, or any rule adopted pursuant to it cannot apply to excepted cemeteries. For this reason evidence proffered on spaces available to unlicensed church cemeteries, old Negro cemeteries, community cemeteries, cemeteries owned and operated before 1976, etc., was not considered in assessing need. Only spaces in cemeteries subject to the provisions of Chapter 497, Florida Statutes, were considered in considering need.
The department also considers in determining need acreage owned by a cemetery company but not dedicated to
cemetery use in computing need. The evidence indicated that such acreage could eventually be used for non-cemetery purposes and was not subject to agency regulation or control until it was dedicated to cemetery use. Therefore, it is concluded that it is improper to include undedicated acreage in the need computation.
When limited to dedicated, licensed cemetery spaces, there are 15,972 spaces available. Even so, with projected burials of 13,095, there is no need for the next 30 years. The agency looks at need as 30 year projection. There is no need.
Section 497.006(3), Florida Statutes, also addresses the element of competition. The department cannot issue licenses when need does not exist solely in its discretion and without some criteria. This would be an exercise of unbridled discretion beyond the power of the legislature to delegate, much less an invalid exercise of delegated legislative authority. Consequently, if there is no demonstrated need, an applicant may present evidence on the benefits of additional competition.
Such evidence must form the basis of findings that (1) insufficient competition exists, and (2) that the proposed cemetery will foster and encourage competition. If lack of competition is demonstrated by the applicant, the department should issue a license.
The evidence shows that after Serenity Gardens learned of this application, it began to provide or plan to provide expanded services, to clean its facilities and take extra care of its grounds, and advertise its services. The proposed facility will have facilities for cremains and vaults, as well as traditional grave sites. The proposed facility has already promoted healthy competition beneficial to the public.
Having found the applicants qualified and that the proposed facility has already fostered, promoted and encouraged competition, it is recommended the license be issued although there is no need for the service area.
DONE AND ORDERED this 17th day of October, 1985 in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, FL 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1985.
APPENDIX A
Only one set of "Proposed Findings" was submitted. These unpaginated, unnumbered proposals submitted by Petitioner were read and considered. In the entire eight pages there is only one finding of fact. In the first paragraph of the portion addressing Competition, the proposal states, "Serenity Gardens is the only licensed perpetual care facility in the community where the Petitioner has proposed its cemetery." This was addressed in paragraph 4 of the Recommended Order's Findings.
The remaining verbage in the proposal is argument and, therefore, is rejected.
COPIES FURNISHED:
W. Douglas Moody, Jr.
119 N. Monroe Street Tallahassee, FL 32301 Alan H. Rosenbloum
417 Canterbury Lane Gulf Breeze, FL 32561
Paul C. Stadler The Capitol Suite 1302
Tallahassee, FL 32301
The Honorable Gerald Lewis
Comptroller, State of Florida The Capitol
Tallahassee, FL 32301
Charles Stutts General Counsel Plaza Level
The Capitol Tallahassee, FL 32301
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF FINANCE
IN RE:
MEMORY PARK, INC., Administrative Proceeding Number: 85-DOF
Petitioner. (DOAH No. 85-0643)
/
FINAL ORDER GRANTING THE APPLICATION FOR A CEMETERY LICENSE AND NOTICE OF RIGHTS
The State of Florida Department of Banking and Finance, Division of Finance (hereinafter Department), being authorized and directed to administer the provisions of the Florida Cemetery Act, Chapter 497, Florida Statutes, hereby enters this Final Order Granting the Application of Memory Park, Inc. (hereinafter Petitioner) for a license to operate a cemetery in Santa Rosa County, Florida, as hereinafter provided.
FINDINGS OF FACT
Under the provisions of Chapter 497, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty to issue licenses, as set forth in Section 497.006, Florida Statutes.
On January 2, 1985, Petitioner, a Florida corporation, submitted an Application to Organize a New Cemetery Company (hereinafter First Application) to operate a cemetery in Santa Rosa County, Florida, and paid a $600 application fee. Thereafter, on January 11, 1985, the Department caused to be published a Notice of Cemetery Application with regard to Petitioner in the Florida Administrative Weekly, Vol. 11, No. 2. Said Notice indicated that any interested person could request a
hearing within a stated time period. On January 24, 1985, the Department received a petition for hearing from a licensed cemetery, Serenity Gardens of Santa Rosa, Inc. (hereinafter Protestant), which objected to granting Petitioner's First Application for a cemetery license and requested a public hearing be held. The Department granted Protestant's request for a hearing and on February 25, 1985, the Department forwarded said petition to the Division of Administrative Hearings and requested that a Hearing Officer be appointed to hear this matter on behalf of the Department. On March 4, 1985, Hearing Officer Stephen F. Dean was assigned to hear this cause.
Thereafter, Petitioner submitted a second Application for Authority to Organize a New Cemetery Company (hereinafter Second Application) on August 23, 1985, which was substantially complete on that date. However, no additional application fees have been paid. An administrative hearing based upon the Second Application was held on August 28-29, 1985, in Pensacola, Florida, and on October 17, lS85, the Hearing Officer entered his Recommended Order to which no exceptions have been filed.
In the Recommended Order, the Hearing Officer entered a specific finding of fact that the operating officers of Petitioner are Arnette Williams, Bill Williams and Bert Brown; that all three have very significant business experience and have operated other state licensed businesses without any complaint; and that Petitioner's principals have indicated that they would hire an experienced cemetery manager. The Department accepts this finding of fact.
In the Recommended Order, the Hearing Officer entered a specific finding of fact that Petitioner possesses sufficient operating capital assets to insure its financial stability. The Department accepts this finding of fact.
In Findings of Fact number three, the Hearing Officer concluded that the Petitioner had paid "all fees required." The Department respectfully takes exception to this factual finding because, subsequent to the filing of the First Application and prior to the filing of the Second Application, Chapter 85-202, Laws of Florida, came into effect and amended Section 494.006(2), Florida Statutes, to increase the application fee from $600 to $5,000. However, as noted in paragraph 2 herein, only a S600 application fee has been paid to date. The Hearing Officer further found that the criteria of the new law was to be applied to the application.
The proposed cemetery site contains approximately 30 contiguous acres.
The Hearing Officer in his Recommended Order entered a specific finding to the effect that Protestant is the only other licensed cemetery that exists in the service area which is a 15 mile circle drawn around the proposed site. The Department accepts this finding and also finds that the trust funds of that cemetery are solvent.
Projections of population, deaths and burials in the service area together with a map of the service area and a listing of all cemeteries in the service area were introduced and received at the hearing. (The accompanying data on acreage and spaces of unlicensed cemeteries was not admitted into evidence by the Hearing Officer.)
In paragraph 5, the Hearing Officer further concluded, "Hearing Officer Exhibit 1 shows that there will be 16,182 deaths in the area, and 13,095 burials in the area after cremations and 'ship outs' through [the year] 2012. Need is computed on a 30 year projection." The Department respectfully notes that the projected deaths and burials referred to by the Hearing Officer are those of Santa Rosa County. Hearing Officer Exhibit 1 shows that there are 9,039 projected deaths in the service area and 7,314 projected burials through 2012.
The Hearing Officer in paragraph 6 of the Findings of Fact concluded:
The existing licensed facility has 18 acres dedicated to cemetery purposes and 15 adjoining acres which are not dedicated.
The dedicated acreage has 15,972 unused spaces which includes spaces sold but with no one yet buried in them.
The undedicated acreage has 14,954 unused spaces as currently planned. (Hearing Officer Exhibit 1). However, the company could dispose of the] undedicated property and use it for purposes without any interference, regulation or control by the agency.
A review of the evidence shows that the Annual Report of Cemetery of Protestant represents that said cemetery has 33
total acres with only 18 acres noted as being dedicated. Accordingly, there is a basis for the Hearing Officer's finding. However, the plat of Protestant with regard to the remaining 15 acres has dedicated such 15 acres for cemetery use and the plat thereof has been approved by and filed with the local county officials. This being the case, as discussed in paragraph 17b, it is a matter of state law whether Protestant has effectuated a proper dedication. However, the Department does agree with the Hearing Officer's statement as to the number of unused space in the respective portions of Protestant.
The total projected burials in the service area is less than the unused spaces in the 18 acre area of Protestant and is less than the unused spaces in the total acreage of Protestant. Accordingly, there is no need for a cemetery in the service area.
Petitioner has already had a positive impact on competition in the service area, because the Hearing Officer in his Recommended Order entered a specific finding to the effect that Protestant has cleaned its fences, planned to provide additional services, employed new personnel and has begun actively advertising since the application process was started. Protestant had not done so in the past. The Department accepts this finding.
CONCLUSIONS OF LAW
Chapter 85-202, Laws of Florida amending Chapter 497, Florida Statutes, became effective on June 18, 1985, subsequent to the filing of the First Application and prior to the filing of the Second Application. In particular, Section 497.006(2), Florida Statutes, was amended to, among other matters, increase the application fee from $600 to $5,000 and altered the criteria used by the Department in approving or denying license applications.
Based on the foregoing Findings of Fact, particularly the findings that Petitioner filed the Second Application subsequent to the effective date of Chapter 85-202, Laws of Florida, the Department agrees with the conclusion of the Hearing Officer that said amendments apply to the Second Application.
Section 497.006(2), Florida Statutes, as amended, provides that any person desiring to establish a cemetery company shall first file an application stating the exact location of the proposed cemetery, which site shall contain not less than 15 contiguous acres, pay an application fee of $5,000, create a legal entity and demonstrate that he possesses the ability, experience, financial stability and integrity to operate a cemetery.
Based upon the foregoing Findings of Fact, the Department concludes that Petitioner has filed an application stating the exact location of the proposed cemetery, which contains not less than 15 contiguous acres, has paid an application fee of $600, has created a legal entity and has demonstrated that the proponents possess the ability, experience, financial stability and integrity to operate a cemetery.
Section 497.006(3), Florida Statutes, as amended, provides that 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 the population, the rate of population growth, the death rate and the ratio of burials to deaths. However, in order to promote competition, the Department may waive said criteria so that each county may have six licensed cemeteries operated by different entities. The evidence must demonstrate that insufficient competition exists and/or that the proposed cemetery will foster
and encourage competition. a. On the issue of whether unlicensed cemeteries are properly to be considered in determining whether there is a need for a new cemetery, the Hearing Officer concluded on pages 6 and 7:
The agency must assess need with regard to each application.
The agency currently considered spaces available in cemeteries otherwise exempt pursuant to Section 497.003, Florida Statutes. Section 497.003, Florida Statutes, states that the "chapter and all rules adopted pursuant to this chapter shall apply to all cemeteries except" certain church, municipal, county, community, fraternal cemeteries and all cemeteries owned and operated before June 23, 1976. Put simply, Section 497. 006(3), Florida Statutes, or any rule adopted pursuant to it cannot apply to excepted cemeteries. For this reason evidence proffered on spaces available to unlicensed church cemeteries, cemeteries owned and operated before 1976, etc., was not considered in assessing need. Only spaces in cemeteries subject to the provisions of Chapter 497, Florida Statutes, were considered in considering need. The Department respectfully disagrees with the Hearing Officer. It is settled "that '[legislative] intent is determined primarily from the language of the statute [and] the plain meaning of the statutory language is the first consideration.'" All Seasons Resorts, Inc. v. Department of Business Regulation, 455 So. 2d 544, 548 (Fla. 1st DCA 1984) (quoting St. Petersburg Bank and Trust v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982)). Section 494.006, Florida Statutes, states that "existing facilities" should be considered in making the need determination. If the Legislature had intended that only licensed facilities be taken into account in determining need, it could have so stated; however, it did not do so.
Accordingly, the plain reading of Section 494.006, Florida Statutes, mandates that all "existing facilities," whether licensed or unlicensed, be considered in determining need. Section 497.003, Florida Statutes, does not compel a different result. The sole purpose of that Section is to specify which cemeteries will be regulated by Chapter 497. Section 497.003, Florida Statutes (emphasis added), provides in part that Chapter
497 "and all rules adopted pursuant to this chapter shall apply to all cemeteries except for" certain enumerated cemeteries. To read Section 497.003, Florida Statutes, as eliminating unlicensed facilities from the consideration of need is to give it too broad an interpretation, because considering the spaces available in unlicensed cemeteries in making the need determination in no way applies Chapter 497 to those cemeteries. Their conduct is still unregulated. Put another way, if unlicensed cemeteries were properly to be considered in the need
determination, it would not necessarily follow that Chapter 497 would apply to regulate their conduct. Additionally, "[a]lthough it is well settled that the courts are not concerned with the wisdom of an enactment, they will avoid an interpretation of a statute that would produce unreasonable, absurd, or ridiculous consequences, provided the language is susceptible of an alternative interpretation." 49 S. von Haesler, Statutes, Fla.
Jur. §183 (2d ed. 1984) (footnotes omitted). It appears that failing to consider the amount of spaces available in unlicensed cemeteries could lead to unintended results. For example, if it were to be assumed that a community of 500 persons had an unlicensed municipal cemetery with 10,000 spaces available, it would not seem reasonable that said cemetery should not be considered in the need determination. In fact, it is difficult to conceive of a policy reason for not taking into account those available cemetery spaces. Based on the foregoing, the plain meaning of the statute and reason supports the view that unlicensed cemeteries should be one of several factors considered in making the need determination. This is the interpretation placed on the statute by the Department, see Fla. Admin. Code 3D-30.15(4)(b)(2), and such an interpretation is not clearly erroneous See All Seasons Resorts, Inc., 455 So. 2d at
547. Although the Department concludes that the Hearing Officer should have included the unlicensed cemeteries in his consideration in determining need, his failure to do so is harmless, see Peoples Bank of Indian River County v. Department of Banking and Finance, 395 So. 2d 521, 524 (Fla. 1981), because the Findings of Fact reveal that Petitioner failed to demonstrate need even with the elimination of those facilities.
b. On the issue of whether part of Serenity Gardens' acreage was not "dedicated" and, therefore, properly not considered, the Hearing Officer concluded on page 7:
The department also considers in determining need acreage owned by a cemetery company but not dedicated to cemetery use in computing need. The evidence indicated that such acreage could eventually be used for non- cemetery purposes and was not subject to agency regulation or control until it was dedicated to cemetery use. Therefore, it is concluded that it is improper to include undedicated acreage in the need computation.
The Department respectfully takes issue with this statement.
Section 497.006(3), Florida Statutes, states that, in
determining need, the Department shall consider the adequacy of existing facilities. As this subsection does not differentiate between lands "dedicated" and not "dedicated," the Legislature appears to have intended that the entire cemetery be considered in arriving at the number of available spaces. However, once these lands are no longer owned, used or set aside for cemetery purposes by the cemetery company, it would no longer be appropriate to take them into account. As discussed supra, this interpretation is consistent with the plain meaning of the statute. However, even if it were to be assumed that only "dedicated," see Section 497.027, Florida Statutes, land is to be considered in determining the amount of spaces available, then the question arises as to whether a registered plat "dedicating" property for cemetery use would have the effect of "dedicating" such land under Chapter 497 when the Report of Cemetery has not disclosed such "dedication" to the Department. It is the Department's conclusion that a cemetery would be in violation of Section 497.027, Florida Statutes, if it attempted to sell cemetery property, or otherwise dispose of such property for use by the new owner for purposes other than a cemetery, if the land had been "dedicated" for cemetery use in a registered plat. Such would be the case even if the Report of Cemetery had not indicated that these lands were in fact dedicated. Once the plat has been approved and accepted by the appropriate local officials and then filed, a cemetery has done what is required to effectuate the "dedication." See generally 19 D. Linden, Dedication, Fla. Jur. §§ 13, 15-19 (2d ed. 1980). Based on the foregoing, the Department concludes that the Hearing Officer should have considered the cemetery spaces available in the acreage represented not to be "dedicated" on the Report of Cemetery of Serenity Gardens. However, this error is harmless, because the Findings of Fact demonstrate that Petitioner has failed to show need even with the elimination of such spaces from consideration.
Based upon the foregoing Findings of Fact and having considered the adequacy of existing facilities; the solvency of the trust funds of the existing facilities; the relationship between the population, the rate of population growth, the death rate and the ratio of burials to deaths; and the existing available cemeteries in the community and the licensed cemeteries in Santa Rosa County, the Department concludes that there is no need for a new cemetery in the community, as existing facilities are adequate to meet all reasonable needs. The data shows that the number of spaces available in the service area exceed the number of spaces currently needed or that will be needed in the future. However, the Department
further concludes that insufficient competition exists and that the proposed cemetery will foster and encourage competition.
Based upon the foregoing Findings of Fact and Conclusions of Law, as the need for additional competition in the community has been established as required by Section 497.006(3), Florida Statutes, and as it is within the Department's authority to grant Petitioner's Second Application to own and operate a new cemetery, the Department hereby orders that Petitioner's Second Application, submitted on August 23, 1985, to organize and operate a new cemetery located at 1347 West Highway 90, Santa Rosa County, Florida, is hereby approved for further processing subject to satisfying the following conditions, within 12 months of the date of this Final Order:
Remit to the Department $4,400, which represents the balance due on the application fee.
Complete and submit to the Department for approval development plans for the proposed cemetery.
Submit to the Department written approval from the governing zoning authority. If no zoning board or such authority exists, written approval must be obtained from a Majority of the adjacent property owners.
Submit to the Department written approval from the local Board of Health or other such agency having jurisdiction.
Submit to the Department a certified report from a registered testing laboratory establishing the water table of the property.
Designate to the Department a general manager who shall be a person of good moral character having not less than one year's experience in the cemetery business.
Complete and submit to the Department the documentation establishing a "Care and Maintenance Trust Fund.
Submit to the Department the Trustee's certification that $25,000 has been
deposited
into the "Care and Maintenance Trust Fund."
Complete and submit to the Department the documentation establishing a "Merchandise Trust Fund."
Submit to the Department certification from an Attorney or Abstract Company that the proposed acreage is free and clear
from any financial encumbrances.
Submit to the Department a copy of the deed of conveyance to the licensee, or separate recorded instrument containing the description of the property, which has printed on it the notice required by Section 497.006(4), Florida Statutes.
Develop ready for burials, not less than two acres, including but not limited to, a paved road from a public roadway to said developed section.
Remit to the Department a license fee of
$250.
Based on the foregoing Findings of Fact and Conclusions of Law and upon compliance with the provisions of paragraph 19 above, the Department is ordered to issue the license requested by Memory Park, Inc.
DONE and ORDERED in Tallahassee, Florida, this 25th day of November, 1985.
GERALD LEWIS, as Comptroller of the State of Florida and
Head of the Department of Banking and Finance
NOTICE OF RIGHTS
The respective parties are advised that within thirty days of the date of this FINAL ORDER they, or any of them, may seek judicial review of the same by filing a Notice of Appeal with the Clerk of the Department at:
Clerk
Office of the Comptroller Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32301
(904) 488-9896
and by filing a second copy of such Notice of Appeal together with the appropriate filing fee with the Clerk of the District Court of Appeal, First District, Martin Luther King, Jr., Boulevard at Pensacola and West Jefferson Street, Tallahassee, Florida 32301.
Copies furnished to:
Stephen F. Dean Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
James H. Allen, Director Division of Finance Office of the Comptroller
The Crown Building, 2nd Floor
202 Blount Street Tallahassee, Florida 32301
Gregory J. Cummings Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301
W. Douglas Moody, Jr., Esquire
119 North Monroe Street Tallahassee, Florida 32301
Alan H. Rosenbloom, Esquire
417 Canterbury Lane
Gulf Breeze, Florida 32561
Douglas L. Stowell, Esquire Suite 740
315 South Calhoun Street Barnett Bank Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 25, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 25, 1985 | Recommended Order | License to operate cemetery should be issued, though statutory need for additional cemetery does not exist, in order to create greater competition. |
