Findings Of Fact On or about June 7, 1979, Petitioner filed with the Department an application together with the required fee, for authority to transfer a cemetery company in St. Petersburg, Florida. The name of the cemetery company sought to be transferred is Royal Palm of St. Petersburg, Inc. A notice of receipt of the application was filed and published in the Florida Administrative Weekly, Volume 5, No. 24, on June 15, 1979. Thereafter, Respondents filed an objection to the granting of the requested transfer. Those Respondents who objected to the granting of the transfer were George E. Feaster, d/b/a Feaster Memorial Homes; Gerald B. Hubbell, d/b/a Hubbell Funeral Home; R. Lee Williams, d/b/a R. Lee Williams Funeral Home; J. Fred Bobbitt, d/b/a Bobbitt Funeral Chapel; A. Bruce Cloud, d/b/a Osgood Cloud Funeral Home; Fred H. Kenfield, d/b/a Fred H. Kenfield Funeral Home; C. James Mathews, d/b/a C. James Mathews Funeral Home; Edmund E. Thurston, d/b/a Wilhelm-Thurston Funeral Home; William J. Rhodes, d/b/a John S. Rhodes, Inc.; Donald I. Dyer, d/b/a The Palms Memorial; Patrick M. McGriff, d/b/a McGriff Funeral Chapel; David A. Dane, d/b/a R. Lee Williams Funeral Home; Lewis W. Mohn, d/b/a Lewis W. Mohn Funeral Home; Alan R. McLeod, d/b/a Alan R. McLeod Funeral Home; William F. McQueen, d/b/a Anderson-McQueen Funeral Home; Mrs. Letha F. Rhodes; Richard H. Fairfield; Betty W. Wilhelm; Timothy T. Brett and Terry Brett, d/b/a Thomas J. Brett Funeral Home; and William B. Gee and Edgar E. Pitts, d/b/a Gee & Pitts Funeral Home. Counsel for all parties stipulated at the final hearing that all Respondents objecting to the transfer are persons whose substantial interests would be affected by this proceeding within the meaning of Chapter 120, Florida Statutes. Respondents contend generally that Petitioner does not meet the statutory requirements contained in Section 559.34, Florida Statutes, for approval of the requested transfer. Petitioner is currently licensed as a cemetery owner in the State of Florida. Petitioner is presently the sole stockholder, president and chief operating officer of Florida Memorial Cemetery, Inc. In addition, Petitioner has previously owned three other cemeteries in Florida and currently owns a cemetery in Tennessee. Petitioner has been engaged in the cemetery business for more than 19 years, the last seven of which have been in the State of Florida. He has been licensed as a cemetery owner in the State of Florida since 1975. Petitioner's prior experience in the cemetery business includes all phases of cemetery operation from salesman to owner. In August of 1975, Petitioner purchased Florida Memorial Cemetery, Inc. At the time of purchase, Petitioner believed that he was assuming liabilities arising from the business activities of the corporation prior to purchase in the following amounts and for the following reasons: $250,000 to provide merchandise for contracts sold prior to 1972 when the Merchandise Trust Fund Law became effective. $150,000 to the Perpetual Care Trust Fund and the Merchandise Trust Fund attributable to sales made by Petitioner's predecessor in interest but not required to be funded at the time Petitioner purchases the corporation. $140,000 to build a mausoleum which the Petitioner's predecessor in interest had obligated the corporation to build. Accordingly, Petitioner was led to believe that outstanding liabilities of Florida Memorial Cemetery, Inc., at the time of purchase totaled $540,000. However, upon an audit conducted by the Department some time after purchase, Petitioner was made aware that the $150,000 pre-1972 obligation referred to above, was, in fact, approximately $350,000. This misunderstanding was due, at least in part, to Petitioner's failure to audit the books and records of Florida Memorial Cemetery, Inc., prior to purchase. It should be noted here that Petitioner had served as general manager of Florida Memorial Cemetery, Inc., from January 1973 until the time he purchased the corporation in August 1975. Cemetery companies selling burial rights and personal property or services on a pre-need basis are required to maintain percentages of those payments received on a pre-need basis in trust. Funds received from the sale of burial rights are maintained in a fund commonly referred to as the Care and Maintenance Trust Fund. Funds received from the sale of personal property or services are maintained in a fund commonly known as the Merchandise Trust Fund. Counsel for all parties stipulated at the hearing that Florida Memorial Cemetery, Inc., failed to timely deposit trust funds required by Florida law in the following amounts for the following audit periods: From January 1, 1976 to June 30, 1976, the Merchandise Trust Fund was deficient in the amount of $5,051.51. From July 1, 1976 to June 30, 1977, the care and Maintenance Trust Fund was deficient in the amount of $7,076.59, and the Merchandise Trust Fund was deficient in the amount of $17,773.23. From July 1, 1977 to June 30, 1978, the Care and Maintenance Trust Fund was delinquent in the amount of $26,068.60, and the Merchandise Trust Fund was deficient in the amount of $64,693.29. From July 1, 1978 to November 30, 1978, the Care and Maintenance Trust Fund was deficient in the amount of $12,317.20, and the Merchandise Trust Fund was deficient in the amount of $29,457.62. From December 1, 1978 through May 1, 1979, the Care and Maintenance Trust Fund was deficient in the amount of $14,827.82, and the Merchandise Trust Fund was deficient in the amount of $33,355.36. All deficits in the two trust funds described above were brought current within thirty days of notification from the Department. In addition, Florida Memorial Cemetery, Inc., has timely made its trust fund deposits since August 1, 1979, and was, at the time of final hearing in this cause, current on deposits to those trust funds. However, at the time the above-described deficits occurred, Petitioner at all times knew of their existence, knew that deposits into the trust accounts were required to be paid on a monthly basis, and made a business decision not to fund those trust accounts in order to use those funds to meet other obligations of the corporation. These obligations included the construction of a mausoleum which his predecessor in title had obligated the corporation to build, and the necessity for the corporation to purchase new merchandise. At the time the deficits in the two trust accounts existed at Florida Memorial Cemetery, Inc., Petitioner was actively engaged in other business pursuits. Petitioner and another investor purchased three other cemeteries in 1976, and borrowed approximately $75,000 to bring the trust funds of those cemeteries current. These cemeteries were later sold by Petitioner and his co- investors. In addition, in 1978 Petitioner created Florida Cemetery Products, Inc., a company engaged in the manufacture of fiberglass vaults. Petitioner invested $25,000 in this company at the time of its creation. In December 1978 or January 1979, Petitioner formed Florida Memorial Mortuary with an initial investment of $25,000. Finally, in June 1979 Florida Memorial Cemetery, Inc., purchased from Petitioner approximately five acres of land at a purchase price of $200,000, $30,000 of which purchase price was paid in cash to Petitioner. Further, during 1979 Florida Memorial Cemetery, Inc., expended $20,000 to $25,000 for the purchase of statues to be placed on the grounds of the cemetery. All these investment activities were conducted at a time when Petitioner knew of the existence of deficits in the various trusts required to be maintained by Florida Memorial Cemetery, Inc. Since Petitioner took over ownership of Florida Memorial Cemetery, Inc., the amount spent on maintaining the cemetery has more than doubled, new features have been added, more cemetery land has been obtained (a portion of which, as indicated above, was purchased by the corporation from Petitioner), roads have been improved, and the number of ground personnel maintaining the cemetery has been doubled. The current cost of maintaining Florida Memorial Cemetery, Inc., is approximately $80,000 to $90,000 per year. Income on the Care and Maintenance Trust Fund from the cemetery is approximately $30,000 to $40,000 per year, which sum is applied toward maintenance expenses. In the application form required to be filed with the Department in order to obtain authority to transfer an existing cemetery company, there is contained a series of questions. One of the questions inquires as to whether the applicant or any company with which he has been associated as an officer or member has ever been declared bankrupt. On the application form Petitioner answered this question in the negative. However, at final hearing in this cause, Petitioner admitted that he had filed for personal bankruptcy, and had been adjudicated a bankrupt in Tennessee in 1966. In explaining his failure to truthfully answer the Department's inquiry in this regard, Petitioner indicated that that period had been a particularly difficult one in his life, and that he had "wanted to put the past behind me." Another question on the application form inquired as to whether Petitioner had any judgments against him. Petitioner answered this question in the negative. At final hearing in this cause, however, Petitioner testified that he had been contacted by a collection agency or a credit bureau some time in 1973 concerning judgments outstanding in Iowa resulting from the operation of a company called "Midwest Sales." Petitioner takes the position that these judgments, copies of which were not introduced into evidence in this record, were not valid against him because personal service of process on him had not been obtained, and the judgments were for debts of "Midwest Sales." It is, however, clear that Petitioner knew of the existence of some dispute in this connection, and that some judgments might be outstanding against him, but failed to divulge their existence on his application form. Petitioner did not include with his application filed with the Department a map showing land platted for burials in the cemetery which he seeks to acquire. The owners of Royal Palm of St. Petersburg, Inc., the cemetery of which Petitioner seeks to obtain ownership, wish to sell the cemetery to Petitioner. The owners of the cemetery are not actively involved in its management, but receive frequent complaints concerning the maintenance and upkeep of the cemetery. Petitioner has apparently made plans to make capital improvements to and upgrade the maintenance of the cemetery if his application is approved. An unaudited financial statement received into evidence at the final hearing in this cause upon Petitioner's swearing to its accuracy indicates that Petitioner and his wife possessed a net worth of $457,000 as of September 30, 1979. An earlier unaudited financial statement submitted by Petitioner to the Department with the filing of his application indicated the net worth of Petitioner and his wife was $1,616,500 as of December 31, 1978. The earlier financial statement was not sworn as required by the Department's rules. It should also be noted here that Petitioner's wife is not a party to the application here under consideration. The parties to this proceeding submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued by the Department of Banking and Finance denying the application of Gene S. Crowe for authority to purchase and acquire control of Royal Palm of St. Petersburg, Inc. RECOMMENDED this 28th day of December 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1979. COPIES FURNISHED: Philip F. Nohrr, Esquire Post Office Box 369 Melbourne, Florida 32901 Laura Bamond, Esquire Office of the Comptroller 1313 Tampa Street Tampa, Florida 33602 Douglas L. Stowell, Esquire Barnett Bank Building Suite 710 Post Office Box 1019 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Dan Shook, owns residential property within the city limits of Dundee, Florida, and now also owns contiguous property that is adjacent to the right-of-way of on the northbound side of Alternate U.S. Highway 27 in Polk County, Florida, a federal aid primary highway. In prior years, the Respondent's land did not include the contiguous property adjacent to Alternate 27. In those prior years, for 17 consecutive years, the prior owner of the contiguous land maintained on the property an outdoor sign advertising Sunken Gardens in St. Petersburg, Florida, facing the northbound traffic on Alternate 27. When legislation was enacted to regulate outdoor advertising along Florida highways, the Sunken Gardens sign was "grandfathered" as a nonconforming use. Over the years, the Sunken Gardens sign fell into disrepair and, apparently in the summer of 1990, the owner of the sign decided to sell the property and abandon its permit for the location. The Respondent bought the property where the old sign was located. The Respondent was living with his wife in one of the mobile homes they owned on his property. When the Respondent bought the property where the sign was located, he planned to put an additional mobile home on the property. He asked the prior owner to remove the old Sunken Gardens sign. According to the Respondent, about four months passed, and the sign was not removed. On September 26, 1990, the Respondent contacted Sunken Gardens advertising and asked for permission to remove the sign himself, which permission was granted. The Respondent also agreed to physically remove the permit tag from the old sign and return it to Sunken Gardens so that Sunken Gardens could return the permit to the DOT, together with the required affidavit to effect the cancellation and termination of the permit. The Respondent asked for and got a letter of confirmation which stated in part that "Sunken Gardens hereby grants you all rights and ownership to remove, destroy and dispose of" the sign. Neither party intended that the Respondent was being given the right to do anything but to remove the sign from the property so that the Respondent could go forward with his plans to put a mobile home on the property. The Respondent returned the permit tag to Sunken Gardens, as agreed. But before removing the sign, the Respondent changed his mind. He had long been in the business of selling and installing mobile home supplies, accessories and certain home improvements. He operated the business out of his home on the property. But, in order to increase his business and give his wife an additional source of income, he decided to open a mobile home supplies store in downtown Dundee, about a mile away. He decided to, and did, use the serviceable parts of the old Sunken Gardens sign and rebuild and repaint the sign to advertise: "Dan Shook MOBILE HOME SUPPLIES WINDOWS - DOORS - SHUTTERS - SIDING - CARPORTS - FLORIDA ROOMS - SCREEN ROOMS - 1 MI. AHEAD DOWNTOWN DUNDEE." Meanwhile, on or about October 17, 1990, Sunken Gardens submitted to the DOT an affidavit on an official DOT form representing that the tag permit for the old Sunken Gardens sign was being returned to the DOT and that the sign was being removed due to the property changing hands. After receipt of the Sunken Gardens affidavit, the DOT inspected the site to be sure that the sign had been removed, as represented, and found the Respondent's new sign in its place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order sustaining Notice of Violation 1-16-100 and requiring that the Respondent's sign be removed. RECOMMENDED this 16th day of April, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of April, 1991. COPIES FURNISHED: Vernon L. Whittier, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Dan Shook 6002 Scenic Highway Dundee, Florida 33838 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact By application not presented at this hearing, Garden of Memories, Ltd., Petitioner, seeks a license to establish a perpetual care cemetery in Springfield, Florida, a community with a population of approximately 7,500 located just east of Panama City, Florida. Intervenors are owned by Cem-A-Care of Panama City, Florida, are operated as one cemetery with one manager, and services are offered at the same price at both cemeteries (Exhibit 2.) These are the only private, perpetual care cemeteries in Bay County. Several cities in Bay County have cemeteries but in almost all of these cemeteries no spaces are available for sale. In others, the lots available are restricted to the residents of the community where the lot is located, while one city charges non-resident 150% of the fee for lots charged to residents. In the city-owned cemeteries east of Panama City, no additional lots are available. The population of Bay County is growing and, although specific demographic projections were not submitted, the county planners estimate a 100% increase in residential acreage in unincorporated areas by 1990, with most of this growth to the east of Panama City. The evidence of need for an additional private cemetery in the proposed location, which was attested to be at least six witnesses, was unrebutted. Likewise, the testimony that the introduction of another perpetual care cemetery in Bay County will create needed competition, and thereby improve service, was not rebutted. People generally prefer to bury their loved ones reasonably close to their homes. For those residents in the eastern part of Bay County, there is no cemetery available to allow this preference. Opening the proposed cemetery will alleviate this problem.
Findings Of Fact Dale Woodward, the Respondent, holds Funeral Director's License No. 671 and Embalmer's License No. 536 at the present time, and during the times pertinent to 1978 and January through 1979. The Respondent Dale Woodward is the owner of the Dale Woodward Funeral Home of Holly Hill, Florida. The Dale Woodward Funeral Home holds an establishment operating License No. 123. During all times relevant to the allegations in the complaint, Ricky Charles Vyse and Richard G. McCafferty were employees of Dale Woodward and the Dale Woodward Funeral Home. In early 1978, one Howard McMurray made arrangements with Dale Woodward for his own funeral seven to eight months prior to his death. Mr. McMurray stated that he would prefer to have his funeral similar to that of his wife, which arrangements had earlier been handled by the Dale Woodward Funeral Home. On December 19, 1978, Howard McMurray passed away and his body was delivered to the Dale Woodward Funeral Home. On the morning of December 20, Violet Eggleston, his executrix, and her husband Raymond, came to the funeral home. Mrs. Eggleston was met by Mr. Woodward and Mr. McCafferty and introduced to Mr. McCafferty by Mr. Woodward. Although Mrs. Eggleston stated in her deposition (Exhibit 12) that she did not meet Mr. Woodward upon coming into the funeral home, she did state that he might have been painting or hanging wallpaper and that she would not have recognized him with painting clothes on and in fact Mr. Woodward's testimony establishes that he was painting the funeral home that day and was dressed in old clothes and his presence at the funeral home on that morning is corroborated by Mrs. Eggleston's later statement that Mr. Woodward introduced her to Mr. McCafferty at the time they began to discuss funeral arrangements. Mr. McCafferty was introduced to Mrs. Eggleston and obtained some information for the preparation of death certificates as well as for Mrs. Eggleston's desires regarding arrangements for funeral services. Mr. McCafferty also assisted Mrs. Eggleston on behalf of the family in making funeral selections from the Respondent's stock of caskets and urns. Mrs. Eggleston was not the person considered in sole charge of arranging for Mr. McMurray's funeral in that she was not the next of kin, rather the deceased's daughter Diana Keeley apparently had some responsibility in arranging for the funeral, although Mrs. Eggleston was primarily responsible for making the subject arrangements and indeed paid for the Respondent's services herself. Mr. McCafferty did not complete a sale of a casket or urn to Mrs. Eggleston, although she did select a salix casket that day. These preliminary negotiations and discussions of the funeral arrangements and the obtaining of a casket engaged in by Mr. McCafferty with Mrs. Eggleston were at the direction of Respondent Dale Woodward, the subject licensed funeral director, and Mr. McCafferty himself was not present at the funeral. On or about December 22, 1978, the same day, Mrs. Eggleston signed an authorization for the cremation of the body of Howard McMurray and he was subsequently cremated at the Cedar Hill Crematory in Daytona Beach, Florida. The body was removed from the casket in which it had been placed for viewing and was cremated in a cardboard cremation container, The value of that cremation container or the sales price, was substantially less than that of the $865 casket. Neither Mrs. Eggleston nor Diana Keeley, the decedent's daughter, ever gave any written instructions regarding the manner of cremation of the body of Howard McMurray as to the container which should be used, nor does the record reflect that any written instructions or understandings passed between these two ladies and Mr. Woodward or his employees. Mrs. Eggleston's instructions regarding the cremation were verbal and made no provision for the type container to be used in the cremation process. Ricky Charles Vyse was employed by the Dale Woodward Funeral Home on or about June, 1978. At that time, and at times subsequent thereto, he represented that he was qualified to embalm human bodies as an apprentice or intern embalmer in that he had submitted papers registering him for such internship to the Florida Board of Funeral Directors. Dale Woodward and Dale Woodward Funeral Home believed and relied upon that representation, thus permitting Ricky Vyse to assist or participate in embalming procedures. The Respondent Dale Woodward supervised any embalming procedures in which Ricky Vyse participated. Particularly, Dale Woodward did virtually all cosmetic work, including that in the cases involving the decedent, Howard McMurray, as well as with regard to the funeral and embalming of Mary Salvonge. Further, evidence adduced at the hearing revealed that Ricky Vyse had never actually been registered as an intern embalmer with the Board of Funeral Directors and the testimony of four of Respondent's witnesses revealed that Ricky Vyse had been detected on a number of occasions stealing office records and various items of property from the funeral home, including an embalming machine, a Beethoven bust, a desk globe, and other items. After repeated warnings, the Respondent Dale Woodward through his employees Franklin Muffley and Richard McCafferty terminated Ricky Vyse's employment. It was evident from the demeanor of Ricky Vyse on the witness stand that he was a disgruntled employee and hostile former employee of the Respondents, and that be approached the State Attorney in January, 1979 with accusations against Dale Woodward and the Dale Woodward Funeral Home involving violations such as those involved herein. The record reflects that no prosecution was initiated by the State Attorney's office. Franklin Muffley is the internal auditor and bookkeeper for the Dale Woodward Funeral Home. As such he is responsible for the billing in cases such as the McMurray case. It is his practice and custom to gather all figures and data regarding funeral arrangements, verify them and routinely mail a statement within approximately two weeks following a funeral service. In the McMurray case however, the executrix, Mrs. Eggleston, made payment on the day the funeral arrangements were made before any written itemization for funeral services to be rendered was finalized or verified by Muffley. As a result, after having been shown the salix casket priced at $865, she proceeded to pay for the casket, as well as for the other arrangements for a total of $1,785. The record is not clear whether Franklin Muffley or Richard McCafferty who were privy to the discussions of arrangements and price with Mrs. Eggleston that morning knew that the decedent would be cremated in a cardboard container. Dale Woodward, the Respondent in this case, did not learn of the fact that Mrs. Eggleston had been billed for the casket which was not used in the ultimate disposition of the body of Mr. McMurray until approximately three months later, in about March of 1979, when, as it was his regular custom and practice, he instituted his quarterly review of his business's billing and receipts. Having been closely acquainted with the McMurray family and being aware of the arrangements Mrs. Eggleston had requested for Mr. McMurray's funeral (i.e., cremation), Mr. Woodward detected an error in billing due to the charge for the casket which was not ultimately used except for display purposes. Mr. Woodward thereupon immediately made a refund to Mrs. Eggleston of $805 representing the price charged her for the casket less the $60 charge legitimately due and owing for the cardboard cremation container. Dale Woodward and Dale Woodward Funeral Home have been in operation and licensed approximately 25 years and have never been the subject of such complaints and charges heretofore. The Respondents Dale Woodward and Dale Woodward Funeral Home, as established by the four "character witnesses," enjoy a good reputation for truth and veracity in the community
Findings Of Fact In September, 1975 two sons of Mrs. Pearlene Dillard were drowned. At the hospital Mrs. Dillard selected Stevens Funeral Home to provide the burial services. Later that evening she was visited by Rudolph Gilliam who was a friend of one of her sons. Mr. Gilliam had been phoned by a roommate of one of these sons who was very upset and requested he go to Mrs. Dillard's home to assist in the funeral arrangements. At the time Mr. Gilliam was not an employee of Johnson's Funeral Home, but he had on occasion worked at the funeral home as an assistant at funerals. Gilliam is self-employed and owns a restaurant. When Gilliam talked to Mrs. Dillard and learned that she had already engaged the services of another funeral director he did not pursue the matter. However, Mrs. Dillard asked him to take her to Johnson's Funeral Home which he did on the evening of September 18, 1975. He also took her brother, a daughter, and a niece. Upon arrival at Johnson's Funeral Home Gilliam introduced Mrs. Dillard to Joe Johnson and departed the room. Johnson showed Mrs. Dillard caskets and explained to her some of the provisions relating to funeral arrangements. Thereupon Mrs. Dillard decided that she preferred to use Johnson's Funeral Home. She thereafter went to the hospital and signed a second consent to have the bodies committed to Johnson's Funeral Home. Under oath Mrs. Dillard denied that Gilliam had told her that Johnson could provide a cheaper funeral as she alleged in an affidavit that was admitted into evidence as Exhibit 2. She further indicated that she had made up her mind independent of anything that Gilliam had said and that she was happy with the arrangements that she had procured from Johnson's Funeral Home. She acknowledged that she had changed her mind before the bodies had ever been released by the hospital to Stevens Funeral Home and considered that she had the right to do so. Subsequent to this incident, Jerome Stevens, the licensed Funeral Director of Stevens Funeral Home, filed a complaint that led to these charges. His affidavit was admitted into evidence without objection as Exhibit 1. Exhibit 3, the Affidavit of Fannie Mae Goodman was admitted into evidence without objection. Therein Mrs. Goodman stated that Rudolph Gilliam came to her house three times trying to get her to take the body from Stevens Funeral Home and give it to Johnson's Funeral Home which she declined to do. Rudolph Gilliam testified on behalf of Respondent. He does not know Fannie Mae Goodman and denied any attempt on his part to request her to change from Stevens Funeral Home to Johnsons'. He was a classmate of Mrs. Goodman's daughter, and went to the house after learning of her father's death. He did talk to Mrs. Goodman's daughter but he did not talk to Mrs. Goodman. On September 19, 1975 Stevens went to Mrs. Dillard's home to inquire why she had changed the funeral services to Johnson. She told him that she had changed her mind and was going to use Johnson's for the burial services. Mrs. Dillard made no deals with Gilliam and did not discuss any funeral arrangements with him. The discussions pertaining to funeral arrangements were made between her, her brother, and Johnson. Joe Johnson testified in his own behalf. He handled the funeral arrangements for Mrs. Dillard, and Mrs. Dillard did come to his funeral home on the evening of September 18, 1975 in company with Gilliam. He stated that Gilliam was not working for him, that Gilliam did occasionally work for him as an assistant during funerals. At the funeral services for Mrs. Dillard's sons Gilliam acted as an attendant and drove a family car. For these services Gilliam was paid $10.00 for the use of Gilliam's car and $10.00 for his services as an attendant. Johnson at no time paid any commission to Gilliam or offered to pay any commission to Gilliam. Prior to the arrival of Mrs. Dillard Johnson was not in contact with Gilliam and Gilliam was not working for him. Johnson has not had enough business for the past several months to warrant the employment of any assistants other than himself and his father, who is also a licensed funeral director and embalmer. Johnson acknowledged that he placed the advertisement in the newspaper that is contained in Exhibit 4.
The Issue Whether the Funeral Director's license and/or the Embalmer's License of Donald B. Johns should be suspended or revoked. Whether the license of the Donald B. Johns Funeral Home should be suspended or revoked.
Findings Of Fact The Respondent, Donald B. Johns, holds a Funeral Director's license, No. 1473, and an Embalmer's license, No. 1633. The Donald B. Johns Funeral Home is licensed as No. 827. A complaint was filed against Respondent by Petitioner for the violation of Section 470.10(6), 470.12(1)(k), and 470.12(2)(p), Florida Statutes, and the Respondent Donald B. Johns Funeral Home was charged with violations of Section 470.12(4)(a), 470.12(4)(c), and 470.30(6), Florida Statutes. A request for a formal hearing for an appointment of a hearing officer was made by the Respondent, Donald B. Johns, and the Petitioner, State Board of Funeral Directors and Embalmers, petitioned for this hearing. Notice to appear were duly sent to the parties. Mr. and Mrs. James Jesse and the decedent's grandmother, Mrs. Jesse, contacted the Donald B. Johns Funeral Home in arranging for the funeral of the decedent, Jason Jesse, an infant. The Respondent, Donald B. Johns, as the funeral director and embalmer, appointed one Thomas Davis to make the arrangements for said funeral. The negotiations and arrangements included meeting the family at the funeral home; inquiry as to the desired services; quotation of the costs thereof; showing the family a casket catalog and ordering a casket for the family; requiring the family to complete the paperwork for the cremation; offering a cremation urn for sale; arranging a viewing for the family at the funeral home; advising the family on the availability of services at the cemetery selected by the family; discussing the availability of a sign-in book and name cards at the funeral home; attending services at the church; and attempting to correct defects in the casket and presentation of the body at the viewing. The Respondent Donald B. Johns was aware of and permitted Thomas Davis to handle the funeral arrangements on behalf of the funeral home which the Respondent owned and operated as the licensed funeral director in charge, when he knew that said Thomas Davis was only an attendant and not licensed as a funeral director. The funeral arrangements were not satisfactory to the family of the decedent and there were misunderstandings and unnecessary and trying experiences for the family.
Recommendation Revoke the licenses of Donald B. Johns and the Donald B. Johns Funeral Home, impose a fine under Section 470.34 in an amount not to exceed $1,000.00. DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville Florida 32202 Donald B. Johns 3890 Andrews Avenue Ft. Lauderdale, Florida 33309
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 ================================================================ =
