Findings Of Fact Stipulated facts In their prehearing stipulation, the parties stipulated to the following facts: Our Lady of Mercy Catholic Cemetery in Dade and Our Lady Queen of Heaven Catholic Cemetery in Broward were both owned and operated or dedicated by the Catholic Church prior to June 23, 1976. The Petitioner does not own sufficient land contiguous to the present existing cemetery operations to allow expansion. The title to the cemeteries presently operating in both Broward and Dade to-wit Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is in Archbishop Edward A. McCarthy and the Catholic Cemeteries is the corporation in which the Archbishop is the sole member and this corporation was formed for the expressed purpose of operating the cemeteries. The alternate sites proposed by the Catholic Cemeteries to-wit Our Lady of Mercy South approximately 115 acres in size and Our Lady Queen of Heaven West approximately 115 acres in size were neither owned, operated nor dedicated by the Catholic Church prior to June 23, 1976. The petitioner wishes to develop those alternate parcels of land for cemetery opera- tions and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner. The existing Catholic cemeteries and the proposed alternate sites, if approved, will provide full at-need and pre-need cemetery products and services, including ground, urn and mausoleum burial, vault and memorial sales and installation, opening and closing, etc., as well as appropriate Catholic rituals, as required by church law and teaching. The approximate gross dollar sales of pre-need and at-need services and merchandise for 1989 was 4 1/2 million dollars. There is about a 10% increase in gross dollar sales for each succeeding year over the previous year. Members of the Catholic faith are buried in virtually every cemetery in Dade and Broward counties, except those that limit burials to members of a particular religious faith. Forest Lawn South is a licensed for profit cemetery located at 21401 Southwest 64th Street, Fort Lauderdale, Florida (305)792-9360, is approximately six (6) to seven (7) miles east of the proposed Broward County expansion and approximately nine (9) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Pinelawn Cemetery is a licensed for profit cemetery located at 13900 Southwest 117th Avenue, Miami, Florida (305)446-2922, is approximately five (5) miles east of the proposed Dade County expansion and approxi- mately ten (10) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Woodlawn Park South is a licensed for profit cemetery located at 11600 Southwest 112th Street, Miami, Florida (305)238-3672, is approximately five (5) miles northeast of the proposed Dade County expansion and approximately eleven (11) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. It costs a minimum of $459,647.00 annually to maintain the developed acreage at both Our Lady of Mercy Cemetery and Our Lady Queen of Heaven Cemetery. At the time of purchase of Our Lady of Mercy, the purchase was for 256 acres and in 1972, 128 acres were sold leaving a 128 acre cemetery of which 61 acres remain undeveloped. Our Lady Queen of Heaven Cemetery in Broward County was 120 acres in size of which 65 acres remain undeveloped. The approximate distance between the existing cemetery Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is approximately 20 miles. The distance between each of the existing cemeteries and the proposed alternate sites on a straight line is approx- imately 10 miles. The distance, driving by car, using the shortest reasonable route, is 17.5 miles between Our Lady of Mercy and the proposed South Dade site, and 16.3 miles between Our Lady Queen of Heaven and its proposed Davie (Broward) site. The Archdiocese of Miami covers all of Dade, Broward and Monroe Counties and the Archdiocese considers the area of service to cover the entire Archdiocese. The Archdiocese of Miami by and through its agent Catholic Cemeteries has not applied for a license for either of the proposed alternate sites. Lakeside Memorial Park, a private commercial cemetery restricted to Jewish burials is licensed by the Division of Finance, Department of Banking and Finance and is not operated, owned or controlled by any church or synagogue. Woodlawn Park, an old established private, commercial licensed cemetery in Miami, desired to expand to a separate location more than ten (10) miles away. A separate license to operate that extension cemetery known as Woodlawn South was issued. At the time of licensure of Woodlawn South, a separate corporation from Woodlawn Park, the majority of stock of both corporations was held by the Sharp family. However, the minority stockholders were different. The holding company owning Miami Memorial Park, Flagler Memorial Park and Dade Memorial Park was issued a separate license for its expansion cemetery known as Dade South Memorial Park. None of these cemeteries are owned, operated or controlled by churches or synagogues. There are existing, unlicensed church cemeteries which are exempt under Sec. 497.003, F.S. If such expansions of cemeteries grandfathered pursuant to Sec. 497.004, F.S., have occurred, the Department would not have required these expansions to obtain a license if such expansions were on contiguous property separated by no more than a road. However, it is the established and enforced policy of the Department of Banking and Finance, Division of Finance, to require separate application and proof of need for each proposed cemetery site which is not contiguous to an existing licensed cemetery. In determining need, the Department compares the number of available spaces with the projected burials over a thirty year period. The Memorial Sunset Park case is on appeal to the First District Court of Appeal (Tallahassee). The issue of whether there is a need for these alternate parcels pursuant to Sec. 497.006 is not an issue in this case. The Catholic Cemeteries has not applied for a license and, in fact, takes the position that it is a violation of the religion clauses to require it to apply for such an application and that its alternate parcels are exempt from regulation. Petitioner acknowledges that should Petitioner in the future file an application for license, thus requiring a showing of need, said proceeding will be a de novo hearing. Additional facts established at hearing. South Dade Palms Memorial Park in Dade County, which operates Palms Memorial Park, provides for the burial of persons of all faiths, including those of the Roman Catholic faith. The rites of the Roman Catholic Church are conducted both on the cemetery grounds and in the mausoleum chapel when appropriate. The cemetery has in the past and presently is accepting Roman Catholics for burial, and will continue to do so in the future. Memorial Sales, Inc., which operates Miami Memorial Park, Flagler Memorial Park, Dade Memorial Park, and Dade South Memorial Park (which is 9.5 driving miles from the Dade Alternate Parcel) provides for the burial of persons of all faiths, including those of the Roman Catholic faith. Each of these cemeteries has in the past and presently are accepting Roman Catholics for burial, and will continue to do so in the future. All rites of the Roman Catholic Church may be performed at graveside or at any structure available on the cemeteries for such purposes. The Department of Banking and Finance, through its Division of Finance, has inspected the cemeteries known as Our Lady of Mercy and Our Lady Queen of Heaven. The inspection revealed that the cemeteries are maintained in immaculate condition by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., possesses the only cemeteries in Dade and Broward Counties that exclusively furnish burial services to Catholics. Only persons of the Catholic faith and their families are buried in cemeteries operated by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., previously engaged an independent contractor, E.C. Wesner and Associates, Inc., of Margate, Florida, to sell pre- need cemetery burial rights and merchandise for the existing cemeteries operated by Petitioner. The authority and personal responsibility of Archbishop McCarthy for the Catholic Cemeteries are set by the Code of Canon Law, which is promulgated under the authority of the Pope. The Archbishop is personally charged with maintaining, under Church law, the appropriate norms on the discipline to be observed in cemeteries, especially with regard to protecting and fostering their sacred character. 3/ In the cemeteries operated by Catholic Cemeteries, Inc., religious services are frequently held at the grave sites, and all of the cemeteries have altars and religious shrines located throughout the cemetery grounds where members of the Catholic Church come to pray seven days a week. Additionally, the cemeteries celebrate Catholic Mass on the premises each year during Memorial Day and All Souls' Day and on other significant days in the liturgical life of the Catholic Church. Catholic Cemeteries, Inc., does not sell cemetery lots. Rather, Catholic Cemeteries, Inc., sells licenses for entombment. Because of the important role of the cemeteries in the Roman Catholic religion, the availability of those licenses is limited to Members of the Catholic Church and their family members. Pursuant to the Code of Canon Law, Catholic cemeteries are sacred places to be used for worship and burial of members of the Roman Catholic Church. Such services are conducted according to the official rites of the Church. The Catholic cemetery, like the parish church, is an important part of Catholic life and religious practice. Catholic Cemeteries, Inc., is a religious institution and constitutes an integral part of the religious mission of the Catholic Church. The religious practices and beliefs of Petitioner are of great importance to Petitioner and should be accorded the utmost respect. According to Guidelines for Funeral Rites in the Catholic Church (hereinafter "Guidelines"), "the preferred place for the burial of Catholics is a Catholic cemetery." However, there are at least four "circumstances [which] have for some time permitted burial of Catholics in a non-Catholic cemetery even where Catholic cemeteries are available. . . . Other circumstances of a pastoral nature [justifying the burial of Catholics in a non-Catholic cemetery] may exist in various areas of the country." Accordingly, it is not impermissible for Catholics to be buried in non-Catholic cemeteries, provided the individual grave site has been appropriately blessed. This flexibility by the Catholic Church in accommodating parishioners is evidenced by the stipulated fact that members of the Catholic faith are buried in virtually every cemetery in Dade and Broward Counties, except those that limit burials to members of a particular religious faith. The Petitioner has previously attempted to challenge the constitutionality of Chapter 497, Florida Statutes, in a federal court proceeding. That challenge was dismissed for lack of standing.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Declaratory Statement on the grounds that the issues raised by the petition are inappropriate for disposition in a declaratory statement proceeding under Section 120.565, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of October 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1991.
The Issue Are Rules 3F-5.004(4)(b)1. and 2., Florida Administrative Code, an invalid exercise of delegated legislative authority?
Findings Of Fact The following are the stipulated facts: On or about September 15, 1995, Trinity Memorial Gardens of Lakeland, Inc., a Florida corporation, filed an application to organize a new cemetery company to be located at the Northwest corner of Mall Hill and Griffen Roads in Polk County, Florida. By publication in the Florida Administrative Weekly on March 29, 1996, the State of Florida, Department of Banking and Finance issued a Notice of Intent to Approve the Application for a New Cemetery Company submitted by Trinity Memorial Gardens of Lakeland, Inc. On April 18, 1996, Lakeland Memorial Gardens, Inc., a licensed Florida cemetery, located at 2126 South Bartow Highway, Lakeland, Polk County, Florida, filed a Petition for Formal Proceeding pursuant to Section 120.57, Florida Statutes, to contest the proposed action of the Department to approve the proposed new cemetery. On June 24, 1997, the Florida Cemetery Association, Inc., filed a Petition to Intervene which was granted July 8, 1997. In reviewing an application for a license for a new cemetery, the Department is required to determine whether there is a need for the new cemetery in accordance with requirements of Sections 497.005(28) and 497.201(3), Florida Statutes, and Rule 3F-5.004(4), Florida Administrative Code. Rule 3F-5.004(4), Florida Administrative Code, has been in existence since approximately 1975, and was last amended on October 23, 1991. Rule 3F-5.004(4), Florida Administrative Code, for purposes of this proceeding, is a rule proposed and adopted by the Department. In reviewing the application filed by Trinity the Department purported to apply Rule 3F-5.004(4)(b)2., Florida Administrative Code, in making a determination of need on the application filed by Trinity Memorial Gardens of Lakeland, Inc. In 1993, the Florida Legislature defined for the first time the term “community” in Section 497.005(28), Florida Statutes, by passing Chapter 93-339, Laws of Florida. Rule 3F-5.004(4), Florida Administrative Code, has not been amended since the passage of Chapter 93-339, Laws of Florida. The Department of Banking and Finance has not implemented the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code, in a determination of need under Section 497.201(3), Florida Statutes, since the effective date of Chapter 93-339, Laws of Florida. It is the Department’s position that the definition of “community” contained in Section 497.005(28), Florida Statutes, “superseded” or codified the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code. The Department interprets the requirements of Rule 3F-5.004(4)(b)2., Florida Administrative Code, to mean that only those cemeteries located within a twelve mile radius of a proposed new cemetery will be considered in determining need for a new cemetery. This interpretation by the Department has been utilized since October 18, 1990. In making a determination of need, the Department uses a fifteen-mile radius to determine the projected number of burial spaces needed in the “community” for a period of thirty years. In determining the “adequacy” of existing cemetery facilities under Section 497.201(3), Florida Statutes, the Department uses a twelve-mile radius to determine the number of spaces “available” for a period of thirty years and excludes from consideration all existing licensed or unlicensed cemeteries within a fifteen-mile radius but outside a twelve-mile radius of the proposed new cemetery. Use of twelve-mile radius, as opposed to a fifteen-mile radius, for the examination of the adequacy of existing facilities pursuant to Section 497.201(3), could, and has in the past, caused the exclusion of licensed cemeteries in the area outside of twelve miles but inside of fifteen miles. The Department noticed in the Florida Administrative Weekly the following: Notice of Proposed Rules 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 22, Number 37, September 13, 1996. Notice of Proposed Rule 3D-30.0055, Volume 22, Number 40, 5665, October 4, 1996. Notice of Withdrawal of Proposed Rules No. 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 23, Number 15, 1900, April 11, 1997. Notice of Change, Rule 3D-30.0055, Volume 23, Number 15, April 11, 1997.
Findings Of Fact The Respondent is licensed by the Florida State Board of Nursing as a Licensed Practical Nurse. On or about January 2, 1979, the Respondent, and Kathie Verlene McDonald, another Licensed Practical Nurse, resided together as roommates in an apartment in the town of Indian Harbor Beach, Florida. They were both at that time employed as Licensed Practical Nurses at the Holmes Regional Medical Center, which is also known as Brevard Hospital. On the evening of January 2, McDonald was the victim of a knife attack by an unknown assailant. McDonald was taken to the hospital accompanied by the Respondent. The police were notified, and Stephen D. Hand, a detective employed by the City of Indian Harbor Beach Police Department conducted the investigation. He came to the Respondent's apartment on the night of January 2. Two other police officers were already at the scene, and the apartment door was open. He observed a towel full of blood on the couch in the living room and one on the floor in the bathroom of the apartment. He entered the bathroom, and found syringes and various pills. There was a trail of blood leading into one bedroom. He followed the trail, and found additional pills in the bedroom, and several small plants which were later identified as cannabis sativa on the window sill. On his way out of that bedroom he observed through the open door of another bedroom several pills on a dresser. He seized all of the pills and the cannabis sativa plants. He also seized from the living room of the apartment a pipe, a smoking device called a "bong", and cigarette rolling papers. Residue of cannabis sativa was later identified in the pipe. At the time he conducted this investigation, Detective Hand was 22 years old and had been employed as a detective for only a few months. He is the only, and the first detective employed by the Indian Harbor Beach Police Department. At no time during the investigation did he obtain a search warrant, despite the fact that he observed drugs which he thought might be illicit, and despite the fact that he had ample opportunity to secure the premises and obtain a search warrant. No criminal charges were ever brought against the Respondent, or against Kathie Verlene McDonald. The drugs which Detective Hand seized were turned over to the Holmes Regional Medical Center. On January 12, 1979, the Director of Nursing at Holmes Regional Medical Center, Sally A. Taylor, confronted the Respondent and Hilton with the drugs that had been seized from their apartment. The Respondent told her that some of the pills had been obtained by prescription, and that some were not prescription drugs. The Respondent admitted that she had taken some Dalmane, a prescription drug which is also a a controlled substance, from the hospital. McDonald testified that she had taken some Surfak, a non-prescription drug which is not a controlled substance from the hospital. Both the Respondent and McDonald admitted to taking some used syringes home from the hospital. The Respondent and McDonald told Miss Taylor that the drugs were taken inadvertently . Taylor testified at the hearing that they did not tell her the drugs were taken inadvertently, and that she felt the Respondent and McDonald admitted to stealing the drugs. The testimony of the witness Taylor is in conflict with testimony that the witness had given earlier at a deposition. The deposition was received in evidence as Hearing Officer Exhibit 1. The testimony is also contrary to the testimony of Virginia Bixby, the Assistant Director of Nursing at Holmes Regional Medical Center, who was present during the interview. The testimony of the witness Taylor that the Respondent and McDonald admitted to taking the drugs home other than through a mistake is not creditable. There is no competent evidence in the record in this case from which it could be concluded that any drugs were taken from the hospital other than inadvertently. The testimony in this matter does not reveal which of the seized drugs were taken from the bathroom, and which were seized from which of the two bedrooms. Neither does the testimony reveal which of the Respondents used which bedroom. Detective Hand testified that he recalled either McDonald or Hilton telling him at a later date that the bedroom where the cannabis sativa was found was McDonald's bedroom. His memory in this regard was, however, quite blurred, and is not worthy of reliance. There is no competent evidence in this matter from which it could be concluded that the Respondent was in possession of any particular combination of the pills and drugs seized from her apartment, or that McDonald was in possession of any of them. Indeed, it was not established whether other persons than the Respondent and McDonald occupied the apartment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered dismissing the complaint filed against the Respondent, Linda Sue Hilton. RECOMMENDED this 1st day of June, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jerrold A. Bross, Esquire Geraldine B. Johnson MITCHELL, LITUS, BROSS & HENDERSON Investigation & Licensing 2323 S. Washington Avenue Coordinator Suite 117 Board of Nursing Titusville, Florida 32780 111 East Coastline Drive Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32201 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Linda Sue Hilton 201 Harbour City Parkway Apt. 331F CASE NO. 79-351 Indian Harbor Beach, Florida 32937 As a Licensed Practical Nurse License Number 0468911 /
Findings Of Fact Application No. 76-00336 is a request by the City of Plant City, Florida, for a new use from a single well at a location approximately 31 miles east of downtown Plant City. The well would be located in the Hillsborough Basin. The average annual daily withdrawal sought is 2.0 million gallons with a maximum daily withdrawal sought being 3.5 million gallons. The amount requested is consonant with the needs of the city and contains provision for some growth. The Plant City service area encompasses 8,600 acres. The sought for consumptive use will not significantly induce salt water intrusion. The consumptive use sought may interfere with existing legal uses. There are a number of private wells, perhaps 50-60, in the area. Most of these wells are in a subdivision known as Pleasant Acres. These wells will experience drawdowns of up to 4.3 feet which may cause the pump to break suction during the dry season or line pressure to drop. Further, the average drawdown at the property boundary created by the sought for consumptive use will be approximately 6.3 feet. The boundary of the well site is approximately 150 feet from the well. The well could have been located so that the average drawdown at the property boundary would not have been in excess of 5 feet. The well is already in existence, having been constructed over one year ago. The primary purpose of the well is for better fire protection and additional capacity for domestic use and growth in Plant City. The residents of Pleasant Acres are very concerned about the effect of the proposed well on their existing wells. The Southwest Florida Water Management District's staff recommends granting of the permit with the following conditions: That the City of Plant City shall install a totalizing flowmeter on the well. That the City of Plant City shall submit monthly pumpages on a quarterly basis to the following address: Chief, Technical Information Service, SWFWMD, 50560 U.S. 41 South, Brooksville, Florida. That upon completion of construction of all pumping facilities the City of Plant City will pump the permitted facility during the third week of the following May at the maximum rate of 3.5 million gallons per day for at least three days. Private well owners within a radius of mile will be notified prior to the initiation of the tests. Complaints will be handled by the city according to stipulation D. The City of Plant City shall investigate under the direction of the city engineer, all complaints by owners of private wells which are within a mile radius of the permitted facility and which relate to loss of water. Further, the city shall repair or replace at no cost to the owner, those private wells and/or the associated pumping facilities which are substantially affected by the city's with- drawals and which can be attributed to 10 feet or less of drawdown. With the exception of those matters set forth above pertaining to Subsection 16J-2.11(4)(b), F.A.C., none of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., exist, with regard to this application so as to require its denial.
Recommendation It is recommended that Application No. 76-00336, submitted by the City of Plant City, Florida, be granted in the amount of 2 million gallons per day average annual withdrawal and 3.5 million gallons per day maximum daily withdrawal, provided that the four conditions listed in paragraph 8, above, be placed upon the permit. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Salvador D. Nabong City Engineer City of Plant City P. O. Drawer C Plant City, Florida 33566 Paul Buckman, Esquire City Attorney City of Plant City City Hall Plant City, Florida 33566
