The Issue Are Rules 3F-5.004(4)(b)1. and 2., Florida Administrative Code, an invalid exercise of delegated legislative authority?
Findings Of Fact The following are the stipulated facts: On or about September 15, 1995, Trinity Memorial Gardens of Lakeland, Inc., a Florida corporation, filed an application to organize a new cemetery company to be located at the Northwest corner of Mall Hill and Griffen Roads in Polk County, Florida. By publication in the Florida Administrative Weekly on March 29, 1996, the State of Florida, Department of Banking and Finance issued a Notice of Intent to Approve the Application for a New Cemetery Company submitted by Trinity Memorial Gardens of Lakeland, Inc. On April 18, 1996, Lakeland Memorial Gardens, Inc., a licensed Florida cemetery, located at 2126 South Bartow Highway, Lakeland, Polk County, Florida, filed a Petition for Formal Proceeding pursuant to Section 120.57, Florida Statutes, to contest the proposed action of the Department to approve the proposed new cemetery. On June 24, 1997, the Florida Cemetery Association, Inc., filed a Petition to Intervene which was granted July 8, 1997. In reviewing an application for a license for a new cemetery, the Department is required to determine whether there is a need for the new cemetery in accordance with requirements of Sections 497.005(28) and 497.201(3), Florida Statutes, and Rule 3F-5.004(4), Florida Administrative Code. Rule 3F-5.004(4), Florida Administrative Code, has been in existence since approximately 1975, and was last amended on October 23, 1991. Rule 3F-5.004(4), Florida Administrative Code, for purposes of this proceeding, is a rule proposed and adopted by the Department. In reviewing the application filed by Trinity the Department purported to apply Rule 3F-5.004(4)(b)2., Florida Administrative Code, in making a determination of need on the application filed by Trinity Memorial Gardens of Lakeland, Inc. In 1993, the Florida Legislature defined for the first time the term “community” in Section 497.005(28), Florida Statutes, by passing Chapter 93-339, Laws of Florida. Rule 3F-5.004(4), Florida Administrative Code, has not been amended since the passage of Chapter 93-339, Laws of Florida. The Department of Banking and Finance has not implemented the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code, in a determination of need under Section 497.201(3), Florida Statutes, since the effective date of Chapter 93-339, Laws of Florida. It is the Department’s position that the definition of “community” contained in Section 497.005(28), Florida Statutes, “superseded” or codified the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code. The Department interprets the requirements of Rule 3F-5.004(4)(b)2., Florida Administrative Code, to mean that only those cemeteries located within a twelve mile radius of a proposed new cemetery will be considered in determining need for a new cemetery. This interpretation by the Department has been utilized since October 18, 1990. In making a determination of need, the Department uses a fifteen-mile radius to determine the projected number of burial spaces needed in the “community” for a period of thirty years. In determining the “adequacy” of existing cemetery facilities under Section 497.201(3), Florida Statutes, the Department uses a twelve-mile radius to determine the number of spaces “available” for a period of thirty years and excludes from consideration all existing licensed or unlicensed cemeteries within a fifteen-mile radius but outside a twelve-mile radius of the proposed new cemetery. Use of twelve-mile radius, as opposed to a fifteen-mile radius, for the examination of the adequacy of existing facilities pursuant to Section 497.201(3), could, and has in the past, caused the exclusion of licensed cemeteries in the area outside of twelve miles but inside of fifteen miles. The Department noticed in the Florida Administrative Weekly the following: Notice of Proposed Rules 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 22, Number 37, September 13, 1996. Notice of Proposed Rule 3D-30.0055, Volume 22, Number 40, 5665, October 4, 1996. Notice of Withdrawal of Proposed Rules No. 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 23, Number 15, 1900, April 11, 1997. Notice of Change, Rule 3D-30.0055, Volume 23, Number 15, April 11, 1997.
Findings Of Fact Manasota Memorial Park is a large cemetery licensed under Chapter 497, Florida Statutes, by the Department of Banking and Finance, as a "cemetery." It is also licensed under Chapter 470, Florida Statutes, by the Department of Professional Regulation, as a "direct deposer". It is licensed by the Department of Insurance, pursuant to Chapter 639, Florida Statutes, to sell "pre-need" funeral merchandise or service contracts. Manasota has specifically reserved the right to adopt, alter, amend or repeal any of its by-laws, with or without notice to the owners of burial spaces in its cemetery. This reservation is found in paragraph 63, page 14 of Manasota's current by-laws, in evidence. Manasota has, however, agreed to prepare and distribute an updated compilation of its by-laws to its burial space owners at the conclusion of the present proceedings. Manasota is in the business of selling burial space, and conveys that in fee simple to a purchaser, rather than offering mere burial rights to property it retains title to. There are currently between 17 and 18 thousand owners of burial spaces in Manasota Cemetery. Many of Manasota's owners or "clients" have purchased their land "pre-need." Frequently, however, burial spaces are required to be purchased in the "at-need" situation. Because Manasota has already sold in excess of 17 thousand cemetery lots, many of its potential "clients" already own their lots and so Manasota only needs to provide services at the time of the funeral itself. Funeral services at Manasota, by its by-laws, can only be held in a rotunda area away from the actual gravesite. Graveside services are prohibited by a provision of Manasota's bylaws. In the conduct of its business, Manasota often obtains from the funeral directors, the name, address, telephone number and relationships to the deceased of persons making funeral arrangements. Manasota is free to and often does contact that person directly in order to make arrangements for authorization to open and close the grave, conduct the rotunda service, and for payment of the grave opening and closing charge. This charge, for opening and closing the gravesite, is a set fee which is not negotiable. Manasota often quotes this charge and otherwise secures funeral arrangements by telephone. It has produced no evidence to show that this procedure has caused any adverse effect on its business. Manasota seeks, however, in this proceeding, to enact a by-law that requires persons with "paramount authority," that is, persons who are making funeral arrangements for the deceased, to actually sign an authorization form for the service and the grave opening and closing, and to pay for the opening and closing of the grave at least 24 hours in advance of the service. Manasota does not independently determine whether the persons who execute authorization forms and pay grave opening and closing charges, actually have "paramount authority" to do so, but rather, relies upon the assurances of such persons that they have such authority, or upon assurances of the funeral director who is otherwise in charge of arrangements. The proposed by-law requiring 24 hour advance payment and signed authorization from persons with "paramount authority" provides no standard for determining which persons, in the family, or otherwise connected with the deceased, have "paramount authority" and that term is nowhere defined in the proposed by-law or other places in Manasota's by-laws. Manasota, at present, frequently prepares gravesites without requiring a signed authorization form for such work in advance. Typically, Manasota does not presently require that an authorization form be executed when the person with alleged "paramount authority" is not available. Its present procedure, with this built-in flexibility, is especially beneficial for persons who must journey from distant parts of the country, upon hearing of the demise of a relative in the Sarasota area, and who would be unable to arrive 24 hours in advance of the scheduled service, even though such a person might indeed be the person in the deceased's family with "paramount authority" to make the arrangements. The present by-law does not allow any exception to its proposed requirement in this regard for persons who are unable, due to distance or otherwise, to go to Manasota's place of business to sign the appropriate forms and to pay the grave opening and closing charge 24 hours in advance of the scheduled service. The proposed by-law, for instance, does not have the flexibility of allowing the funeral director to act on behalf of such persons in arranging and paying for Manasota's services. By providing no standards for defining which persons have "paramount authority," the proposed by-law does nothing to alleviate any potential confusion between the funeral director and family members as to who has paramount authority to make such arrangements as purchase of a gravesite, payment of opening and closing charges, and other services and charges performed and required by Manasota. The identity of a deceased person is placed on a death certificate for that person by one who first assumes custody of the body. The information as to identity placed on the death certificate is obtained from the next of kin or the best qualified person or source available to identify the deceased. Prior to final disposition, the person who first assumes custody of the body, after the death certificate is prepared (typically, the funeral director) prepares a "burial transit permit" upon which the decedent is identified, which identification is based on the information appearing on the death certificate. Funeral directors who first assume custody of the body are not required to have personal knowledge of the identity of the decedent, but may rely upon the data provided by the next of kin or other qualified persons. Cemetery companies are entitled to rely on, and must rely upon, the information contained in a burial transit permit as to identity of the body that accompanies that burial transit permit to the cemetery premises. By sending a particular burial transit permit with a casket containing a body, a funeral director warrants that the body being conveyed is the body that was identified to them as the person whose name is reflected on that permit. However, funeral directors can make no warranty or representation that the initial identification of the body to them by other persons, upon which information both the death certificate and burial transit permits are based, is correct, unless of course, the funeral director knew the deceased personally. Once the funeral director delivers a casket containing a body to Manasota's rotunda before services, and once those funeral services in the rotunda facility are completed, the funeral director no longer has control over the casket and body, it having been delivered with its accompanying burial transit permit to the custody of Manasota. The funeral directors thus do not participate in the actual burial of the casket in the grave. Manasota, under the present practice, can easily identify caskets delivered to it with the information contained in the accompanying burial transit permit delivered with the casket, so as to ensure that the casket is properly identified. The funeral directors themselves who perform services at Manasota's premises, have no actual, personal knowledge whether the casket containing the body identified in the accompanying burial transit permit, will actually be buried in the correct grave, since they do not participate in the actual burial and leave the premises at the conclusion of the funeral services themselves. Manasota proposes that plastic identification tags be attached to the surface of the casket, but the permanency of this attempted identification method is not reliable because the tags have, in some instances, become unattached. Although the cost is minor, there is an additional cost to funeral directors if they are required to utilize such tags and insure that they remain permanently attached to the caskets, and this additional cost, however small, will be reflected in additional charges made to the public for such services. Further, information concerning identity of the deceased is contained in the burial transit permit which accompanies the casket. The repetition of the same identity information on a plastic tag to be attached to the casket would accomplish nothing, in the way of enabling Manasota to identify caskets in its possession, that the burial transit permit does not already accomplish. The point is that if the funeral director has information concerning who the decedent placed in the casket is, and records that on the burial transit permit, and then "publishes" that same information again by placing the identity information on a plastic tag attached to the casket, it will not serve to better identify the remains inside the casket and will not do anything to forewarn Manasota, the cemetery company, if a mis-identification has occurred by either the funeral director or by the person executing the death certificate, or otherwise informing the funeral director of the identity of the decedent's body placed in his custody. Finally, with regard to the proposed by-law concerning payment for Manasota's services at least 24 hours prior to the scheduled funeral service and its requirement that a person with "paramount authority" sign the necessary agreements with Manasota to initiate their services, at least 24 hours prior to the funeral service, it must be remembered that prior to burial, family members who are typically the group from which the person with "paramount authority" is chosen, are usually in a state of severe bereavement and are not in a proper state of mind to be conducting business transactions, especially during the particularly harrowing time for a family between the point of the decedent's death and the point of that funeral service and burial. It seems especially callous to require full payment for Manasota's services in advance, at least 24 hours before the service, right in the middle of this particularly acute period of bereavement between the death and the burial of a family member, with the implication being that if payment were not made and the appropriate agreements not signed timely, that Manasota might elect to delay or otherwise hinder the performance of the funeral services and burial. Certainly Manasota can provide its services when needed by bereaved parties with "paramount authority" over the remains of the deceased person but require payment at a later date, albeit a date certain, as is done in most other business transactions. The family member or other person with "paramount authority" could be billed at a later time just as easily. Manasota, like any other business, which IS not timely paid for outstanding goods or services rendered, has civil remedies available to it, and it would be beneficial to bereaved persons for Manasota to provide its services when needed, but not to mandatorily seek payment before it performs the funeral service or the burial.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the proposed amendments to the by-laws of Manasota Memorial Park, Inc. be disapproved, except that the proposed requirement that 24 hour advance notice by the person in paramount authority, of the need to schedule a funeral service and the proposed limit on Manasota's liability concerning quality of burial merchandise purchased "off-site", be approved. DONE and ENTERED this 27th day of August, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1984. COPIES FURNISHED: Douglas L. Stowell, Esquire MANG and STOWELL Barnett Bank Building Suite 740 Tallahassee, Florida 32302 Lee E. Hayworth, Esquire ISPHORDING, PAYNE, KORP, MUIRHEAD and GAY 601 South Osprey Avenue Sarasota, Florida Clyde A. Willard, Esquire The Capitol Suite 1302 Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
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 Is Proposed Rule 3F-5.009, Florida Administrative Code, invalid on the basis that the proposed rule is an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are found: On March 28, 1997, the Board caused to be published in the Florida Administrative Weekly, Volume 23, Number 13, the text of its proposed rule to be known as Rule 3F-5.009, Florida Administrative Code, which the Board indicated that it intended to adopt. The proposed rule reads: 3F-5009 Regulatory Standards for Evaluating Applications by the Board. When an application for authority to organize and operate a new cemetery company is filed, it is the applicant's responsibility to meet the statutory criteria warranting the grant of authority. The Department shall conduct an investigation pursuant to Section 497.201(2), Florida Statutes, and report its findings to the Board. If in the opinion of the Board, any one of the criteria as set forth in Section 497.201, Florida Statutes, which requires board review and approval has not been met and cannot be remedied by the applicant, the Department cannot approve the application. The applicant shall submit information addressing the following: Capital structure. Capital should be adequate to enable the new cemetery to provide necessary services for cemeteries, including adequate service to the community and adequate care and maintenance of the cemetery. Capital shall be sufficient to purchase a cemetery site of no less than 15 contiguous acres in fee simple unencumbered; to develop at least two (2) acres for burial spaces including paved road from a public roadway; to purchase or lease adequate equipment for the operation and maintenance of the cemetery; and to build or lease suitable facilities to operate the cemetery. An applicant shall demonstrate that it has sufficient capital to sustain its operations until its first projected profitable year. Sufficient capital shall mean that the applicant is able to cover its cumulative losses until projected profitability; provided that in no event may the tangible accounting net worth of the applicant be less than $50,000. The demonstration of sufficient capital shall be made by submittal of a business plan covering every year from inception up to and including its first projected year of profitability and providing: Revenue expectations based on the applicant's projected sources of revenue and projected revenue including number of annual sales and average sales on a unit basis and a demographic analysis of the applicant's projected market which supports this revenue projection; An analysis of the cost incurred to achieve the projected revenues including sales costs, product costs, delivery of service costs, financing of capital requirement cost, care and maintenance costs, the costs of perpetual care (including other sources of funds in the event of shortfalls in the perpetual care funds); and any information required by the Board and reasonably necessary for the Board to make a determination of the applicant's financial stability. Proposed executive officers, directors or principals. The proposed officers, directors or principals shall each submit an executed Historical Sketch, Form DBF-HS-1, effective 4/25/94, which has been incorporated in Rule 3F-5.002, and shall have reputations evidencing honesty and integrity. They shall have employment and business histories demonstrating their responsibility in financial affairs. The fact that a proposed officer, director or principal has been adjudicated bankrupt or has filed for relief under the Federal Bankruptcy Act shall be considered a material factor in the evaluation of responsibility in financial affairs. At least one (1) of the proposed directors or principals, who is not also a proposed officer, shall have had substantial direct experience as an executive officer, director or principal of a cemetery or a certificate holder licensed pursuant to Section 497.405, within 3 years of the date of the application. If in the opinion of the Board the aggregate level of experience represented by the proposed board of directors or principals is not substantial, the Board shall require the addition of other outside directors or principals who have adequate experience. The proposed general manager shall have at least 1 year of direct experience within 7 years of the application as a general manager, director, regulator of a cemetery or similar position having an equivalent level of responsibility for a cemetery. The general manager must have a reputation evidencing honesty and integrity and an employment history demonstrating competent past experience. It is not necessary that the name of the general manager be submitted with the application. However, this individual must be named and have submitted an executed Historical Sketch, Form DBF-HS-1, not later than ninety (90) days prior to applicant's intended opening date. The applicant may not open for business without prior approval of the general manager by the Department. Change of a director, chief executive officer, president, principal or general manager or the addition of any new directors, executive officers through the first two (2) years of operation shall also require approval of the Department and the Board. The Department shall conduct background investigations on the principals, general manager, executive officers, directors, and major shareholders. Any misrepresentations or omission of fact in an application by any person shall be cause for the Department or the Board to deny that person's participation in the application and to the extent such misrepresentation or omission of fact reflect upon their honesty and integrity shall be grounds for denial of the entire application. Specific Authority 497.103, F.S. Law Implemented 497.201, F.S. History - New. Eastlake's petition challenges the proposed rule on the basis that it is an invalid exercise of delegated legislative authority. Eastlake's challenge is more specifically set out in paragraphs 5 through 8 of the petition which provide: The proposed rule imposes requirements regarding: the nature of the property interest in a cemetery site necessary to obtain a license; the nature of the capital requirements necessary to obtain a license; the information to be submitted regarding the officers of a cemetery company necessary to obtain a license; the level of experience of directors and principals of the proposed cemetery company necessary to obtain a license; the level of experience of the general manager of the proposed cemetery company necessary to obtain a license; which exceed the Board's grant of rulemaking authority, and enlarge, modify, or contravene the specific provisions of law implemented. The standards established in the proposed rule regarding the "reputations evidencing honesty and integrity" of the proposed officers, directors, principals and general manager, which reputations" may lead the Board to deny a license to engage in the business of a cemetery company are vague, fail to establish adequate standards for the Board's decisions, or vest unbridled discretion in the Board, and are arbitrary or capricious. The standards regarding the ability of the Board to conduct background investigations of the principals, general manager, executive officers, directors and major shareholders, and the extent to which such investigations may allow the Board to deny a license to engage in the business of a cemetery company, exceed the Board's grant of rulemaking authority, and enlarges, modifies, or contravenes the specific provisions of law implemented. The standards regarding the ability of the Board to conduct background investigations of the principals, general manager, executive officers, directors and major shareholders and the extent to which such investigations may allow the Board to deny a license to engage in the business of a cemetery company are vague, fail to establish adequate standards for the Board's decisions, or vest unbridled discretion in the Board, and are arbitrary or capricious. Eastlake is an applicant to obtain a licenses to operate a cemetery and is the Respondent in a challenge to a Board and Department decision to grant initial approval for that license (Trinity Memorial Cemetery, Inc., et al. v. Board of Funeral and Cemetery Services, Department of Bankina and Finance, Division of Finance and Eastlake Memorial Gardens, Inc., Case No. 96-3938), and thus would be affected by the proposed rule if it goes into effect. Trinity holds a license to operate a cemetery and is a petitioner in Trinity, Case No. 96-3938 in opposition to Eastlake's application and thus would be affected by the proposed rule if it goes into effect. The Association is an industry trade association which has membership of some 109 licensed cemeteries in Florida. Its members would be affected by the proposed rule if it goes in effect insofar: (a) as the proposed rule sets forth standards for entities attempting to become licensed as cemetery companies; and (b) as its membership has a direct interest in promoting the overall quality of the cemetery industry and assuring that the entities that are licensed to provide cemetery services provide such services in a manner so as to enhance the industry as a whole. It was the unrebutted testimony of Diana Evans, Executive Director of the Board that the purpose of the proposed rule was to set standards to guide applicants seeking Board approval of their ability, integrity, financial stability, and experience to operate a cemetery, and to guide the Board in reviewing those criteria.
The Issue The issues in this proceeding are whether Emerald Coast Funeral Home (Emerald Coast) and Jeffrey Kevin Watts (Watts) failed to treat remains with dignity and respect in violation of Section 497.386(4), Florida Statutes, and whether Emerald Coast was required by Section 497.380(12)(a), Florida Statutes, to submit a change of ownership application.
Findings Of Fact Emerald Coast has been licensed to operate a Funeral Establishment in the state of Florida and as an Apprentice- Intern Training Agency since May 4, 1998, holding license numbers FO41292-2600-01 and FO41292—2200-01. In 1997, Carriage Services of Florida, Inc., acquired Emerald Coast Funeral Home from Forest Lawn/Evergreen Management Corporation. Emerald Coast is a fictitious name registered with the Florida Department of State, Division of Corporations, to Carriage Funeral Holdings, Inc. Also in 1997, Carriage Funeral Holdings, Inc., became the indirect owner of Emerald Coast through issuance of all the shares of common stock of Carriage Services of Florida. In 1998, shortly after the merger, Emerald Coast filed a change of ownership application with the Board of Funeral Directors & Embalmers. Unfortunately, the application contains a scrivener’s error that erroneously reflects “Carriage Funeral Services of Florida” as the owner of Emerald Coast instead of Carriage Services of Florida, Inc. However, the attachments to Emerald Coast’s application properly identify Carriage Services of Florida, Inc., as the direct owner of Emerald Coast, and Respondent’s records reflected Carriage Services of Florida as the owner. Additionally, at the time Emerald Coast’s application was filed, one of the attachments reflected that Carriage Services, Inc., was the sole shareholder of Carriage Services of Florida, Inc. However, as indicated, since 1997, Carriage Funeral Holdings, Inc., has owned all the common stock of Carriage Services of Florida, Inc., and is the ultimate owner of Emerald Coast. In 2000, Carriage Services of Florida, Inc. merged into Carriage Cemetery Services, Inc., a Texas corporation authorized to do business in the State of Florida. Under the Articles of Merger, Carriage Services of Florida and Carriage Cemetery as the constituent corporations merged into the surviving corporation Carriage Cemetery Services. Carriage Services ceased to exist and, by the terms of the merger, Carriage Services shares of stock were cancelled. The official records of the Department of State do not contain any corporate annual reports for Carriage Services after 1999. The official records of the Department of State do contain required corporate annual reports for Carriage Cemetery up through 2009. There was no evidence regarding the relationship between Carriage Holdings and Carriage Cemetery. However, all three corporations appear to be owned by the same individuals, but are legally separate entities. As separate entities, the merger of Carriage Services with Carriage Cemetery technically caused a change of ownership of Emerald Coast to occur at the time of the merger, since Carriage Services ceased to exist. At that point, the new owner should have notified the Department of the change in ownership. Emerald Coast did not file such a notification. There was no evidence that Emerald Coast intentionally elected not to notify the Department regarding its change in ownership or that it was trying to hide such change. As indicated, the people at Emerald Coast’s corporate headquarters remained the same, even though the technical corporate entity changed. However, the failure to notify the Department about the change in ownership is a violation of Florida law, albeit a very minor violation, easily corrected by filing the correct paperwork with the Department. Except for failing to notify the Department, no other violation of Florida law was shown by the evidence, since the funeral establishment is the licensed entity under Florida law and Emerald Coast, as the licensed funeral establishment, had a valid license to operate as such. Given these facts, Emerald Coast is guilty of violating Section 497.380(12)(a), Florida Statutes. All other statutory violations alleged in Count II of the Administrative Complaint should be dismissed. Jeffrey Kevin Watts has been a licensed Funeral Director and Embalmer for approximately 20 years holding license number FO47717. In 2008, he was the funeral director for Emerald Coast. In February of 2008, the family of decedent B.C. hired Emerald Coast to provide funeral services. Those services included embalming B.C.’s body for viewing and cremation. To enable Emerald Coast to prepare B.C.’s body for viewing, B.C.’s husband executed a written Embalming Authorization. The written Authorization authorized Emerald Coast to care for and prepare for disposition of B.C. in accordance with its customary practices. Additionally, B.C.’s family provided Emerald Coast with a photograph of B.C. in life. The purpose of the photograph was to enable Emerald Coast to prepare B.C.’s body for viewing by her friends and family. In fact, the goal of the embalming process was to restore B.C. to as natural state as possible towards which the picture served as the standard. Importantly, B.C.’s tongue did not protrude between her teeth and out of her mouth while she was alive. Thus, the goal was to prepare B.C.’s body so that her mouth would close normally and she would resemble the photograph provided by her husband. In order to prepare a body for viewing, the body of the deceased must be embalmed. Embalming is a restorative art and always involves removing fluid and tissue from the body and replacing the same with embalming fluid. The evidence demonstrated that it is standard practice for some tissue to be removed and discarded down the drain and some tissue to be removed and discarded in a biomedical waste container at the funeral home. The condition of the body at the time of death determines how much tissue must be removed from a decedent’s remains in order to restore the exterior features of that person to its natural appearance. On February 15, 2008, Mr. Watts embalmed the body of B.C. in preparation for its viewing on February 17, 2008. During the embalming process, B.C.’s tongue became swollen. Such swelling is not a frequent occurrence of the embalming process; but it is always a possibility due to the nature of the embalming fluid used to embalm a decedent’s body. In this case, the swelling caused B.C.’s tongue to protrude from her mouth and disfigure her appearance. The decedent’s tongue protruded approximately a quarter of an inch beyond her upper and lower front teeth and prevented the mouth from being closed. The disfigurement would not have allowed B.C. to be viewed with a normal appearance since her tongue would have protruded from her mouth. To reduce the swollen tongue, Mr. Watts first tried to put the tongue back into B.C.’s mouth using firm digital pressure. The pressure was unsuccessful. He also tried to roll decedent’s tongue back into her mouth and reduce the swelling using a series of forceps and clamps. Mr. Watts also attempted to reduce the swelling in decedent’s tongue using a hot towel. These procedures were also unsuccessful and did not improve B.C.’s appearance. Mr. Watts then attempted to suture the inside of B.C.’s upper and lower lip area. However, the sutures did not keep B.C.’s tongue from protruding out of her mouth and did not restore a natural appearance to B.C.’s remains. Next, Mr. Watts tried to put cardboard into B.C.’s mouth to create a barrier that would hold the tongue back. The cardboard was unsuccessful. He also used a syringe to try to remove the fluid from B.C.’s tongue. Again, the attempt was unsuccessful and B.C.’s tongue continued to protrude past her teeth. After all these methods failed to restore B.C. to a natural appearance, Mr. Watts consulted his supervisor, Chuck Jordan, regarding the swelling in the decedent’s tongue. Like Mr. Watts, Mr. Jordan tried to reduce the swelling in the B.C.’s tongue and to force it back into position. Importantly, all of the methods used by Mr. Watts and Mr. Jordan are standard practices in the embalming industry. In fact, the process and practices followed by both men are recognized as appropriate practices to restore a body’s natural appearance. As a last resort, Mr. Jordan and Mr. Watts agreed that excision of the protruding portion of the tongue was the only procedure that would restore B.C.’s natural appearance. Mr. Jordan authorized Mr. Watts to excise the protruding portion of B.C.’s tongue. Again, excision of the tongue, or a portion thereof, in cases such as the one here is an accepted and customary embalming practice specifically recognized by the industry and is addressed in the textbook used by all 49 of the colleges of mortuary science in the United States – Embalming: History, Theory and Practice by Robert G. Mayer – as a proper method of last resort in restoring a body to its natural appearance. Thereafter, Mr. Watts excised the protruding portion of B.C.’s tongue by tracing over the upper and lower teeth with a scalpel. This procedure resulted in the excision of a piece of waste tissue that measured approximately a quarter of an inch wide by an inch and a quarter long. He did not remove a body part from B.C.’s body since B.C.’s tongue remained with her body. After removal, Mr. Watts placed the excised tissue in the biomedical waste container in the preparation room. Such a receptacle is the appropriate container in which to dispose of waste tissue. Indeed, the better expert evidence demonstrated that disposal of such waste tissue as biomedical waste is appropriate and is standard practice in the industry. There was no clear and convincing evidence that demonstrated disposal of waste tissue, like the tissue in this case, was disrespectful or an undignified handling of a person’s remains especially since standard mortuary practice recognizes such disposal as appropriate. Moreover, there was no clear or convincing evidence that the excised portion of B.C.’s tongue constituted human remains since they were no longer part of the decedent’s body. In February of 2008, Kirk Kahler was a licensed embalmer’s apprentice working for Emerald Coast under the supervision of Mr. Watts. As the supervising embalmer, Mr. Watts was responsible to teach and instruct Mr. Kahler. On February, 17, 2008, Mr. Watts discussed the excision of the protruding portions of B.C.’s tongue with Mr. Kahler. Mr. Watts discussed the issues with B.C.’s tongue because the methods and processes he used to resolve the protruding tongue do not occur frequently; but, do occur during the embalming process. It was an opportunity for Mr. Kahler to learn about an infrequent occurrence in the embalming industry. While Mr. Watts was checking the point of excision to ensure there would be no fluid leaks from the area, Mr. Kahler asked Mr. Watts where the excised tissue was and how much had been removed. Mr. Watts informed Mr. Kahler the tissue was in the biomedical waste receptacle and removed it to show Mr. Kahler the amount of tissue removed. In order to show the tongue to Mr. Kahler, Mr. Watts held the tongue up. Mr. Kahler testified that Mr. Watts held the tongue up “like a trophy fish.” Mr. Watts denied such an action or that he demonstrated a “trophy fish” attitude. Such a personal opinion by Mr. Kahler about another person’s attitude or thoughts is neither clear nor convincing evidence that Mr. Watts treated B.C.’s tongue in an undignified manner. After showing Mr. Kahler the excised tissue, Mr. Watts placed the tissue back into the biomedical waste container. Later that day, without Emerald Coast’s consent, Mr. Kahler removed the excised tissue from the biomedical waste container, placed it in an envelope, and kept it in his mailbox at Emerald Coast. Mr. Kahler, whose rationale is somewhat suspect in this case, testified that he took the tissue because he was outraged by Mr. Watts’ handling of the tissue, thought the family should have been advised about the excision of the tissue, and thought the waste tissue should have been cremated with B.C.’s body. His desire was to preserve the tissue as evidence. The family of B.C. held her viewing and service on February, 17, 2008. On February 21, 2008, Mr. Kahler transported B.C.’s body to the crematorium where she was cremated. Even though Mr. Kahler professed concern for the family and felt that the excised tissue should have been placed with the body, Mr. Kahler neither advised the family about the excised tissue, nor placed the excised tissue with the body even though he had the opportunity to do so. Later, after his resignation from Emerald Coast in the middle of March, 2008, Mr. Kahler took the envelope home with him and kept it on his kitchen counter for approximately 45 days. On March 21, 2008, Mr. Kahler emailed the corporate headquarters of Emerald Coast regarding “the removal of a large portion of tongue,” from a decedent’s body. The email also voices other concerns about the management of Emerald Coast. Mr. Kahler again emailed corporate headquarters to advise that he had the “referenced tongue.” He communicated the same message about his possession of “the tongue” to corporate headquarters again on March 30, 2008. At some point, Emerald Coast’s corporate headquarters contacted its attorney regarding Mr. Kahler’s removal and possession of excised tissue from Emerald Coast. On April 29, 2008, the attorney wrote Mr. Kahler a letter demanding that he return the tissue to Emerald Coast by a specific date and time. The attorney advised that if Mr. Kahler did not return the tissue, Carriage would file a civil suit against Mr. Kahler. The letter does not constitute an admission by Respondents that the excised portion of B.C.’s tongue meets the definition of remains contained in Chapter 497, Florida Statutes. On April 30, 2008, Mr. Kahler responded that he would return the tongue to the family since he felt it “technically” belonged to them. He also stated that he would “contact his friends at the local newspaper.” That same day, Mr. Kahler asked that Petitioner contact him about the “illegal removal of body parts.” At that time, Mr. Kahler had the excised tissue in his possession for 70 days. An investigator for the Department met with Mr. Kahler and advised him to return the tissue to Emerald Coast so that it could be disposed of properly. Shortly after that meeting, Mr. Kahler returned the tissue to Emerald Coast. However, the evidence was neither clear nor convincing that either Emerald Coast or Mr. Watts treated B.C.’s remains in an undignified or disrespectful manner. The procedures they used to restore B.C. to a natural appearance were standard procedures. The disposal of the waste tissue from that restorative process was likewise standard. Similarly, there was no clear or convincing evidence that demonstrated Mr. Watts treated B.C.’s remains in an undignified or disrespectful manner. Mr. Kahler’s opinion is simply insufficient to demonstrate that either Respondent violated Florida law regarding the treatment of human remains. Based on these facts, the Count I of the Administrative Complaint filed against Emerald Coast should be dismissed. Similarly, the Administrative Complaint against Mr. Watts should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered dismissing the Administrative Complaint filed against Jeffrey Kevin Watts and dismissing Count I of the Administrative Complaint filed against Emerald Coast. It is further RECOMMENDED that a final order be entered finding Emerald Coast guilty of violating Sections 497.380(12)(a) and 497.152(1)(a), Florida Statutes, and issuing a letter of reprimand for such violation. DONE AND ENTERED this 5th day of October, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2009. COPIES FURNISHED: Thomas A. David, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Derek E. Leon, Esquire Christopher J.M. Collings, Esquire Morgan, Lewis & Bockius, LLC 5300 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2399 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
Recommendation For the violations as established in the course of this complaint it is recommended that the license of Arnett P. Rogers to practice as the funeral director, license no. 703, and to practice as an embalmer, license no. 873, be revoked but that such revocation be withheld pending the satisfactory completion of a two year probationary term. It is recommended that the license of the Respondent, House of Rogers Funeral Home, license no. 670, be revoked, but that revocation be withheld pending the satisfactory completion of a two year probationary term. DONE and ENTERED this 1st day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G. Kenneth Norrie, Esquire 1300 Florida Title Building Jacksonville, Florida 32202 D. Chanslor Howell, Esquire 606 Fletcher Building 1000 Riverside Avenue Jacksonville, Florida 32204
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 =================================================================
