STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MEMORIAL SUNSET PARK, INC., )
)
Petitioner, )
)
vs. )
)
DEPARTMENT OF BANKING AND )
FINANCE, ) CASE NO. 89-6856
)
Respondent. )
)
and )
)
PERSHING INDUSTRIES, INC., ) d/b/a VISTA MEMORIAL GARDENS, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on July 11, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: William M. Furlow, Esquire
KATZ, KUTTER, HAIGLER, ALDERMAN, DAVIS, MARKS & RUTLEDGE, P.A.
215 South Monroe Street Suite 400
Tallahassee, Florida 32301
For Respondent: Paul C. Stadler, Jr., Esquire
Office of the Comptroller The Capitol - 1302
Tallahassee, Florida 32399-0350
For Intervenor: Robert Maxwell, Esquire
135 Westward Drive
Miami Springs, Florida 33166 STATEMENT OF THE ISSUES
The issue presented is whether Petitioner's application for authorization to establish a new cemetery should be granted.
PRELIMINARY STATEMENT
Petitioner filed an Application For Authority To Organize a New Cemetery Company, and Respondent, Department of Banking and Finance, denied that application on October 19, 1989. Thereafter, Petitioner timely requested a formal hearing regarding its application, and this cause was transmitted to the Division of Administrative Hearings for the conduct of that formal proceeding. A subsequent Petition to Intervene filed by Intervenor, Pershing Industries, Inc., d/b/a Vista Memorial Gardens, was granted.
Prior to the formal hearing, the parties filed a Prehearing Stipulation which narrowed the issues in dispute in this cause. The parties stipulated that the sole reason for the denial of Petitioner's application was that the Department of Banking and Finance had determined that there is no need for a new cemetery in the community since existing facilities are adequate to meet all reasonable needs.
Petitioner presented the testimony of Larry Folsom and Dr. Ira M. Sheskin.
Additionally, Petitioner's Exhibits numbered 1-7 were admitted in evidence. Larry Folsom also testified on behalf of the Department, and the Department's Exhibits numbered 1 and 2 were admitted in evidence. The Intervenor presented the testimony of Richard Grant and Edward Pawley, and Intervenor's Exhibits numbered 1-3 were admitted in evidence.
All parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
On September 12, 1988, Petitioner filed an application with Respondent for authority to organize a new cemetery. The application was signed by Ronald
A. Samter as President and Manuel A. Hernandez as Secretary and Treasurer.
The proposed cemetery is to be located in northwest Dade County at 18100 West Okeechobee Road.
On September 15, 1988, Respondent, through its employee Larry Folsom, wrote a letter to Samter concerning the proposed cemetery which stated:
...we need the following:
The population of Carol City, West Hialeah and Palm Springs North.
The $5,000.00 application fee.
Copies of County tax appraisal on Real Estate listed on each proponent's financial statements.
Certification of Incorporation showing Corporation is active to do business in Florida for the year 1988.
The purpose of that letter was to notify Petitioner of any information needed to complete the application.
On November 4, 1988, Folsom wrote a second letter to Samter which stated the following:
Our Office has no record of receiving the following information requested in my September 15th letter:
The population of Carol City, West Hialeah and Palm Springs North.
Copies of county tax appraisal on real estate listed on each proponent's financial statement.
Certificate of Incorporation showing the corporation is active to be in business in Florida for the year 1988.
Prior to this second letter to Samter, the $5,000 application fee had been received by Respondent.
On or about November 5, 1988, Petitioner sent Folsom a letter transmitting the items requested by Respondent. Those documents were received by the Department on November 14, 1988, and Petitioner's application became complete on that date. Although Folsom telephoned Petitioner after November 14, 1988, and there was later correspondence between Petitioner and the Department, Folsom did not write to Samter or Hernandez subsequent to November 14, 1988, to tell them that they had not complied with his requests for additional information.
At the time the application was submitted, one of the proposed cemetery's proponents, Louis A. Duran, indicated ownership of real property in Venezuela. County tax appraisals on Duran's property in Venezuela were not included with the information submitted with Petitioner's November 5, 1988, letter because Venezuela does not have tax appraisers. Therefore, it was not possible to provide "county tax appraisals" on property located in that foreign country, and none have ever been provided to the Department. It is uncontroverted that the Department determined Petitioner's application complete without county tax appraisals on Duran's real property in Venezuela.
After the application was considered by the Department to be complete, it was evaluated by Folsom, who recommended denial. Folsom did not consider available spaces in any cemeteries beyond 15 miles from the proposed cemetery. His recommendation of denial was based solely upon his conclusion that the number of spaces available in the cemeteries within 15 miles of the proposed cemetery exceeded the number of burials which would take place within 15 miles of the proposed cemetery for the next 30 years.
In Dade County, where the proposed cemetery is to be located, there are already more than six licensed cemeteries in existence.
For purposes of evaluating the necessity for a new cemetery, the community of the proposed cemetery is a circle with a radius of 15 miles from the site of the proposed cemetery.
Within 15 miles from Petitioner's proposed cemetery are located the following existing cemeteries:
Miles-Distance Available
Name from Petitioner Restrictions Spaces
Vista Memorial 8.6 None 85,821 Gardens
Our Lady of Mercy 10.0 Catholic 93,700
Lakeside Memorial 11.0 Jewish 51,746 Park
Dade Memorial Park 10.0 None 54,656
Flagler Memorial Park 15.0 None 14,448 Mount Nebo 15.0 Jewish Unknown
Mount Sinai Memorial 10.0 Jewish 2,027 Park
Lincoln Memorial Park 15.0 None 1,259
Menorah Gardens 15.0 Jewish 72,000
Our Lady of Mercy, Lakeside Memorial Park, Flagler Memorial Park, Mount Nebo, Mount Sinai, Lincoln Memorial Park, and Menorah Gardens do not obtain the majority of their burials from the same community as that of the proposed cemetery.
The total number of spaces in the remaining two cemeteries located within Petitioner's community (Vista Memorial Gardens and Dade Memorial Park) is 140,477.
The community of the proposed cemetery falls within both Dade and Broward Counties. The expected number of burials within the Dade County portion of Petitioner's community for the 30-year period commencing January 1, 1991, is 291,722. The expected number of burials within the Broward County portion of Petitioner's community for the same 30-year period is 47,685. The total expected burials within Petitioner's community for the 30-year period beginning January 1, 1991, is 339,407.
Even if the number of spaces available at Vista Memorial Gardens were increased to 144,016 (the maximum estimate by Vista if the cemetery builds its planned mausoleums), and even if the spaces available at Our Lady of Mercy were considered (due to the high density of Catholic population included in a portion of Petitioner's community), the total number of spaces available is 292,372, which is well below the projected 30-year need in Petitioner's community of 339,407.
There is a need for Petitioner's proposed cemetery.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 497.006(3), Florida Statutes, provides as follows:
The department shall determine the need for a new cemetery in the community by considering the adequacy of existing facilities, licensed and unlicensed, within the county; 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 deaths to meet the projected need for burial spaces for a period of 30 years. 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.
Prior to October l, 1987, the words "...within the county..." were not included in the above-quoted statute.
Rule 3D-30.015(4), Florida Administrative Code, provides as follows:
(4) Criteria for licensing a new cemetery.
In making its determination as to the need for an additional cemetery company for the general benefit of the public, the Department shall not increase the available inventory of burial spaces beyond the expected need for a period of 30 years from the date of application.
In the investigation to determine need for a new cemetery the Department shall consider the following criteria:
The community in which the cemetery
is to be located shall be defined for the purpose of seeking authority to organize a cemetery pursuant to Chapter 497, F.S., as the smallest area contiguous to the proposed cemetery from which approximately seventy-five percent of sales of burial spaces are expected to be derived.
After the community area is
determined, the Department shall consider the adequacy of the existing facilities by obtaining from all profit, nonprofit, religious, and municipal cemeteries that would also derive the majority of their sales from the same community as the applicant, the number of burial spaces available in ground burials, lawn crypts, mausoleums, including contemplated mausoleum structures in which sales have been made, requiring construction within five years from date of sale, plus unplatted reserve acreage as stated on the annual report of cemetery estimated at 1200 burial spaces per acre.
The population, its rate of growth,
the death-rate, and the ratio of burials to deaths shall be determined from latest statistical information available for the community in which the proposed cemetery is to be located.
This Rule has not been amended since 1981.
No evidence was presented regarding the legislative intent in adding the words "... in the county..." to Section 497.006(3), Florida Statutes, and no party has filed a challenge to Rule 3D-30.0l5, Florida Administrative Code. Although the Intervenor has argued that the Rule is no longer viable since it seems to be in conflict with the statute, a much more compelling argument is that if the Rule and the statute can reasonably be interpreted in such a manner as to be consistent with one another, that is the interpretation that should be used.
First, it should be noted that the statute allows the Department to presume that the need for a new cemetery exists if there are less than six existing cemeteries within the county of the proposed cemetery. In order to do that, the Department must necessarily consider all of the cemeteries "within the county." Second, the statute is vague on how the enumerated factors should be utilized in determining the "need" for a new cemetery. The Rule, on the other hand, is very specific about how each piece of information is to be utilized in determining "need." It is logical for the Department to consider the adequacy of cemeteries within the county by counting available spaces in cemeteries which draw the majority of their sales from the same community as that of the proposed cemetery, especially in view of the Department's policy that a cemetery's community is a circle with a radius of 15 miles. (This policy was stipulated to by all parties.) If the Department had determined that the change in the statute invalidated a portion of the existing Rule, it could have amended or repealed the Rule within the nearly three years since the change in the statute. Since the Rule has not been amended, repealed, or challenged, both the statute and the Rule must be applied in this proceeding in a consistent, not conflicting, manner. Finally, although Intervenor argues that all spaces available in both Dade and Broward Counties should be counted, the Intervenor does not argue concomitantly that the projected populations of both counties should be considered.
The Department relied on its Rule in evaluating Petitioner's application in this cause. At the final hearing, both the Department and the Petitioner relied upon the Rule in presenting evidence as to whether there is a need for Petitioner's proposed cemetery. Although the Intervenor stipulated with the other parties to abide by the Department's non-rule policy of considering cemeteries within a 15-mile radius of the proposed cemetery as controlling without the need for the Department to "prove up" its non-rule policy, the Intervenor argues that certain deviations from the Rule should be made. The Intervenor's evidence to support such deviations cannot be considered. For example, a witness for the Intervenor testified that Vista Memorial Gardens intends to perform 2,400 burials per acre although the Rule specifically establishes the standard of 1,200 burials per acre, because Vista uses "double depth" burials. While the Department's witness agreed that some cemeteries do set aside some sections for "double depth" burials, the Intervenor did not file a rule challenge to invalidate the Department's Rule, and, therefore, the Rule's standard must be applied in this proceeding. Similarly, Vista's argument that the number of spaces in mausoleums that it intends to
build over the next 30 years should be considered is without merit. The Rule specifically limits consideration of contemplated mausoleum structures to those in which sales have already been made and which are thereby required to be constructed within five years from the date on which a sale was made. Lastly, the Intervenor's argument that the spaces available in all cemeteries within a 15- mile radius should be considered is without merit. The Rule specifically requires the counting of available spaces only in cemeteries that would also derive the majority of their sales from the same community as the applicant.
In determining the dates for the 30-year period for the projections required by both the statute and the Rule, the parties disagree. The Intervenor argues that the 30-year period should commence in 1988 when the application was filed. In reviewing the application, the Department initially computed its projections starting with the year 1988. At the final hearing, both the Petitioner and the Department presented their evidence based upon a 30-year period commencing January l, 1991, and ending with the year 2020. Both the Department and the Petitioner appear to assume that since it will be the end of 1990 before a Final Order is issued granting or denying Petitioner's application, starting the projections in the year 1988 to determine whether Petitioner has met the need criteria would in effect render the 30-year period in actuality a 28-year period due to the length of time this application has been pending final determination. The statute is silent on the commencement point for the 30-year period. The Rule establishes the period as 30 years from "the date of application." It does not provide, as Intervenor appears to argue, for a period of 30 years from the date the application is filed. Since this is a de novo hearing, since the Department's denial of Petitioner's application was a preliminary determination only and, since the Department has adjusted its projections to commence in 1991 and end in 2020, the Department's interpretation of its own rules is entitled to great weight, and the period from January 1, 1991, though 2020 has been accepted and utilized in this Recommended Order.
The unrebutted testimony established that the Department in its computations relied upon the number of available spaces in all cemeteries within
15 miles of the proposed cemetery. The Rule plainly states that spaces are to be counted only in those cemeteries that derive a majority (over half) of their sales from the same community as the proposed cemetery. If an existing cemetery were to be placed on the perimeter of the 15-mile radius circle (the edge of the proposed cemetery's community) and a 15-mile radius circle were drawn around that existing cemetery, it is obvious that more than half of the existing cemetery's circle falls outside of the proposed cemetery's circle. Therefore, it would logically follow that spaces in a cemetery located 15 miles away from the proposed cemetery should not be counted.
Additionally, in determining whether an existing cemetery obtains the majority of its sales from the proposed cemetery's community, it is logical to consider any restrictions imposed upon burials at existing cemeteries. All other things being equal, the more restrictive the existing cemetery, the less likely it will be that it draws the majority of its sales from the community of the non-restrictive proposed cemetery. In this case, four of the competing cemeteries restrict burials to Jewish persons only. The Jewish population within the community of the proposed cemetery was established to be approximately two percent. It would, therefore, be unlikely for the majority of sales of any of those Jewish cemeteries to come from the proposed cemetery's community. With respect to the Catholic cemetery, it was established that 28 percent of the population of the proposed cemetery's community is Catholic. It would similarly be unlikely that the majority of sales of that Catholic cemetery would come from the proposed cemetery's community. Based upon the plain
language in the Rule and the policy of the Department with respect to the definition of "community," the only cemeteries which should be counted are Vista Memorial Gardens and Dade Memorial Park.
The only expert demographer who testified in this proceeding testified on behalf of the Petitioner. He testified that he utilized many of the Department's numbers in calculating his own projections. Where he deviated from the Department's numbers, he clearly established the superiority of his base data and calculations to those utilized by the Department. For example, his and the Department's numbers for burials in the Dade County segment of Petitioner's community differed. The Department used the 1987 burial rate of 60.97 percent for Dade County. No explanation was offered as to why the Department chose the 1987 burial rate. On the other hand, Petitioner's expert used an increasing burial rate during the 30-year projection. His calculations are based upon the statistical technique called "regression" which resulted in a beginning burial rate of 62.82 percent and an ending burial rate (in 2020) of 71.48 percent.
This increase in burial rate is consistent with the 1980-1987 history of Dade County and the population trends in Dade County. The population numbers utilized by Petitioner's expert in arriving at the number of burials in the Dade County portion of Petitioner's community, as well as being the same numbers as used by the Department (and agreed to by the Intervenor in the Prehearing Stipulation) were consistent with the documentation published by the Dade County Planning Department. Those documents show rapid population growth in the area in question, despite the fact that a significant percentage of that land is unsuitable for housing.
The Department's numbers for burials in the Broward County portion of Petitioner's community and Petitioner's expert's numbers differ. The Department, to obtain the 1990 population figure, used 1980 census data to determine the percentage of the Broward County population which lived inside the Broward County portion of Petitioner's community, which was 15 percent. The Department then assumed that 15 percent would be the percentage of the Broward County population that would live in that area in 1990. No explanation was offered by the Department for such an assumption. On the other hand, Petitioner's expert utilized the latest population figures and growth projections published by the Broward County Planning Department, which showed a dramatic increase in the percentage of Broward County residents living in the southwest portion of Broward County, the area included in Petitioner's community. Petitioner's approach is clearly more logical and in accordance with the Department's own Rule. The Departments approach, however, was not consistent with its own Rule which requires the use of the latest statistical information available and was not even consistent with the Department's method of determining the population for the Dade County portion of Petitioner's community.
Since the weight of the credible evidence establishes that the 30-year need in the community of the Petitioner's proposed cemetery exceeds the number of available spaces in cemeteries which derive the majority of their sales from Petitioner's community, the Petitioner has proven the existence of "need" as contemplated by Section 497.006(3), Florida Statutes.
Section 120.60(2), Florida Statutes, provides as follows:
When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and
privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period.
...Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. Any
application for a license which is not approved or denied within the 90-day or shorter time period...shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.
During the 30-day period following receipt of Petitioner's application on September 12, 1988, the Department notified Petitioner that four items were needed to complete the application. By letter dated November 5, 1988, the remaining requested items were provided to Respondent. Although the Department has argued that one of the four items was not provided, the requested county tax appraisals for properties owned by one of the proponents, which were located outside of this country, do not exist. Since the information that the Department claims was not provided, did not exist, and could never, therefore, be provided, the application was in fact complete as of November 14, 1988, when the Department received the Petitioner's letter of November 5, 1988. Therefore, the 90- day period within which the Department was required to approve or deny the application began on November 14, 1988. Since the application was not approved or denied within 90 days from November 14, 1988, the application should have been approved as a matter of law on February 13, 1989.
The Department's argument that the 90-day period began on February 3, 1989, has no factual or legal merit. On February 3 Petitioner filed with the Department a second financial statement of Louis A. Duran, the Venezuelan property holder. No evidence was offered and no argument was made that the second financial statement was in fact county tax appraisals. A financial statement for Duran was included with the application filed by Petitioner on September 12, 1988, and a second financial statement was not requested by the Department in its 30-day "completion" letter. Therefore, the second statement did not start, stop, or affect the 90-day time period.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Banking and Finance issue a Final Order finding that the Petitioner has met the criteria set forth in Sections 497.006(2) and (3), Florida Statutes, and issuing to Petitioner a cemetery license upon Petitioner's compliance with Section 497.006(4), Florida Statutes.
RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September 1990.
LINDA M. RIGOT
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 6th day of September 1990.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6856
Petitioner's proposed findings of fact numbered 1-14 have been adopted either verbatim or in substance in this Recommended Order.
The Department's proposed findings of fact numbered 2(b), 2(c), and 11(c) have been adopted either verbatim or in substance in this Recommended Order.
The Department's proposed findings of fact numbered 2(a), 2(e), 2(k), 2(1), 3(a), 3(c), 3(e), 4(a), 5, 6(a), 6(c), 7(a-c), 9(a), 10, 11(a), 11(b), 12, 13, and 14(a)-16(c) have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.
The Department's proposed findings of fact numbered 2(d), 2(f), 2(h-j), 8(a), 8(b), 11(d), and 11(e) have been rejected as being irrelevant to the issues under consideration herein.
The Department's proposed findings of fact numbered 2(g), 4(d), and 4(e) have been rejected as not being supported by the weight of the credible evidence in this cause.
The Department's proposed findings of fact numbered 2(m), 3(b), 3(d), 3(f), 4(b), 4(c), 6(b), 9(b), and 9(c) have been rejected as being unnecessary for determination of the issues in this cause.
Intervenor's proposed findings of fact numbered 1-3, 11, and 12(b)- 12(h) have been adopted either verbatim or in substance in this Recommended Order.
Intervenor's proposed findings of fact numbered 4, 9, and 12(i) have been rejected as not being supported by the weight of the credible evidence in this cause.
Intervenor's proposed findings of fact numbered 5 and 6 have been rejected as being unnecessary for determination of the issues herein.
Intervenor's proposed findings of fact numbered 7, 8, and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.
Intervenor's proposed findings of fact numbered 12(a) and 13 have been rejected as being irrelevant to the issues under consideration herein.
COPIES FURNISHED:
William M. Furlow, Esquire
KATZ, KUTTER, HAIGLER, ALDERMAN, DAVIS, MARKS & RUTLEDGE, P.A.
215 South Monroe Street Suite 400
Tallahassee, Florida 32301
Paul C. Stadler, Jr., Esquire Office of the Comptroller
The Capitol - 1302
Tallahassee, Florida 32399-0350
Robert Maxwell, Esquire
135 Westward Drive
Miami Springs, Florida 33166
The Honorable Gerald Lewis Comptroller, State of Florida The Capitol
Tallahassee, Florida 32399-0350
William G. Reeves General Counsel
Department of Banking and Finance The Capitol
Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF FINANCE
MEMORIAL SUNSET PARK, INC.,
Petitioner, Administrative Proceeding No.: 1575-F-11/89
vs. DOAH CASE No.: 89-6856
DEPARTMENT OF BANKING AND FINANCE,
Respondent,
and
PERSHING INDUSTRIES, INC., d/b/a VISTA MEMORIAL GARDENS,
Intervenor.
/
FINAL ORDER
This matter has come before the undersigned as head of the Department of Banking and Finance ("Department") for the entry of a final order in the above referenced proceeding, On September 6, 1990, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order in this proceeding, a copy of which is attached hereto as Exhibit A. On September 18, 1990, Intervenor, Pershing Industries, Inc., d/b/a Vista Memorial Gardens ("Intervenor" or "Vista") filed its exceptions to the Recommended Order, a copy of which are attached hereto as Exhibit B. On September 21, 1990, the Department filed its exceptions to the Recom- mended Order, a copy of which are attached hereto as Exhibit C. On September 26, 1990, Petitioner filed its Response to Intervenor's Exceptions, a copy of which is attached as Exhibit
D. No other responses to the exceptions filed by Vista and the Department have been filed by any of the parties to this proceeding.
This matter arose when Petitioner, Memorial Sunset Park, Inc., ("Petitioner or Memorial") submitted an Application for Authority to Organize a New Cemetery Company on September 12, 1988, to the Department. The Department denied the application on October 19, 1989, and Petitioner timely requested a formal administrative hearing on the Department's determination. The matter was transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal
hearing. Vista subsequently filed a Petition to Intervene which was granted by the Hearing Officer. A formal hearing was held on this matter on July 11, 1990 in Miami, Florida. The Hearing Officer's September 6, 1990 Recommended Order recommends that the Department issue a Final Order finding that the Petitioner has met the criteria set forth in Sections 497.006(2) and
, F.S., and to issue a cemetery license to Petitioner upon its compliance with the provisions of Section 497.006(4), F.S. The Department and Vista have timely filed exceptions to the Recommended Order.
RULINGS ON EXCEPTIONS FILED BY VISTA
Vista's first exception to the Recommended Order is that the Hearing Officer failed to take into account the number of burial spaces available in Mount Nebo cemetery, one of the nine cemeteries within a fifteen mile radius of Petitioner's proposed cemetery. Having reviewed the pleadings, exhibits and transcript of hearing, it is determined that there is no evidence in the record showing the exact number of burial spaces available in Mount Nebo cemetery.
The Prehearing Stipulation signed by all of the parties left blank the number of burial spaces available at that particular ceme- tery. There was no stipulation made at the hearing to correct or supplement the Prehearing Stipulation by any of the parties. The Hearing Officer also found that Mount Nebo did not obtain a majority of its sales from the same communi- ty as that of the applicant and therefore, it should not be considered in determining the need for the applicant's proposed cemetery pursuant to the Department's rule. Accordingly, since the is no competent substantial evi- dence in the record to establish the number of burial spaces available at Mount Nebo cemetery, Vista's first exception is rejected.
Vista's second exception to the Recommended Order is that there is no evidence to support the Hearing Officer's finding that seven of the nine cemeteries do not obtain "the majority of their burials" from the same community as that of the proposed cemetery and that by eliminating those seven cemeteries in determining need, the provisions of the statute are disregarded. The Hearing Officer accepted the testimony of the Petitioner's expert demographer regarding his calcula- tions and projections regarding population growth and market sales to establish the need for Petitioner's proposed ceme- tery. The Hearing Officer concluded that the credible evi- dence established the need for Petitioner's proposed cemetery. Having reviewed the pleadings, exhibits and transcript of hearing, it is determined that there is competent substantial evidence to support the Hearing Officer's findings in this regard. Accordingly, Vista's second exception is rejected.
Vista's third exception to the Recommended Order is that the Hearing Officer misconstrued its argument regarding the effectiveness of the Department's Rule 3D-30.015, F.A.C. The Intervenor's argument at hearing was that Rule 3D-30.015, F.A.C., was effective except to the extent that it had been modified by a 1987 legislative change which would require the Department to consider all licensed and unlicensed cemeteries within the county. The Hearing Officer did not find that the Department's rule and the statute conflicted with one another; rather, she concluded that the statutory and rule provisions should be interpreted in a manner so as to be consistent with one another. The Department concurs in this interpretation. Accordingly,
Vista's third exception is rejected.
Vista's fourth exception to the Recommended Order is that the Hearing Officer in her conclusions of law noted that Section 497.006, F.S., "allows the Department to presume that the need for a new cemetery exists if there are less than six existing cemeteries within the county of the proposed ceme- tery." Vista argues that this statement is inconsistent with the statutory language.
Vista's fourth exception is rejected as being irrelevant to the issues in this proceeding.
Vista's fifth exception is that the Hearing Officer missed the point of testimony presented by Vista that al- though the Department's Rule 3D-30.015, F.A.C., provides that vacant land shall be considered at 1200 spaces per acre, Vista uses double depth burials and therefore when determin- ing the number of future spaces available at Vista, 2400 spaces should be considered rather than the 1200 prescribed by Department rule. This argument was presented to the Hearing Officer at hearing and in Vista's Proposed Recom- mended Order and was rejected. Since this is not a rule challenge proceeding, the provisions of the rule requiring a calculation of 1200 spaces per acre are presumed to be valid.
Accordingly, Vista's fifth exception is rejected.
Vista's sixth exception is that the Hearing Officer did not allow one of Vista's witnesses to testify at the hearing regarding the available body placements at Dade Memorial Park. The Hearing Officer did not allow the witness to testify since the witness had not been disclosed on the parties' Prehearing Stipulation and the proposed testimony was objected to by counsel for Petitioner. Accordingly, Vista's sixth exception is rejected.
Vista's seventh exception is to the Hearing Officer's conclusions of law rejecting Intervenor's argument that the spaces available in all cemeteries within a 15-mile radius should be considered and finding that the Department's rule requires the counting of available spaces only in cemeteries that would derive the majority of their sales from the same community as the Petitioner. The Department concurs with the Hearing Officer's conclusion and Vista's seventh exception is rejected.
Vista's eight exception is to the Hearing Officer's conclusions of law that Petitioner has proven the need for its proposed cemetery as contemplated by Section 497.006(3), F.S. Petitioner presented the testimony of an expert demographer who testified as to his calculations and projections in establishing the need for the proposed cemetery. The Hearing Officer found the weight of the credible evidence established the need for Petitioner's proposed cemetery. There is competent substantial evidence in the record to support the Hearing Officer's findings and conclusions and Vista's eighth exception is rejected.
Vista's ninth exception argues that Petitioner has not proved that the nine existing cemeteries will not derive a majority of their sales from the Petitioner's community. Petitioner presented the testimony of an expert demographer who testified that seven of the nine existing cemeteries do not obtain a majority of their sales from the same community as that of the proposed cemetery and should be excluded in determining need. There is competent substantial evidence in the record to support the Hearing Officer's findings and conclusions in this regard and Vista's ninth exception is rejected.
RULING ON REQUEST FOR ORAL ARGUMENT BY VISTA
The Intervenor's request for oral argument is denied. The need for oral argument before the agency head has not been demonstrated.
RULINGS ON EXCEPTIONS FILED BY DEPARTMENT
The Department's first exception is that there is no competent substantial evidence to support the Hearing Officer's finding that the Petitioner's application became complete on November 14, 1988. Having reviewed the plead- ings, exhibits and transcript of hearing, it is determined
that there is no competent substantial evidence in the record to support the Hearing Officer's finding. The Department sent a deficiency letter to the Petitioner on September 15, 1988, requesting four additional items to complete the application. A second follow-up letter was sent on November 4, 1988, indicating that three of the requested items had still not been provided to the Department. The November 4, 1988, letter specifically stated that "[y]our application will be held in abeyance until the above items have been received." In response to that letter, the Petitioner provided the Department with three of the originally request- ed items which were received by the Department on November 14, 1988. The fourth item, the county tax appraisals on real property listed on the financial statements, were not re- ceived by the Department until February 3, 1989. [Depart- ment's Composite Exhibit 1, Subexhibit N] During the interim period of time, between the receipt of the application and the Department's denial, there were numerous oral and written communications between Department employee, Larry Folsom, and employees of the Petitioner regarding the application. [Department's Composite Exhibit 1] A telephone conversation between Mr. Folsom and an employee of the Petitioner revealed that the Petitioner was having problems obtaining the re- quested property tax appraisals because the property was located in Venezuela which apparently does not have tax appraisers but assured the Department that the information would be provided as soon as possible. [Tr.31-32] Petition- er never provided the Department with county tax appraisals but did eventually provide the Department with a certified statement of the value of the Venezuela property. [Depart- ment's Composite Exhibit 1, Subexhibit N; Tr. 32]
The Department accepted this certified statement in lieu of the county tax appraisals, [Tr. 32]
On March 6, 1989, the Petitioner wrote to the Department and requested ninety (90) days additional time to gather the information requested by the Department concerning the application. [Resp. Ex. 1, Subexhibit O] On March 10, 1989, the Department responded in writing and stated that:
[t]he Florida Administrative Code requires the Department to act upon your application within 90 days of a completed application, You satisfied that completion on February 3, 1989. In order for us to give you an additional 90 days, it will be necessary for you to give the Department a 90 day extension from May 4, to act upon your application. The extension would allow the Department until August 2, 1989, to either approve or deny your application. [Resp. Ex, 1, Subexhibit P]
By letter dated March 17, 1989, Petitioner responded, "[p]ursuant to your letter dated March 10, 1989, this is my authorization for the Department to have a 90 day extension from May 4, 1989 to consider my application, I understand that the Department will then have until August 2, 1989, to act upon it,"
[Resp. Ex. 1, Subexhibit Q] On June 26, 1989, the Department wrote to Petitioner and stated:
[a]lmost 60 days of the 90 day extension has lapsed and we have not received your proposal. In order to grant us sufficient time to properly review your proposal, we are requesting that you grant us an additional 90 days from August 2, 1989, to make a
decision on your application . . . The 90 day extension would give us until October 31, 1989, to make a decision. [Resp. Ex. 1, Subexhibit R]
On July 21, 1989, Petitioner wrote back:
[p]ursuant to your letter dated June 26, 1989, this is my authorization for the Department to have a 90 day extension from August 2, 1989 to consider my application. I understand that the Department will then have until October 31, 1989, to act upon it. [Resp. Ex. 1, Subexhibit A]
This evidence regarding the property tax appraisals and time extensions were not rebutted by the Petitioner. Accordingly, the Department's first exception is accepted and the Hearing Officer's findings that Petitioner's application was deemed complete on November 14, 1988, are hereby rejected as not supported by competent substantial evidence.
The Department's second exception is that the Hearing Officer's finding that since Venezuela does not have tax appraisers, it was not possible for the Petitioner to provide county tax appraisals to the Department is not supported by substantial evidence as there was no independent evidence presented that Venezuela does not in fact have tax appraisers. Petitioner presented no evidence to corroborate the hearsay testimony that Venezuela had no property tax appraisers. From a review of the pleadings, exhibits and transcript of hearing, it is determined that there was no competent substantial evidence to support this finding by the Hearing Officer and the Hearing Officer's finding is rejected.
The Department's third exception is that the Hearing Officer's finding that there is a need for Petitioner's proposed cemetery is not supported by substantial evidence and is in essence a conclusion of law. Having reviewed the pleadings, exhibits and transcript of hearing, it is deter- mined that the issue of whether there is a need for Petition- er's proposed cemetery is a mixed question of law and fact. There is competent substantial evidence in the record to support the Hearing Officer's finding that there is a need for the proposed cemetery and the Department's third excep- tion is rejected.
The Department's fourth exception is to the Hearing Officer's conclusions of law finding that the Department received the requested additional information on November 14, 1988, because the Petitioner was unable to provide county tax appraisals on property located in Venezuela. The
Department accepts the Department's fourth exception and hereby rejects the last three paragraphs of the conclusions of law finding that the Petitioner is entitled to a license by default for the reasons set forth earlier on the ruling on the Depart- ment's first exception.
CONCLUSION
Having ruled on all of the exceptions filed by the parties to the Recommended Order, it is ORDERED:
The Hearing Officer's findings of fact and conclu- sions of law are hereby adopted and incorporated herein except as modified or rejected in this Final Order.
The Petitioner has met the criteria set forth in Sections 497.006(2) and (3), F.S., and upon complying with the provisions of Section 497.006(4), F.S., shall be granted a license.
DONE and ORDERED this 18th day of October, 1990, in Tallahassee, Leon County, Florida.
GERALD LEWIS as Head of the Department
of Banking and Finance, Division of Finance
Copies furnished to:
Randall A. Holland, Director Paul Stadler, Esquire Division of Finance Assistant General Counsel Second Floor, Fuller-Warren Bldg. Office of Comptroller
202 Blount Street Legal Section, The Capitol
Tallahassee, FL 32399-0350 Tallahassee, FL 32399-0350
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, F.S. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCE- DURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE 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, FIRST DISTRICT, OR IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN
30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Final Order has been sent by regular U.S. Mail to William M. Furlow, Esquire, 215 S. Monroe Street, Suite 400, Tallahassee, Florida 32301, Attorney for Petitioner; Robert G. Maxwell, Esquire, 135 Westward Drive, Miami Springs, Florida 33166, Attorney for Intervenor; and to Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32899-1550,this 18th day of October, 1990.
Margaret S. Karniewicz Assistant General Counsel
Department of Banking and Finance Legal Section, The Capitol Tallahassee, FL 32399-0350
(904) 488--9896
| Issue Date | Proceedings |
|---|---|
| Sep. 06, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 1990 | Agency Final Order | |
| Sep. 06, 1990 | Recommended Order | Only spaces available in cemeteries deriving majority of sales from same community as proposed cemetery can be counted in determining if need exists |
