The Issue Is Proposed Rule 3F-5.009, Florida Administrative Code, invalid on the basis that the proposed rule is an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are found: On March 28, 1997, the Board caused to be published in the Florida Administrative Weekly, Volume 23, Number 13, the text of its proposed rule to be known as Rule 3F-5.009, Florida Administrative Code, which the Board indicated that it intended to adopt. The proposed rule reads: 3F-5009 Regulatory Standards for Evaluating Applications by the Board. When an application for authority to organize and operate a new cemetery company is filed, it is the applicant's responsibility to meet the statutory criteria warranting the grant of authority. The Department shall conduct an investigation pursuant to Section 497.201(2), Florida Statutes, and report its findings to the Board. If in the opinion of the Board, any one of the criteria as set forth in Section 497.201, Florida Statutes, which requires board review and approval has not been met and cannot be remedied by the applicant, the Department cannot approve the application. The applicant shall submit information addressing the following: Capital structure. Capital should be adequate to enable the new cemetery to provide necessary services for cemeteries, including adequate service to the community and adequate care and maintenance of the cemetery. Capital shall be sufficient to purchase a cemetery site of no less than 15 contiguous acres in fee simple unencumbered; to develop at least two (2) acres for burial spaces including paved road from a public roadway; to purchase or lease adequate equipment for the operation and maintenance of the cemetery; and to build or lease suitable facilities to operate the cemetery. An applicant shall demonstrate that it has sufficient capital to sustain its operations until its first projected profitable year. Sufficient capital shall mean that the applicant is able to cover its cumulative losses until projected profitability; provided that in no event may the tangible accounting net worth of the applicant be less than $50,000. The demonstration of sufficient capital shall be made by submittal of a business plan covering every year from inception up to and including its first projected year of profitability and providing: Revenue expectations based on the applicant's projected sources of revenue and projected revenue including number of annual sales and average sales on a unit basis and a demographic analysis of the applicant's projected market which supports this revenue projection; An analysis of the cost incurred to achieve the projected revenues including sales costs, product costs, delivery of service costs, financing of capital requirement cost, care and maintenance costs, the costs of perpetual care (including other sources of funds in the event of shortfalls in the perpetual care funds); and any information required by the Board and reasonably necessary for the Board to make a determination of the applicant's financial stability. Proposed executive officers, directors or principals. The proposed officers, directors or principals shall each submit an executed Historical Sketch, Form DBF-HS-1, effective 4/25/94, which has been incorporated in Rule 3F-5.002, and shall have reputations evidencing honesty and integrity. They shall have employment and business histories demonstrating their responsibility in financial affairs. The fact that a proposed officer, director or principal has been adjudicated bankrupt or has filed for relief under the Federal Bankruptcy Act shall be considered a material factor in the evaluation of responsibility in financial affairs. At least one (1) of the proposed directors or principals, who is not also a proposed officer, shall have had substantial direct experience as an executive officer, director or principal of a cemetery or a certificate holder licensed pursuant to Section 497.405, within 3 years of the date of the application. If in the opinion of the Board the aggregate level of experience represented by the proposed board of directors or principals is not substantial, the Board shall require the addition of other outside directors or principals who have adequate experience. The proposed general manager shall have at least 1 year of direct experience within 7 years of the application as a general manager, director, regulator of a cemetery or similar position having an equivalent level of responsibility for a cemetery. The general manager must have a reputation evidencing honesty and integrity and an employment history demonstrating competent past experience. It is not necessary that the name of the general manager be submitted with the application. However, this individual must be named and have submitted an executed Historical Sketch, Form DBF-HS-1, not later than ninety (90) days prior to applicant's intended opening date. The applicant may not open for business without prior approval of the general manager by the Department. Change of a director, chief executive officer, president, principal or general manager or the addition of any new directors, executive officers through the first two (2) years of operation shall also require approval of the Department and the Board. The Department shall conduct background investigations on the principals, general manager, executive officers, directors, and major shareholders. Any misrepresentations or omission of fact in an application by any person shall be cause for the Department or the Board to deny that person's participation in the application and to the extent such misrepresentation or omission of fact reflect upon their honesty and integrity shall be grounds for denial of the entire application. Specific Authority 497.103, F.S. Law Implemented 497.201, F.S. History - New. Eastlake's petition challenges the proposed rule on the basis that it is an invalid exercise of delegated legislative authority. Eastlake's challenge is more specifically set out in paragraphs 5 through 8 of the petition which provide: The proposed rule imposes requirements regarding: the nature of the property interest in a cemetery site necessary to obtain a license; the nature of the capital requirements necessary to obtain a license; the information to be submitted regarding the officers of a cemetery company necessary to obtain a license; the level of experience of directors and principals of the proposed cemetery company necessary to obtain a license; the level of experience of the general manager of the proposed cemetery company necessary to obtain a license; which exceed the Board's grant of rulemaking authority, and enlarge, modify, or contravene the specific provisions of law implemented. The standards established in the proposed rule regarding the "reputations evidencing honesty and integrity" of the proposed officers, directors, principals and general manager, which reputations" may lead the Board to deny a license to engage in the business of a cemetery company are vague, fail to establish adequate standards for the Board's decisions, or vest unbridled discretion in the Board, and are arbitrary or capricious. The standards regarding the ability of the Board to conduct background investigations of the principals, general manager, executive officers, directors and major shareholders, and the extent to which such investigations may allow the Board to deny a license to engage in the business of a cemetery company, exceed the Board's grant of rulemaking authority, and enlarges, modifies, or contravenes the specific provisions of law implemented. The standards regarding the ability of the Board to conduct background investigations of the principals, general manager, executive officers, directors and major shareholders and the extent to which such investigations may allow the Board to deny a license to engage in the business of a cemetery company are vague, fail to establish adequate standards for the Board's decisions, or vest unbridled discretion in the Board, and are arbitrary or capricious. Eastlake is an applicant to obtain a licenses to operate a cemetery and is the Respondent in a challenge to a Board and Department decision to grant initial approval for that license (Trinity Memorial Cemetery, Inc., et al. v. Board of Funeral and Cemetery Services, Department of Bankina and Finance, Division of Finance and Eastlake Memorial Gardens, Inc., Case No. 96-3938), and thus would be affected by the proposed rule if it goes into effect. Trinity holds a license to operate a cemetery and is a petitioner in Trinity, Case No. 96-3938 in opposition to Eastlake's application and thus would be affected by the proposed rule if it goes into effect. The Association is an industry trade association which has membership of some 109 licensed cemeteries in Florida. Its members would be affected by the proposed rule if it goes in effect insofar: (a) as the proposed rule sets forth standards for entities attempting to become licensed as cemetery companies; and (b) as its membership has a direct interest in promoting the overall quality of the cemetery industry and assuring that the entities that are licensed to provide cemetery services provide such services in a manner so as to enhance the industry as a whole. It was the unrebutted testimony of Diana Evans, Executive Director of the Board that the purpose of the proposed rule was to set standards to guide applicants seeking Board approval of their ability, integrity, financial stability, and experience to operate a cemetery, and to guide the Board in reviewing those criteria.
Findings Of Fact Prior to July 16, 1976, Belleview Memorial Park Association, Inc. operated a cemetery at the southwest corner of Belleview Avenue and Terrace Avenue in Daytona Beach, Volusia County, Florida. Belleview was properly licensed by the Department of Banking and Finance, the state agency which is responsible for regulating the operation of cemeteries, and for licensing cemetery operators. Belleview experienced financial difficulties. One of its creditors was Memorials, Inc. Memorials, Inc. sold bronze markers to Belleview, which Belleview used to mark grave sites. In order to prevent Memorials, Inc. from taking drastic collection action, Belleview gave Memorials, Inc. a mortgage on a portion of the Belleview Cemetery property. In giving the mortgage Belleview neither requested nor received approval from the Department of Banking and Finance. Belleview defaulted on the mortgage, and Memorials, Inc. initiated a foreclosure action in Circuit Court in Volusia County. A judicial sale was conducted, and a certificate of title was issued to Memorials, Inc. Belleview gave similar mortgages covering other portions of the cemetery property to two other creditors: Heritage Federal Savings and Loan Association, and Southeast Bank of New Smyrna. Belleview did not seek nor obtain approval from the Department before it issued these mortgages. Heritage and Southeast foreclosed on their mortgages, and purchased the respective parcels at a public sale. Heritage later conveyed its parcel by warranty deed to Lakeview Cemetery, Inc. Lakeview has for some years, and continues to operate a cemetery directly across Belleview Avenue from the Belleview Cemetery. The Southeast Bank entered into an option agreement with Memorials, Inc. whereby Southeast agreed to convey its portion of the cemetery property to Memorials, Inc., in the event that Memorials, Inc. is successful in obtaining a license to operate a cemetery on the property. The original option agreement has expired, however, it has been extended, and the option is still in effect. As a result of Belleview's financial troubles, and the apparent failure of Belleview to maintain its trust accounts, the Department of Banking and Finance brought an action in Circuit Court in Volusia County to appoint a receiver to manage the affairs of the cemetery. A receiver was initially appointed on July 16, 1976. By order entered August 17, 1976, Lawrence W. Hunt was substituted as the receiver. Hunt, in his capacity as receiver, has operated the Belleview Cemetery since that date. He has operated and maintained the cemetery including the parcels owned by Lakeview, Memorials, Inc., and Southeast Bank, as if it were a single entity. He has honored burial agreements without regard to which parcel the burial plot was located upon. Memorials, Inc., originally filed an application with the Department of Banking and Finance for authority to transfer a portion of the existing Belleview Cemetery to it. Memorials, Inc. was proposing to operate a cemetery on the portion of the Belleview Cemetery that it obtained through foreclosure. The application was filed under authority of Florida Statutes 559.33. The Comptroller entered an order approving the application for further processing subject to several conditions. Thereafter Lakeview Cemetery, Inc., and Lawrence W. Hunt, as receiver of Belleview, petitioned for a hearing, and the matter was forwarded to the office of the Division of Administrative Hearings. A hearing was scheduled, but prior to the hearing Memorials, Inc. withdrew its application. On August 14, 1978 Memorials, Inc. filed an application with the Department for authority to transfer an existing cemetery. This application was filed under authority of Florida Statutes 559.34 Lakeview, and Hunt as receiver again protested the application and the matter was forwarded to the Division of Administrative Hearings. The final hearing was conducted on October 12, 1978. Memorials, Inc., in effect, is seeking to transfer a portion of Belleview's license to it, so that it can operate a cemetery on the property which it obtained through foreclosure. Although the application in this regard is not clear, it appears that Memorials, Inc. is seeking authority only to operate a cemetery on that portion of the former Belleview property that it obtained through foreclosure. Memorials, Inc. is not, at this juncture, seeking authority to operate a cemetery on the property for which it has obtained an option from the Southeast Bank of New Smyrna. The individuals primarily responsible for the operation of Memorials, Inc., are Dorothy Levinson Rubin, Thomas B. Levinson, and H. T. Forrest. Each of these persons is of good moral character, has extensive experience in operating cemetery businesses, and is financially equipped to operate a cemetery business. The financial condition of Memorials, Inc. is such that it could responsibly operate a cemetery busi:ess. The interests of the public would not be served by granting Memorials, Inc. authority to operate a cemetery either solely on the property that it obtained through foreclosure, or upon both that property and the property upon which it has an option to purchase. The property which Memorials, Inc. presently owns, is located virtually in the middle of what has been Belleview Memorial Park. No natural boundaries separate Memorials, Inc.`s property from property presently owned by Lawrence Hunt as receiver, or property presently owned by the Lakeview Cemetery, Inc. The boundaries run directly through grave sites that are presently occupied, and would separate several family plots. The result of granting Memorials, Inc. the authority that it seeks, would be to make Memorials, Inc. responsible for maintaining one portion of a family plot, or of an individual grave site, while other entities (Hunt as receiver of Belleview or Lakeview) would be responsible for maintaining the result. A mausoleum is located virtually on the boundary line which separates the property owned by Memorials, Inc. from property owned by Lakeview. The mausoleum appears to lie on the Lakeview side of the boundary; however, it would not be possible to conduct any service at the mausoleum, or to read the inscriptions on it without standing on property owned by Memorials, Inc. It would be contrary to the public interest to require people to confront two entities to assure that the burial sites of their relatives are properly maintained. The Belleview Cemetery, including these portions owned by Memorials, Inc., Lawrence Hunt as receiver, and Lakeview, is irrigated through a single water system, and is presently maintained through a single maintenance facility. There is no room on the property owned by Memorials, Inc. to dig a well to provide a separate irrigation system for it. There is also no room to construct an adequate maintenance facility. The property constitutes only approximately four acres. The property has been totally platted for grave sites, and all but approximately six of the sites have been sold. Approximately fifty percent of the sites have been filled with interments. There is therefore no economic viability to operating the Memorials, Inc. property as a separate cemetery. Even if Memorials, Inc. operated its property as a cemetery in conjunction with the property for which it now has an option of purchase, there would still be no economic viability. While maintenance and irrigation facilities could be located on the option property, the option property and the property which Memorials, Inc., already owns are not contiguous. There would thus be a problem of operating an irrigation system, which would necessarily have to traverse the property owned by others, and of maintaining a non- contiguous cemetery. Furthermore, operating both properties as a cemetery would not solve the dilemma caused by the fact that several burial sites and family plots are traversed by boundary lines. Thomas B. Levinson, the President of Memorials, Inc. testified that Memorials, Inc. would not necessarily honor provisions of contracts of those who have purchased plots on the property that it now owns at the Belleview Cemetery respecting purchase of burial markers. Thus people who have already paid for markers might not receive them. This would do serious injury to these members of the public, and to other cemetery businesses. Memorials, Inc., has failed to establish any need for the operation of a separate cemetery in the Volusia County area. It does not appear that there is any shortage of competition in the area, and no population or death rate data was presented. Memorials, Inc. would not be unfairly prejudiced by a denial of its application. Memorials, Inc. obtained the subject property through a mortgage foreclosure. It was fully aware when it took the mortgage and when it foreclosed the mortgage that the property was a portion of an existing cemetery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the application of Memorials, Inc. d/b/a Daytona Memorial Park for authority to transfer a cemetery company be denied. RECOMMENDED this 4th day of December, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Morton M. Biegel, Esquire Suite 430 2121 Ponce de Leon Boulevard Coral Gables, Florida 33134 Franklyn J. Wollett, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 John B. Liebman, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A. P. O. Box 1171 Orlando, Florida 32802 John R. Tamm, Esquire and Robert E. Tamm, Esquire P. O. Drawer 2718 408 North Wild Olive Avenue Daytona Beach, Florida 32015
The Issue Should the application to organize a new cemetery company submitted by Trinity Memorial Gardens of Lakeland, Inc. (Trinity), be granted.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order granting Trinity's application to establish a new cemetery in Polk County, Florida. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Theresa G. Walsh, Esquire Office of the Comptroller 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Bruce Culpepper, Esquire AKERMAN, SENTERFITT and EIDSON, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32302-2555 Chris H. Bentley, Esquire Diane D. Tremor, P.A. John L. Wharton, Esquire Rose, Sundstrom and Bentley 2548 Blairstone Pines Drive Tallahassee, Florida 32301 William E. Williams, Esquire HUEY, GUILDAY AND TUCKER, P.A. 106 College Avenue Highpoint Center, Suite 900 Tallahassee, Florida 32302 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Petitioner is entitled to a license to establish and operate a cemetery in Palm Beach County, Florida.
Findings Of Fact On or about March 19, 1993, Mount Nebo of the Palm Beaches Memorial Park (Mount Nebo) filed an application for authority to organize a new cemetery company with the Department of Banking and Finance (Department). The application was denied on August 7, 1993. The sole reason given for the denial was that the Department had determined that there was not a "need" for the proposed cemetery. The location of the proposed cemetery is 850 South State Road No. 7, West Palm Beach, Palm Beach County, Florida. The community for determining need is the entire area within a 15 mile radius of the location of the proposed cemetery. The following existing cemeteries in Palm Beach County are located within the community of the proposed cemetery: NAME DISTANCE AVAILABLE SPACES Woodlawn Cemetery 8 5,000 Menorah Gardens 10.7 27,009 Glenwood Memorial Cemetery 10 0 Royal Palm Memorial Gardens 10.7 61,426 Evergreen Cemetery 8 2,000 Our Lady Queen of Peace 2 108,217 Hillcrest Memorial Park 9.5 24,138 Lake Worth Memory Garden 5.8 28,895 Pine Crest 10 1,970 I.A. Banks (f/k/a/ Lake Osborne) 10 3,162 Palm Beach Memorial Park 9.7 18,985 Eternal Light Memorial Gardens 10 47,105 Boyton Beach Memorial Park 11 5,500 Sara Simms Memorial Gardens 11 555 Delray Beach Municipal Cemetery 13 6,912 A niche is a space approximately one cubic foot in size where cremated remains are placed. Niches may be located on blank walls of masoleums and in niche walls or columbariums at the end of a masoleum. The available spaces for the cemeteries listed in Paragraph 3 above are a combination of niches and burial spaces. There are 340,874 total spaces available at the existing cemeteries within 15 miles of the proposed Mount Nebo location. The Department considers cemeteries within a twelve mile radius of the applicant cemetery to derive a majority of their sales from the same community as the applicant. This policy is based on the final order in Memorial Sunset Park v. Department of Banking and Finance, DOAH case number, 89-6856, Final Order entered October 18, 1990. Of the fifteen cemeteries that are located in the community of the proposed Mount Nebo cemetery, there are fourteen cemeteries that are within a twelve mile radius of the Mount Nebo location. Delray Beach Municipal Cemetery is located thirteen miles away. Based on the Department's policy, Delray Beach Municipal Cemetery does not derive a majority of its sales from the Mount Nebo community. Glenwood Memorial Cemetery is closed and, therefore, does not derive a majority of its sales within the community. Based on actual sales, the following facilities derive a majority of their sales from within the community: Palm Beach Memorial Park, Hillcrest Memorial Park, Lake Worth Memory Gardens, Menorah Gardens, Eternal Light and Royal Palm Memorial Gardens. Based on the Department's twelve-mile policy, the remaining cemeteries within a fifteen mile radius of the applicant derive the majority of their sales from within the community. When determining the number of burial spaces available at the existing facilities within the community which derive a majority of their sales from the community, the Department counts the total number of spaces available at the facility, including niches. The Department does not allow for the proration of burial spaces depending on the amount of space, land area, or population shared by a proposed facility and a existing facility. There are 333,962 spaces available at the existing cemeteries that derive a majority of their sales from the same community of the proposed Mount Nebo cemetery. In the next 30 years (January 1, 1994 through December 31, 2023) there will be 223,737 burials within a 15 mile radius of Mount Nebo's proposed cemetery. The number of burials includes cremations. Thus, there will be a need for 223,737 spaces during the thirty year period. The 333, 962 spaces available exceed the need for 223, 737 spaces by 110,225 spaces. There is no need for a new cemetery in the community of the proposed Mount Nebo cemetery. The Department does not and has not licensed a cemetery applicant based upon a specific religion or on a particular religious basis. Dr. Ira Sheskin, the expert witness for Mount Nebo, concluded that there is a need for a Jewish cemetery. He also concluded that there is a need for a nonsectarian cemetery. Based on his analysis he concluded there will be 167,000 spaces available during the next thirty years within the 15 mile radius of the proposed Mount Nebo location. In making his calculation, Dr. Sheskin used an overlapping circle theory, discounted the Catholic spaces available, and discounted the spaces which would be used by persons not residing in Palm Beach County. Dr. Sheskin's overlapping circle theory means that one considers only the area in which the Mount Nebo 15 mile circle overlaps with the 15 mile circle of an existing cemetery and prorates the number of spaces available at the existing cemetery based on the percentage of the overlap to the area within the 15 mile circle of the existing cemetery. In discounting the Catholic spaces at Our Lady Queen of Peace, Dr. Sheskin assumed that of the general population 31.1 percent are Catholic, resulting in 67,345 Catholics being buried within the 15 mile circle of Mount Nebo. There are 99,560 spaces available at Our Lady Queen of Peace, which means that 32,215 spaces will still be available at Our Lady Queen of Peace at the end of the thirty year period. He further discounted the spaces available based on his assumption that 20 percent of the persons who will be buried within the 15 mile circle will not be residents of Palm Beach County. Menorah Gardens' expert witness, Dr. Ronald Schultz, applying a modified overlapping circle theory, calculated the spaces available for the thirty year period to be 294,000. Dr. Schultz's theory considers the geography and the population of the overlapping areas. He considered this number to be an adequate supply. The methodologies employed by Dr. Sheskin and Dr. Schultz fail to comport with existing law, as discussed in the conclusions of law, and are rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for a license to establish a new cemetery in Palm Beach County. DONE AND ENTERED this 14th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5390 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate to the facts actually found. Paragraph 3: Rejected as constituting a conclusion of law. Paragraph 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Rejected as not supported by the greater weight of the evidence. Paragraphs 7-11: Rejected as not supported by the greater weight of the evidence. Paragraph 12: Rejected as not supported by the greater weight of the evidence. Additionally, it is immaterial since the granting of a license is not based on a religious basis. Paragraph 13: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted to the extent it refers to the 15 facilities listed in Petitioner's Exhibit "C" but not to the exent that if infers that 340,874 spaces are available in the facilities in the community that derive a majority of their sales from the community. Paragraph 3: The first two lines are accepted. The last two lines are rejected as constituting a conclusion of law. Intervenor Menorah Gardens' Proposed Findings of Fact Paragraph 1-2: Accepted, except the date of the notice of denial which is August 7, 1993. Paragraph 3: Rejected as recitation of the statute. Paragraph 4: The first sentence is accepted in substance. The last sentence is rejected as constituting a conclusion of law. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary. Paragraph 8: Accepted in substance. Paragraphs 9-10: Rejected as unnecessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as recitation of testimony. Paragraphs 13-16: Rejected as subordinate to the facts actually found. Paragraph 17: Rejected as constituting a conclusion of law. Paragraph 18: Rejected as subordinate to the facts actually found. Paragraph 19: Rejected as not supported by the greater weight of the evidence as it relates to past need analyses other than the application at issue in Memorial Sunset Park, Inc. v. Department of Banking and Finance and Pershing Industries. Paragraphs 20-22: Rejected as subordinate to the facts actually found. Paragraph 23: Rejected as recitation of the rule. Paragraph 24: Rejected as constituting a conclusion of law. Paragraph 25: Accepted in substance. Paragraphs 26-27: Rejected as constituting conclusions of law. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts actually found. Paragraph 31: Rejected as constituting a conclusion of law. Paragraphs 32-40: Accepted in substance. Paragraphs 41-43: Accepted in substance. Paragraph 44: Rejected as constituting argument. Paragraphs 45-50: Rejected as subordinate to the facts actually found. Paragraph 51: Rejected as not supported by the greater weight of the evidence. Mr. Grosmaire testified that the Department considers facilities within a twelve mile radius of the applicant to derive the majority of their sales from the community. Delray Beach Municipal Cemetery is not within the twelve-mile radius of the applicant. Paragraph 52: Accepted in substance as to the Department but rejected as to Dr. Schultz. Paragraph 53: Accepted in substance. Paragraph 54: Rejected as recitation of testimony. Paragraph 55: Rejected as constituting argument. Paragraph 56: Rejected as subordinate to the facts actually found. Paragraph 57: Rejected as constituting a conclusion of law. Paragraphs 58-60: Rejected as subordinate to the facts actually found. Paragraph 61: Rejected as constituting argument. Paragraphs 62-63: Rejected as subordinate to the facts actually found. Paragraph 64: Rejected as constituting argument. Paragraphs 65-66: Rejected as subordinate to the facts actually found. Paragraphs 67-69: Rejected as recitation of testimony. Paragraph 70: Accepted in substance. Paragraph 71: Rejected as constituting argument. Paragraphs 72-74: Rejected as subordinate to the facts actually found. Paragraph 75: Accepted in substance. Paragraph 76: Rejected as constituting a conclusion of law. Paragraph 77-85: Rejected as subordinate to the facts actually found. Intervenor Eternal Light's Proposed Findings of Fact Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as not supported by the greater weight of the evidence. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraph 5: Rejected as not supported by the greater weight of the evidence. Paragraph 5 (second paragraph): Rejected as not supported by the greater weight of the evidence. Paragraph 6: Rejected as subordinate to the facts actually found. COPIES FURNISHED: William M. Furlow, Esquire Post Office Box 1877 Tallahassee, Florida 32302-1877 Bridget L. Ryan, Esquire Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Douglas L. Stowell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Alberto R. Cardenas, Esquire Ben J. Fernandez, Esquire 201 South Biscayne Boulevard Miami, Florida 33131 Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Room 1302 The Capitol Tallahassee, Florida 32399-0350
