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.
Recommendation 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 =================================================================
The Issue Whether Respondent, Gibraltar Mausoleum Corporation, has met the requirements of Chapter 497, Florida Statutes (1991), and the applicable rules to acquire control of an existing cemetery, Hillcrest Cemetery, Inc. d/b/a Palms Memorial Park.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of licensing and regulating cemetery companies in the State of Florida pursuant to Chapter 497, Florida Statutes. David V. Toale owns burial rights in Palms Memorial Park. Venice Memorial Gardens, Inc. is an existing cemetery company located in Sarasota County, Florida which owns, controls and is licensed to operate the cemetery known as Venice Memorial Gardens. Brown, Edwards, Toale Funeral Home, Inc. d/b/a Manatee Markers and Cemetery Brokers, is a funeral home and cemetery broker located in Manatee County, Florida that owns burial rights in Palms Memorial Park. Toale Brothers, Inc. is a funeral home with locations in Sarasota County, Florida and Manatee County, Florida. Brown and Sons Funeral Home, Inc. is a funeral home located in Manatee County, Florida. Hillcrest, a Florida Corporation, is an existing cemetery company which owns, controls and is licensed to operate a perpetual care cemetery known as Palms Memorial Park located in Sarasota County, Florida. Arbor Capital, Inc., a Delaware corporation, is the owner and parent company of Hillcrest by virtue of its ownership of all outstanding stock of Hillcrest. A second company also known as Arbor Capital, Inc., a Ontario, Canada corporation, is the parent and owner of Arbor Capital, Inc., the Delaware corporation. Gibraltar is an Indiana corporation which: (a) owns and operates cemeteries; (b) owns and operates funeral homes; and (c) constructs funeral homes and mausoleums. Gibraltar has been qualified to do business in the State of Florida since October 14, 1988, and at the time it proposed to purchase the assets of Hillcrest, Gibraltar was an existing legal entity. On July 31, 1992, Gibraltar filed a Form DBF-F-35, Application For Authority To Acquire Control Of An Existing Cemetery Company (Application), with the Department for authority to purchase the assets of Hillcrest Cemetery, an existing cemetery company, and thereby gain ownership and control of the cemetery known as Palms Memorial Park. Several documents were attached to the Application, including the Agreement which had been executed by Hillcrest Cemetery, Inc. as Seller, Arbor Capital, Inc. as Shareholder for Hillcrest Cemetery, Inc., Arbor Capital Inc., an Ontario Corporation, and Gibraltar Mausoleum Corporation, as the Buyer. By this Agreement, Gibraltar is purchasing the assets of Hillcrest which includes all of the cemetery property known as Palms Memorial Park and assumes all liabilities for pre-need contracts and pre-sold merchandise. Gibraltar intends to keep all trust funds in accordance with state law and regulations and shall insure that Palms Memorial Park is maintained perpetually. The sales price of the assets and certain other sales-related figures were blacked-out in the copy of the Agreement submitted by Gibraltar with its Application to the Department. Gibraltar redacted these figures because, being a private company, it sought to keep these figures from the public record. However, in any event, a copy of the Agreement without any figures being redacted was received as evidence in this case. By letter dated August 6, 1992, the Department advised Gibraltar that certain required documents had not been submitted with the Application and that Question 4 of the Application was incomplete. It is the Department's position that it has authority to review and approve such applications without the benefit of the sales price and other sales-related figures, and had done so in the past. Therefore, the Department did not require Gibraltar to furnish the figures that had been redacted in the Agreement prior to tentative approval of its Application. Also, it is the Department's position that had the redacted figures been available before the tentative approval, the Application would still have been approved. Subsequently, Gibraltar furnished the Department the information and documents requested in the Department's letter of August 6, 1992, which brought the Application in compliance with Rule 3D-30.017, Florida Administrative Code. By letter dated October 16, 1992, the Department notified Gibraltar that the Department had tentatively approved the Application for the assets purchase of Hillcrest by Gibraltar subject to the notice of intent being advertised in the Florida Administrative Weekly. Tentative approval of the Application was the result of an investigation by the Department wherein it was determined that Gibraltar had met the requirements of Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar. The Department did not review Gibraltar's Application under the provisions of Sections 497.006 or 497.027, Florida Statutes. The Notice Of Intent To Approve A Cemetery Application was advertised in the Florida Administrative Weekly, Volume 18, Number 40, October 2, 1992. However, the Department advertised a revised Notice Of Intent To Approve A Cemetery Application in the Florida Administrative Weekly, Volume 18, Number 49, December 4, 1992, because the notice in the first advertisement was not clear as to which entity was the seller and which entity was the purchaser. The Department did not give any other form of notice of its intent to approve the Application. Specifically, the Department did not give direct notice to any individual or company that owned burial rights in Palms Memorial Park. Form DBF-F-35, incorporated by reference in Rule 3D-30.017, Florida Administrative Code, is the application form required under Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, to be filed by an applicant seeking to acquire control of an existing cemetery by acquiring the stock or purchasing the assets of the existing cemetery company that owns, controls and is licensed to operate the existing cemetery. Form DBF-F-35, is also required under Section 497.008, Florida Statutes, when there is an application for internal change of control among stockholders of an existing cemetery company that owns, controls and is licensed to operate an existing cemetery. The Department considers Section 497.007, Florida Statutes, and Rule 3D-30.017, Florida Administrative Code, as its authority for allowing external change of control of an existing cemetery where either the stock is acquired or the assets purchased of an existing cemetery company, that owns, controls and is licensed to operate the existing cemetery. The Petitioners, on the other hand, consider Section 497.006(2) and (3), Florida Statutes, as the Department's authority for such external change of control of an existing cemetery where only the assets of an existing cemetery company that owns, controls and is licensed to operate the existing cemetery are being acquired. The Department, however, considers Section 497.006(2) and (3), Florida Statutes, as applying to the establishment of a cemetery company for the purpose of being licensed to operate an entirely new cemetery if the Department establishes a need for a new cemetery in the community. In situations such as the instant case, the Department reclaims the licence from the cemetery company previously exercising control over the existing cemetery and issues a new licence in the name of the cemetery company gaining control of the existing cemetery. Petitioners contend that Section 497.027(2), Florida Statutes, applies to Gibraltar's Application. However, the Department has interpreted that subsection as applying only in situations where the cemetery company or other purchasing entity is attempting to use the land currently dedicated for cemetery use for something other than as a cemetery. There was no evidence that Gibraltar intended to use Palms Memorial Park for anything other than as a cemetery. Since late 1979, the Department has been approving the external change of control of an existing cemetery where the assets of the existing cemetery company, that owns, controls and is licensed to operate the existing cemetery, are being purchased. Until about five years ago, the acquisition of an existing cemetery was accomplished by purchasing the assets of the existing cemetery company owning, controlling and being licensed to operate the existing cemetery, rather than acquiring the existing cemetery company's stock. Since October 1, 1989, the Department has approved 16 asset purchases and 27 stock purchases of existing cemetery companies, that owned, controlled and were licensed to operate existing cemeteries, under Section 497.007, Florida Statutes. Ten of the 27 stock purchases were a lump sale to one corporation. There was no evidence that the Department had experienced any regulatory problems in approving the external change of control of existing cemeteries where there was an asset acquisition of the existing cemetery company that owned, controlled and was licensed to operate the existing cemetery. There was no evidence that the external change of control of an existing cemetery where there was an asset acquisition of the existing cemetery company, that owned, controlled and was licensed to operate the existing cemetery, resulted in any type of negative impact on the public. Gibraltar currently owns and operates 14 of the approximately 164 cemeteries in the state of Florida and 51 cemeteries throughout the United States. Gibraltar is one of the larger companies owning cemeteries and funeral homes in the United States. Gibraltar's corporate structure includes a cemetery division, funeral division and a construction division. Gibraltar is a closely held, family-owned company whose stockholders have worked in the cemetery business their entire careers. None of the stockholders have ever been subject to a criminal prosecution or criminal enforcement action, or had a license revoked, denied or suspended. Gibraltar intends to have the personnel and management that is presently assigned to Manasota Memorial Park to manage and operate Palms Memorial Park while continuing to manage and operate Manasota Memorial Park. Gibraltar has the necessary experience to operate Palms Memorial Park. The Department examined Gibraltar's financial statement which was attached to the application and reviewed the financial statements of the shareholders which were included in the application. Gibraltar is a financially solvent company with a net worth of over $34,000,000.00. The purchase of the assets of Hillcrest, as proposed in the Application and set out in the Agreement, will be a cash transaction requiring no mortgages or other encumbrances on the property. Gibraltar has the financial responsibility necessary to purchase and operate Palms Memorial Park. There are seven licensed cemeteries in the adjacent Florida counties of Manatee and Sarasota. Gibraltar owns and is licensed to operate three of those cemeteries. They are: Manasota Memorial Park, Inc. and Mansion Memorial Park, Inc., located in Manatee County, Florida, and Gulf Pines Memorial Park, Inc. located in Sarasota County, Florida. On December 17, 1988, Manasota Memorial Park, Inc. entered into a Joint Settlement Stipulation For Consent Order with the State of Florida, Department of Insurance wherein, among other things, Manasota Memorial Park, Inc. agreed to pay an administrative fine of $7,500.00 but did not admit to any violation of law. On January 11, 1989, the Insurance Commissioner signed a Consent Order incorporating the terms of the Joint Settlement Stipulation. The Attorney General's office of the State of Minnesota commenced an investigation into Gibraltar's business practices in Minnesota. Gibraltar agreed to settle this matter for approximately $75,0000.00 but did not admit to any violation of law. Approximately two years later Gibraltar sold its business in Minnesota and no longer has any business interest in Minnesota. Neither the settlement with the State of Minnesota nor the settlement with the State of Florida, Department of Insurance was disclosed in Question 16 of Gibraltar's Application which provides in pertinent part as follows: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, denied , or otherwise act [sic] against? At the time of the tentative approval of the Application, the Department had only checked for consumer complaints filed against Hillcrest. Subsequently, the Department checked for administrative or regulatory actions that had been filed against Gibraltar. There were no administrative or regulatory actions pending (open cases) against Gibraltar. No enforcement actions had been filed against Gibraltar by the Department's Bureau of Examinations. Since the review of Gibraltar's trust accounts is an ongoing process by the Department, the Department's review of the Application did not include a review of Gibraltar's trust accounts per se. However, the Department relied on a review of all administrative actions to determine if any administrative action had been taken against Gibraltar for trust account deficits. There had been no administrative action taken against Gibraltar for trust account deficits. From January, 1988 through December 1992, there were 139 of the 667 consumer complaints or inquires filed with the Department with regard to cemetery companies filed against Gibraltar or its subsidiaries. The Department found no violations, had no jurisdiction, took no action or received inquires or information requests in 110 of the 139 instances. During this same period, Gibraltar entered into 70,000 contracts with customers in Florida. Gibraltar enforces ethical sales policies and has a system designed to resolve customer complaints. There was no competent substantial evidence to show that Gibraltar's salespersons used "high pressure" sales tactics. There was no evidence that the Department had ever taken any action against a license of a cemetery owned by Gibraltar or one of its subsidiaries. There was no competent substantial evidence to show that Gibraltar's acquisition of Palms Memorial Park would adversely affect competition in the local market of Sarasota and Manatee, County. It is the Department's position that competition is not an issue to be considered when reviewing an application for transfer of control of an ongoing cemetery pursuant to Section 470.007, Florida Statutes. There is competent substantial evidence to show that Gibraltar has met the requirements of Section 497.007, Florida Statutes, and Rule 3d-30.017, Florida Administrative Code, including, but not limited to, the issues of financial responsibility, experience and character of Gibraltar.
Conclusions Petitioners' exception "B". Conclusions of Law omitted by Hearing Officer are hereby rejected. Each of these proposed legal conclusions are legally irrelevant to the issues involved in this case. Petitioners' contend that: Proper notices were not given by the Department. The Department specifically rejects this legal conclusion. The Department complied with Section 497.091, Florida Statutes (1991) in publishing its notice. Petitioners' allegations that additional information was necessary and that due process required additional circulation of the notices is rejected. The Department's interpretation of Section 497.091, Florida Statutes (1991) is a permissible one, and thus, Petitioners exception is hereby rejected. & 3. Petitioner's arguments that the Hearing Officer should have reached a legal conclusion as to whether a Florida cemetery company may own more than one cemetery and whether a Florida cemetery company may engage in activities outside the ones permitted under Section 497.033, Florida Statutes are legally irrelevant in this case and thus, are rejected. Petitioner's proposed legal conclusion as to whether the Department had the ability to approve either a change of the settlor and/or the transfer of irrevocable care and maintenance trust funds, with or without the consent of the affected beneficiaries/owners of burial rights is legally irrelevant in this case and, thus, is rejected. Petitioners' proposed conclusion of law as to whether the Department may issue a license under 497.007, Florida Statutes has been ruled on throughout the Hearing Officer's Conclusions of Law. Further, see ruling on exceptions to paragraph (21) of the Findings of Fact, infra. 7. & 8. Petitioners' Proposed Conclusions of Law numbered 6 and 7 as to whether a Florida cemetery company has a continuing obligation to care and maintain the perpetual care cemetery and whether perpetual care cemetery land may be transferred without the approval of the affected owners of burial rights are legally irrelevant to this proceeding. Petitioners proposed conclusion of law numbered eight as to whether Section 497.027, Florida Statutes (1991) is the exclusive authority for the sale of Florida perpetual care cemetery lands was previously ruled on within the Hearing Officer's conclusions of law. Further, the Department rejects this proposed legal conclusion. See ruling on exception to paragraph (21) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 9 as to whether the Department was required by law to consider economic matters, matters of competition, and/or the impact upon the public, in investigating the application was previously ruled upon by the Hearing Officer within his Recommended Order. Further, the Department rejects this proposed conclusion. See ruling on exception to paragraph (17) of the findings of fact, infra. Petitioners' Proposed Conclusion of Law number 10 as to whether the Department followed Rule 3D-30.017, Florida Administrative Code in approving the sale of the perpetual care cemetery land know as Palms Memorial Park was previously ruled upon by the Hearing Officer in his Recommended Order. The Department rejects this proposed legal conclusion. Further, see ruling on exception to paragraph (21) of the findings of fact infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioners and allowing Gibraltar to purchase the assets of Hillcrest as detailed in the Agreement and be issued a license to operate Palms Memorial Park. RECOMMENDED this day 25th of January, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 25th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6635, 92-6884, 92-6885 AND 92-7886 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioners, Venice Memorial Gardens, Inc., Toale Brothers Inc., and Brown and Sons Funeral Home, Inc.'s Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2-7(1,7,8,9,10 & 12, respectively); 8,9 & 11(28);12(10);19(35); 20(36); 21(35); 24(30); 27- 30(37,38,41 & 28, respectively);32(3); 36(2); 37(19); 39 & 41(4); 42(19); 43(5); 45(6); 46(1); 47(11); 48(20); 49(12); 50(13); 51(25); 55-56(20); 60(12); 61(17); 76-79(18); and 80(19). Proposed finding of fact 1 is covered in the Statement of The Issue. 3. Proposed findings of fact 10, 13 - 17, 22, 23, 25, 31, 33, 34, 35, 38, 40, 44, 57, and 63 - 75 are neither material nor relevant. Proposed findings of fact 52, 53, 54, 58, 59 and 62 are legal opinions and should be covered in the Conclusions of Law. Proposed findings of fact 18 and 26 are not supported by competent substantial evidence in the record. Petitioners, David V. Toale and Brown, Edwards, Toale Funeral Home, Inc.'s Proposed Findings of Fact: 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: A.1-A.6(18,19, otherwise neither material nor relevant); B.7-B.10(7,12, otherwise neither material nor relevant); C.11-C.40(10,12,13,28,30,32,35,36,37, otherwise neither material nor relevant, cumulative or not supported by competent evidence in the record)); D.41-D.44(7,8,12 & 13, otherwise neither material nor relevant, cumulative, subordinate or unnecessary); E.45-E.50(3, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); F.51-F.53(2,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); G.54-G.57(4,19, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); H.58-H.60(5, otherwise neither material nor relevant); I.61-I.80(11,15,17,20,21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); J.81-J.85(21, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); K.86- K.91(20,35, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); L.92-K.93(17,21); M.94-M.100(8,12,17, otherwise neither material nor relevant); M.101-M.103(11,12,13, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); N.104-M.107(21, otherwise neither material nor relevant, cumulative, or unnecessary); O.108- O.113 (29,30,36,37,38,39,40 & 41, otherwise neither material nor relevant or not supported by competent substantial evidence in the record); and P.114-P.120(35, otherwise neither material nor relevant, cumulative, unnecessary or not supported by competent substantial evidence in the record). Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(12); 2(7); 3(21); 4- 6(23-25); 7(12); 9(24); 10(23); 11(20); 12-14(21); 15-16(25); 17(26); and 18(27). Proposed findings of fact 8 and 19 are neither material nor relevant. Respondent, Gibraltar's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2(21); 3(23- 25); 4(17); 5(14,16); 6(17); 7(18); 8(21,22); 9(21); 10(25); 11(25-27); 12(12); 14(12); 16(21); 17-19(39-41); 20(41); 21(41); 23(29,43); 24-26(32-34); 27(28); 28(31); 29(13,15); and 30-33(44,45). Proposed findings of fact 13, 15 and 22 are neither material nor relevant. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Edwin R. Hudson, Esquire Henry & Buchanan, P. A. 117 South Gadsden Street Tallahassee, Florida 32301 James R. Brewster, Esquire Suite 203, The Walker Building 547 North Monroe Street Tallahassee, Florida 32301 Bridget L. Ryan Assistant General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Harry R. Detwiler, Jr., Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302
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
Findings Of Fact James E. Collison is a licensed embalmer and funeral director, and Collison Memorial Chapel, Ltd., is a licensed funeral home holding licenses issued by the Board of Funeral Directors and Embalmers. Orange County Memorial Society (OCMS) is a nonprofit corporation. OCMS exists for the purpose for providing information and assistance to its members on low-cost funeral arrangements. OCMS has approximately 750 members and is funded through their small initial membership or transfer fee. Thomas E. White, who is employed full-time as an engineer by Stromberg Carlson was president of OCMS at all times relevant to this complaint. His wife, Helen, was secretary of this organization. At the time White assumed the presidency of OCMS, OCMS had existing arrangements with two local funeral homes. Upon joining, members were assigned to one or the other of these establishments, based upon the members' geographical residential location. Both the establishments provided the same services at essentially the same prices. Prices for various services from these homes had been made available to the members of OCMS. Mr. White was concerned about the geographic assignment of OCMS members and desired to alter this arrangement and allow members to choose the funeral home which they desired. In approximately August of 1976, James Collison contacted Mr. Harris, the attorney for OCMS, one of the original incorporators, and a former president of the organization. Collison advised Harris that he desired to participate with OCMS in providing services to its members. Mr. Harris wrote Mr. White, who eventually contacted Collison to discuss Collison Memorial Chapel's participation. In this regard, Collison provided Mr. White a list of funeral services which Collison Memorial Chapel could provide together with cost in a letter dated September 4, 1976. Mr. White and another member of the Board visited with Collison and inspected Collison Memorial Chapel. Thereafter Mr. White presented Collison's proposal to the Board of Directors of OCMS. Collison's offer was accepted, and this fact was subsequently communicated to Collison by White. At this time, Collison was advised that OCMS would advise its members of Collison Memorial Chapel's participation by letter when the notice of the organization's annual membership meeting was mailed. An earlier mailing could not be made by OCMS due to a lack of funds. Collison desired to make Collison Memorial Chapel's participation immediately known to the membership of OCMS, and offered to White to pay for the additional mailing. Mr. White accepted this offer, feeling that this was in the best interest of the membership of OCMS and permitted earlier implementation of his plan to permit members to choose the funeral home with which they desired to make their arrangements. The mailing was handled solely by White and his wife, and at all times, OCMS, through its president, maintained total control of the content of the materials sent to its members. This mailing contained a letter from Mr. White to the members, a comparative list of services and prices offered by the three participating funeral homes, a stamped, self-addressed envelope to Collison Memorial Chapel, and a form indicating that members desired to change his or her selection of a funeral home to Collison Memorial Chapel. The letter to the members was composed by Mr. White. The comparison of services and prices was prepared by Collison at Mr. White's request. The change form was prepared by Collison; however, both Mr. and Mrs. White stated that they had made some minor changes in its format after they received Collison's draft copy. White, in response to the specific question regarding why the form had not been prepared to permit a member to change between the two other participating funeral homes, stated that he had not mailed the form in that format because he did not believe any of the members would elect to change their membership among the two original participating homes. The fact that Collison obviously wanted communicated to the OCMS members was the fact that his funeral home was participating with OCMS because the prices which were quoted to OCMS members were the same being advertised to the public generally. White, as president of OCMS, desired to implement his project of permitting freedom of selection among members of OCMS, and to advise members that Collison's funeral home was now a participating home. Collison's offer was a means to both White's and Collison's objections. The Whites had the material printed, prepared the mailing, and sent Collison a statement of cost of the mailing. Collison paid these costs in the amount of $191.87 directly to OCMS. As a result of this mailing, approximately thirty (30) of the 750 members elected to change their arrangements in favor of Collison Memorial Chapel, Ltd. Several others elected to make other changes by contacting White and having new forms sent to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against James E. Collison and Collison Memorial Chapel, Ltd. be dismissed. DONE and ORDERED this 1st day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: W. Thomas Lovett, Esquire Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801 Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202 Mr. R. C. Blanton, Coordinator Funeral Directors and Embalmers Suite 208, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
