The Issue The parties would not stipulate to any of the facts. The following factual issues were presented in this case: Whether the Petitioner possesses the requisite ability, experience, and financial stability to operate a cemetery? Whether the Petitioner meets the statutory criteria to be licensed? Whether the Petitioner's application is substantially complete? Whether existing facilities meet the requisite adequacy standard? Whether the trust funds of existing facilities are solvent? Whether the statistical data supports issuance of an additional license (need), and Notwithstanding a lack of need, should the agency issue any additional licenses to foster needed competition? The following legal issues were raised during the hearing: Are the terms of Chapter 85-202, Laws of Florida, applicable to this application? May the Department waive the need criteria of Section 497.006(3), Florida Statutes and issue licenses to promote competition? Should cemetery spaces which are not subject to the act pursuant to Section 497.003(1), Florida Statutes be considered in computing need? Should acreage which is owned by a cemetery company but undedicated to cemetery use be included in computation of need? Legal conclusions on these issues are summarized at the beginning of this Order because they impact consideration of the facts. It is concluded that Chapter 85-202, Laws of Florida, should be applied to the application as the law in effect at the time of hearing and at the time the agency's decision is made. It is also concluded that Section 497.003, Florida Statutes, excepts from the application of Chapter 497 and all rules adopted pursuant to Chapter 497 certain cemeteries and it is inconsistent, therefore, to include spaces in these excepted cemeteries in computing need. In circumstances in which no need exists, the department may approve an application upon proof that an additional cemetery or cemeteries are needed to promote competition pursuant to Section 497.006(3) Florida Statutes. Acreage owned but not dedicated to cemetery purposes should not be computed in need statistics because it is not subject to agency control until its dedication. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to the Recommended Order. FINDINGS OF FACT_ The applicant for licensure to operate a cemetery is Memory Park, Inc., a Florida corporation. The operating officers of the corporation are Bill Williams, Annette Williams, his wife, and Bert Brown. (Petitioner's Exhibit 3) All three have very significant business experience and have operated state licensed businesses without any complaint. (Petitioner's Exhibit 5, 6 & 7) The applicant's principals have indicated that, as required by law, they would hire an experienced cemetery manager for the period required. The applicant possesses sufficient operating capital assets to insure its financial stability. See Petitioner's Exhibit 3 and 4.) The Petitioner's application was substantially complete: setting forth the proposed cemetery's exact location, paying all fees required, and demonstrating that the applicant is a legal entity. (See documents filed with the application and staff study.) No evidence was received that any existing licensed cemeteries failed to meet adequacy standards. Only one other licensed cemetery, Serenity Gardens, exists in the service area which is a 15 mile circle drawn around the proposed site. This licensed cemetery meets the existing statutory requirements. Projections of population, deaths and burials in the service-area were introduced and received as Hearing Officer Exhibit 1, which also includes a map of the service area and a listing of all cemeteries in the service area. (The accompanying data on acreage and spaces of unlicensed cemeteries was not admitted.) Hearing officer Exhibit 1 shows that there will be 16,182 deaths in the area, and 13,095 burials in the area after cremations and "ship outs" through 2012. Need is computed on a 30 year projection. The existing licensed facility has 18 acres dedicated to cemetery purposes and 15 adjoining acres which are not dedicated. The dedicated acreage has 15,972 unused spaces which includes spaces sold but with no one yet buried in them. The undedicated acreage has 14,954 unused spaces as currently planned. (Hearing Officer Exhibit 1) However, the company could dispose of this undedicated property and use it for purposes without any interference, regulation or control by the agency. There would be a total of 13,095 burials in the 30 years between 1983 and 2012. This is less than the available sites currently in the dedicated acreage at the one licensed cemetery (15,972). There is no need. (Hearing Officer Exhibit 1) Serenity Gardens has cleaned it fences, planned to provide additional services, employed new personnel, and has begun actively advertising since the applicant started the application process. Serenity Gardens had not done so in the past.
Findings Of Fact Under the provisions of Chapter 497, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty to issue licenses, as set forth in Section 497.006, Florida Statutes. On January 2, 1985, Petitioner, a Florida corporation, submitted an Application to Organize a New Cemetery Company (hereinafter First Application) to operate a cemetery in Santa Rosa County, Florida, and paid a $600 application fee. Thereafter, on January 11, 1985, the Department caused to be published a Notice of Cemetery Application with regard to Petitioner in the Florida Administrative Weekly, Vol. 11, No. 2. Said Notice indicated that any interested person could request a hearing within a stated time period. On January 24, 1985, the Department received a petition for hearing from a licensed cemetery, Serenity Gardens of Santa Rosa, Inc. (hereinafter Protestant), which objected to granting Petitioner's First Application for a cemetery license and requested a public hearing be held. The Department granted Protestant's request for a hearing and on February 25, 1985, the Department forwarded said petition to the Division of Administrative Hearings and requested that a Hearing Officer be appointed to hear this matter on behalf of the Department. On March 4, 1985, Hearing Officer Stephen F. Dean was assigned to hear this cause. Thereafter, Petitioner submitted a second Application for Authority to Organize a New Cemetery Company (hereinafter Second Application) on August 23, 1985, which was substantially complete on that date. However, no additional application fees have been paid. An administrative hearing based upon the Second Application was held on August 28-29, 1985, in Pensacola, Florida, and on October 17, lS85, the Hearing Officer entered his Recommended Order to which no exceptions have been filed. In the Recommended Order, the Hearing Officer entered a specific finding of fact that the operating officers of Petitioner are Arnette Williams, Bill Williams and Bert Brown; that all three have very significant business experience and have operated other state licensed businesses without any complaint; and that Petitioner's principals have indicated that they would hire an experienced cemetery manager. The Department accepts this finding of fact. In the Recommended Order, the Hearing Officer entered a specific finding of fact that Petitioner possesses sufficient operating capital assets to insure its financial stability. The Department accepts this finding of fact. In Findings of Fact number three, the Hearing Officer concluded that the Petitioner had paid "all fees required." The Department respectfully takes exception to this factual finding because, subsequent to the filing of the First Application and prior to the filing of the Second Application, Chapter 85-202, Laws of Florida, came into effect and amended Section 494.006(2), Florida Statutes, to increase the application fee from $600 to $5,000. However, as noted in paragraph 2 herein, only a S600 application fee has been paid to date. The Hearing Officer further found that the criteria of the new law was to be applied to the application. The proposed cemetery site contains approximately 30 contiguous acres. The Hearing Officer in his Recommended Order entered a specific finding to the effect that Protestant is the only other licensed cemetery that exists in the service area which is a 15 mile circle drawn around the proposed site. The Department accepts this finding and also finds that the trust funds of that cemetery are solvent. Projections of population, deaths and burials in the service area together with a map of the service area and a listing of all cemeteries in the service area were introduced and received at the hearing. (The accompanying data on acreage and spaces of unlicensed cemeteries was not admitted into evidence by the Hearing Officer.) In paragraph 5, the Hearing Officer further concluded, "Hearing Officer Exhibit 1 shows that there will be 16,182 deaths in the area, and 13,095 burials in the area after cremations and 'ship outs' through [the year] 2012. Need is computed on a 30 year projection." The Department respectfully notes that the projected deaths and burials referred to by the Hearing Officer are those of Santa Rosa County. Hearing Officer Exhibit 1 shows that there are 9,039 projected deaths in the service area and 7,314 projected burials through 2012. The Hearing Officer in paragraph 6 of the Findings of Fact concluded: The existing licensed facility has 18 acres dedicated to cemetery purposes and 15 adjoining acres which are not dedicated. The dedicated acreage has 15,972 unused spaces which includes spaces sold but with no one yet buried in them. The undedicated acreage has 14,954 unused spaces as currently planned. (Hearing Officer Exhibit 1). However, the company could dispose of the] undedicated property and use it for purposes without any interference, regulation or control by the agency. A review of the evidence shows that the Annual Report of Cemetery of Protestant represents that said cemetery has 33 total acres with only 18 acres noted as being dedicated. Accordingly, there is a basis for the Hearing Officer's finding. However, the plat of Protestant with regard to the remaining 15 acres has dedicated such 15 acres for cemetery use and the plat thereof has been approved by and filed with the local county officials. This being the case, as discussed in paragraph 17b, it is a matter of state law whether Protestant has effectuated a proper dedication. However, the Department does agree with the Hearing Officer's statement as to the number of unused space in the respective portions of Protestant. The total projected burials in the service area is less than the unused spaces in the 18 acre area of Protestant and is less than the unused spaces in the total acreage of Protestant. Accordingly, there is no need for a cemetery in the service area. Petitioner has already had a positive impact on competition in the service area, because the Hearing Officer in his Recommended Order entered a specific finding to the effect that Protestant has cleaned its fences, planned to provide additional services, employed new personnel and has begun actively advertising since the application process was started. Protestant had not done so in the past. The Department accepts this finding.
Recommendation Having found the applicants qualified and that the proposed facility has already fostered, promoted and encouraged competition, it is recommended the license be issued although there is no need for the service area. DONE AND ORDERED this 17th day of October, 1985 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1985. APPENDIX A Only one set of "Proposed Findings" was submitted. These unpaginated, unnumbered proposals submitted by Petitioner were read and considered. In the entire eight pages there is only one finding of fact. In the first paragraph of the portion addressing Competition, the proposal states, "Serenity Gardens is the only licensed perpetual care facility in the community where the Petitioner has proposed its cemetery." This was addressed in paragraph 4 of the Recommended Order's Findings. The remaining verbage in the proposal is argument and, therefore, is rejected. COPIES FURNISHED: W. Douglas Moody, Jr. 119 N. Monroe Street Tallahassee, FL 32301 Alan H. Rosenbloum 417 Canterbury Lane Gulf Breeze, FL 32561 Paul C. Stadler The Capitol Suite 1302 Tallahassee, FL 32301 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, FL 32301 Charles Stutts General Counsel Plaza Level The Capitol Tallahassee, FL 32301 ================================================================ =
Findings Of Fact Based on stipulations of the parties and on the testimony and exhibits presented at the hearing, I make the following findings of fact: Findings based on stipulations According to current records of the Department of Insurance, the Petitioner currently possesses a Certificate of Authority to do business in the State of Florida as a life insurer. Family Services Life Insurance Company Policy Form No. 01285-NV and Certificate No. 01285-NV-3 constitute out-of- state group forms filed and approved in the State of Nevada. The Petitioner filed its request for approval of its out-of-state group trust plan and certificate pursuant to section 627.5515(2), Fla. Stat. on September 29, 1986. The Department denied Petitioner's filing March 2, 1987. Petitioner gives a Certificate of Insurance at no cost to the consumer providing for 24 months of burial protection in exchange for their agreement to listen to a sales presentation on pre-need cemetery care. There is no requirement that the consumer actually purchase a pre-need cemetery plan to receive the Certificate of Insurance. The pre-need cemetery plan consists of the sale-of real or personal property and services connected therewith respecting an individual's burial. There is no identifiable and additional charge for the insurance which is given to all consumers attending the pre-need cemetery presentation. Findings based on evidence adduced at the hearing The Certificate of Insurance providing for 24 months of burial protection is provided to the prospective customer before the sales presentation, but the prospective customer must listen to the sales presentation. An additional condition to receipt of the Certificate of Insurance is non-ownership of other local cemetery property. The sales personnel of Service Corporation International ("SCI"), the Petitioner's parent company, use the 24 month burial protection plan in the actual sales presentation. At the close of the sales presentation, potential customers are shown what the average cost of burial services and products will be at death and are shown what those costs will be if they happen to purchase the cemetery plan and can factor in the 24 month coverage provided for by the plan. The 24 months of free burial protection insurance is used for price comparison purposes. SCI is offering the 24 month burial protection plan as a marketing tool to obtain entry into a prospective customer's home in order to make a sales presentation on pre-need cemetery property and services. The Certificate of Insurance is offered as an inducement to the sale of real or personal property and services connected therewith. The benefits of the 24 month burial protection plan are guaranteed by Certificate of Insurance Form No. 01285-NV-3, issued under the master group policy of insurance Form No. 01285- NV.
Recommendation Based on all of the foregoing, it is recommended that the Department of Insurance and Treasurer enter a final order in this case disapproving Petitioner's Burial Protection Policy Form 01285-NV and Certificate Form 01285- NV-3. DONE AND ENTERED this 15th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1361 The following are my specific rulings on all findings of fact proposed by the parties. Findings proposed by the Petitioner: Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Rejected as irrelevant. Paragraphs 5, 6, and 7: Accepted in substance. Paragraphs 8, 9, and 10: Accepted. Paragraph 11: Rejected as irrelevant. Paragraphs 12, 13, and 14: Rejected as subordinate and unnecessary details. Paragraph 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraph 17: Rejected as subordinate, unnecessary, and irrelevant. Paragraph 18: Rejected as subordinate and unnecessary details and as not Supported by persuasive competent substantial evidence. Paragraphs 19, 20, 21, and 22: Rejected as subordinate and irrelevant details. Paragraphs 23 and 24: Rejected as irrelevant. Paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36: Rejected as subordinate and unnecessary details. Paragraphs 37, 38, 39, and 40: Rejected as irrelevant. Paragraph 41: Rejected as irrelevant and as not supported by persuasive competent substantial evidence. Paragraphs 42, 43, 44, 45, 46, and 47: Rejected as irrelevant and because Dr. Downs' ultimate conclusions are not persuasive. Paragraphs 48 and 49: Rejected as irrelevant. Paragraph 50: Rejected as irrelevant and because it lacks persuasive competent substantial evidence. Paragraphs 51, 52, 53, 54, 55, 56, 57, and 58: Rejected as subordinate, unnecessary, and irrelevant. Paragraph 59: Rejected as subordinate and unnecessary and as not Supported by persuasive competent substantial evidence. Further, the proposed interpretation conflicts with the clear language of the statute. Paragraph 60: Rejected as subordinate, unnecessary, and irrelevant. Paragraphs 61 and 62: Rejected because the opinion proposed is contrary to the greater weight of the evidence. Paragraphs 63, 64, 65, 66, and 67: Rejected as subordinate and unnecessary details. Paragraph- 68: Rejected as contrary to the greater weight of the evidence. Paragraphs 69, 70, 71, 72, and 73: Rejected as subordinate and unnecessary details. Paragraphs 74, 75, and 76: Rejected as subordinate, unnecessary, and irrelevant. Paragraphs 77, 78, 79, 80, 81, 82, and 83: Rejected as irrelevant. Findings proposed by the Respondent: Paragraphs 1, 2, 3, and 4: Accepted. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Rejected as irrelevant. Paragraphs 11, 12, 13, and 14: Accepted. Paragraphs 15, 16, 17, and 18: Rejected as subordinate and unnecessary details. Paragraph 19: Rejected as redundant. Paragraph 20: Rejected as subordinate, irrelevant, and redundant. Paragraphs 21, 22, and 23: Rejected as subordinate and unnecessary details. Paragraph 24: The bottom line opinion is accepted, but most of the details in this paragraph have been omitted as subordinate and unnecessary. Paragraphs 25, 26, 27, 28, 29, 30, 31, and 32: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Douglas A. Mang, Esquire Mang, Rett & Collette, P.A. P. O. Box 1019 Tallahassee, Florida 32302 Michele Guy, Esquire Legal Division 413-B Larson Building Tallahassee', Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Conclusions Having reviewed the Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The Agency issued the attached Notice of Intent to Deny letter and the Election of Rights form to Hope Garden Assisted Living Facility. (Ex. 2) The Election of Rights form advised of the right to an administrative hearing. 4. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Based upon the foregoing, it is ORDERED: 1 Filed May 30, 2013 10:05 AM Division of Administrative Hearings 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. The Notice of Intent to Deny is withdrawn. ORDERED at Tallahassee, Florida, on this 2A day of Atty , 2013. SL i th dh sean Ageréy for He are Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and Or Se of this Final Order was served on the below-named persons by the method designated on this 27 ay of aa , 2013. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Lourdes A. Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) "| Calisha A. Francis, Esq. Attorney for Hope Garden Assisted Living Facility Martells and Francis, LLC 4000 Hollywood Blvd. , Suite 555-S Hollywood, Florida 33021 (U.S. Mail) E Gary Early Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
