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 In the face of resistance to its standing, Petitioner presented no evidence. Accordingly, the record is devoid of any proof that a substantial number of its members are "substantially affected" by the challenged rule, that the subject matter of the rule is within the association's general scope of interest and activity, and that the relief requested is of a type appropriate for a trade association to receive on behalf of its members.
Findings Of Fact Prior to July 16, 1976, Belleview Memorial Park Association, Inc. operated a cemetery at the southwest corner of Belleview Avenue and Terrace Avenue in Daytona Beach, Volusia County, Florida. Belleview was properly licensed by the Department of Banking and Finance, the state agency which is responsible for regulating the operation of cemeteries, and for licensing cemetery operators. Belleview experienced financial difficulties. One of its creditors was Memorials, Inc. Memorials, Inc. sold bronze markers to Belleview, which Belleview used to mark grave sites. In order to prevent Memorials, Inc. from taking drastic collection action, Belleview gave Memorials, Inc. a mortgage on a portion of the Belleview Cemetery property. In giving the mortgage Belleview neither requested nor received approval from the Department of Banking and Finance. Belleview defaulted on the mortgage, and Memorials, Inc. initiated a foreclosure action in Circuit Court in Volusia County. A judicial sale was conducted, and a certificate of title was issued to Memorials, Inc. Belleview gave similar mortgages covering other portions of the cemetery property to two other creditors: Heritage Federal Savings and Loan Association, and Southeast Bank of New Smyrna. Belleview did not seek nor obtain approval from the Department before it issued these mortgages. Heritage and Southeast foreclosed on their mortgages, and purchased the respective parcels at a public sale. Heritage later conveyed its parcel by warranty deed to Lakeview Cemetery, Inc. Lakeview has for some years, and continues to operate a cemetery directly across Belleview Avenue from the Belleview Cemetery. The Southeast Bank entered into an option agreement with Memorials, Inc. whereby Southeast agreed to convey its portion of the cemetery property to Memorials, Inc., in the event that Memorials, Inc. is successful in obtaining a license to operate a cemetery on the property. The original option agreement has expired, however, it has been extended, and the option is still in effect. As a result of Belleview's financial troubles, and the apparent failure of Belleview to maintain its trust accounts, the Department of Banking and Finance brought an action in Circuit Court in Volusia County to appoint a receiver to manage the affairs of the cemetery. A receiver was initially appointed on July 16, 1976. By order entered August 17, 1976, Lawrence W. Hunt was substituted as the receiver. Hunt, in his capacity as receiver, has operated the Belleview Cemetery since that date. He has operated and maintained the cemetery including the parcels owned by Lakeview, Memorials, Inc., and Southeast Bank, as if it were a single entity. He has honored burial agreements without regard to which parcel the burial plot was located upon. Memorials, Inc., originally filed an application with the Department of Banking and Finance for authority to transfer a portion of the existing Belleview Cemetery to it. Memorials, Inc. was proposing to operate a cemetery on the portion of the Belleview Cemetery that it obtained through foreclosure. The application was filed under authority of Florida Statutes 559.33. The Comptroller entered an order approving the application for further processing subject to several conditions. Thereafter Lakeview Cemetery, Inc., and Lawrence W. Hunt, as receiver of Belleview, petitioned for a hearing, and the matter was forwarded to the office of the Division of Administrative Hearings. A hearing was scheduled, but prior to the hearing Memorials, Inc. withdrew its application. On August 14, 1978 Memorials, Inc. filed an application with the Department for authority to transfer an existing cemetery. This application was filed under authority of Florida Statutes 559.34 Lakeview, and Hunt as receiver again protested the application and the matter was forwarded to the Division of Administrative Hearings. The final hearing was conducted on October 12, 1978. Memorials, Inc., in effect, is seeking to transfer a portion of Belleview's license to it, so that it can operate a cemetery on the property which it obtained through foreclosure. Although the application in this regard is not clear, it appears that Memorials, Inc. is seeking authority only to operate a cemetery on that portion of the former Belleview property that it obtained through foreclosure. Memorials, Inc. is not, at this juncture, seeking authority to operate a cemetery on the property for which it has obtained an option from the Southeast Bank of New Smyrna. The individuals primarily responsible for the operation of Memorials, Inc., are Dorothy Levinson Rubin, Thomas B. Levinson, and H. T. Forrest. Each of these persons is of good moral character, has extensive experience in operating cemetery businesses, and is financially equipped to operate a cemetery business. The financial condition of Memorials, Inc. is such that it could responsibly operate a cemetery busi:ess. The interests of the public would not be served by granting Memorials, Inc. authority to operate a cemetery either solely on the property that it obtained through foreclosure, or upon both that property and the property upon which it has an option to purchase. The property which Memorials, Inc. presently owns, is located virtually in the middle of what has been Belleview Memorial Park. No natural boundaries separate Memorials, Inc.`s property from property presently owned by Lawrence Hunt as receiver, or property presently owned by the Lakeview Cemetery, Inc. The boundaries run directly through grave sites that are presently occupied, and would separate several family plots. The result of granting Memorials, Inc. the authority that it seeks, would be to make Memorials, Inc. responsible for maintaining one portion of a family plot, or of an individual grave site, while other entities (Hunt as receiver of Belleview or Lakeview) would be responsible for maintaining the result. A mausoleum is located virtually on the boundary line which separates the property owned by Memorials, Inc. from property owned by Lakeview. The mausoleum appears to lie on the Lakeview side of the boundary; however, it would not be possible to conduct any service at the mausoleum, or to read the inscriptions on it without standing on property owned by Memorials, Inc. It would be contrary to the public interest to require people to confront two entities to assure that the burial sites of their relatives are properly maintained. The Belleview Cemetery, including these portions owned by Memorials, Inc., Lawrence Hunt as receiver, and Lakeview, is irrigated through a single water system, and is presently maintained through a single maintenance facility. There is no room on the property owned by Memorials, Inc. to dig a well to provide a separate irrigation system for it. There is also no room to construct an adequate maintenance facility. The property constitutes only approximately four acres. The property has been totally platted for grave sites, and all but approximately six of the sites have been sold. Approximately fifty percent of the sites have been filled with interments. There is therefore no economic viability to operating the Memorials, Inc. property as a separate cemetery. Even if Memorials, Inc. operated its property as a cemetery in conjunction with the property for which it now has an option of purchase, there would still be no economic viability. While maintenance and irrigation facilities could be located on the option property, the option property and the property which Memorials, Inc., already owns are not contiguous. There would thus be a problem of operating an irrigation system, which would necessarily have to traverse the property owned by others, and of maintaining a non- contiguous cemetery. Furthermore, operating both properties as a cemetery would not solve the dilemma caused by the fact that several burial sites and family plots are traversed by boundary lines. Thomas B. Levinson, the President of Memorials, Inc. testified that Memorials, Inc. would not necessarily honor provisions of contracts of those who have purchased plots on the property that it now owns at the Belleview Cemetery respecting purchase of burial markers. Thus people who have already paid for markers might not receive them. This would do serious injury to these members of the public, and to other cemetery businesses. Memorials, Inc., has failed to establish any need for the operation of a separate cemetery in the Volusia County area. It does not appear that there is any shortage of competition in the area, and no population or death rate data was presented. Memorials, Inc. would not be unfairly prejudiced by a denial of its application. Memorials, Inc. obtained the subject property through a mortgage foreclosure. It was fully aware when it took the mortgage and when it foreclosed the mortgage that the property was a portion of an existing cemetery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the application of Memorials, Inc. d/b/a Daytona Memorial Park for authority to transfer a cemetery company be denied. RECOMMENDED this 4th day of December, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Morton M. Biegel, Esquire Suite 430 2121 Ponce de Leon Boulevard Coral Gables, Florida 33134 Franklyn J. Wollett, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 John B. Liebman, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A. P. O. Box 1171 Orlando, Florida 32802 John R. Tamm, Esquire and Robert E. Tamm, Esquire P. O. Drawer 2718 408 North Wild Olive Avenue Daytona Beach, Florida 32015
The Issue Whether Rafaiy Alkhalifa (Petitioner) is entitled to a change of name and change of location for the funeral establishment operating pursuant to the subject license because Respondent failed to approve or deny the requested change within 90 days as required by the "deemer" provision set forth in section 120.60(1). If the "deemer" provision was not triggered, whether Petitioner is otherwise entitled to a change of name and change of location for the funeral establishment operating pursuant to the subject license.
Findings Of Fact In 1993, Petitioner applied for a license to operate a funeral establishment named Funeraria Nacional Hialeah (FNH), located at 198 Hialeah Drive, Hialeah, Florida 33010. Petitioner was listed as the sole owner of the business. The application was received and processed by the Board of Funeral Directors and Embalmers, Department of Professional Regulation (DPR Board). The DPR Board was responsible for the regulation of funeral establishments prior to October 2005. Following its review, the DPR Board approved the application and issued license number FH0002027, effective December 22, 1993. The license authorized Petitioner to operate the identified funeral establishment at the identified location. On October 1, 2005, the legislature created the Board of Funeral, Cemetery, and Consumer Services within the Department of Financial Services (DFS Board) and transferred the regulatory and licensure services for funeral establishments from the DPR Board to the DFS Board.2 After it received responsibility for regulation funeral establishments, the DFS Board issued license F040780 (the subject license) to replace the license that had been issued by the DPR Board. The DFS Board relies on filings with the Florida Department of State, Division of Corporations (Division of Corporations), to verify the corporate status of funeral establishments. In Articles of Incorporation filed with the Division of Corporations on June 26, 1997, Petitioner was listed as the registered agent for "La Cubana" with an address being the same as FNH's. La Cubana became the successor in interest to FNH. On the 1999 Annual Corporation Report filed for La Cubana, Ms. Hasin was added as an officer/director. A name that appears to be Petitioner's was deleted as an officer/director. From 2000 through 2002, Delia Kennedy was the registered agent for La Cubana and Ms. Hasin was the sole officer/director. On January 24, 2002, Petitioner and Ms. Hasin were married. They separated two years later. Ms. Hasin replaced Ms. Kennedy as the registered agent on the 2003 Annual Corporate Report for La Cubana. Ms. Hasin continued to be listed as both the registered agent and officer/director on the 2003, 2004, and 2005 reports. Petitioner filed an amended 2005 Annual Corporate Report for La Cubana on December 2, 2005, in which he listed himself as both the new registered agent and officer/director, replacing Ms. Hasin in those capacities. On January 3, 2006, Ms. Hasin filed a supplemental report that replaced Petitioner's name with her name in those capacities. Ms. Hasin continued to be listed as the registered agent and officer/director in the Annual Corporate Reports filed for La Cubana in 2007, 2008, and 2009. In 2005, Petitioner filed a petition for dissolution of marriage in the Circuit Court in and for Miami-Dade County, which was assigned Case Number 05-35433 FC 07. On March 5, 2009, the presiding circuit judge entered a final judgment dissolving the marriage between Petitioner (using his Christian name of Hilbert Ervin Mohabir) and Ms. Hasin. The final judgment incorporated by reference the terms and agreement of the MMSA, which both Petitioner and Ms. Hasin signed on February 19, 2009. The MSMA recited that the parties owned five corporations and thereafter listed the name of each corporation. The name of each corporation includes either the word "Funeral" or "Funeraria." La Cubana is one of the listed corporations. The MSMA does not specifically mention the license required to operate La Cubana or the licenses of any of the other listed corporations. Pursuant to the terms of the MMSA, the following was to be distributed to Ms. Hasin: "Funeraria La Cubana, Inc., together with all stock, assets and liabilities connected with them " The MMSA also contained the following provision under the heading "Execution of Necessary Documents": Each party shall, upon the request of the other, execute, acknowledge and deliver any and all papers or documents or other instruments of release or conveyance, as may be necessary to enable the other Party [sic] to effectuate the foregoing distribution of property and other provisions of this Marital Settlement Agreement. The MMSA provided Petitioner with an option to repurchase La Cubana for $150,000 by 5:00 p.m. on August 18, 2009. Petitioner did not exercise that option. In April 2009, Ms. Richardson received a copy of the MMSA. On April 8, 2009, without notice to Petitioner, Ms. Richardson changed the owner-of-record in the DFS Board's database for the subject license from Petitioner's name to Ms. Hasin's name. On September 9, 2009, the DFS Board received from Ms. Hasin a form with the title "Change of Name & Request for Revised License Certificate - Entities." By submitting this form, Ms. Hasin sought to change the name of the licensed facility on the subject license from La Cubana to the name Funeraria Hialeah Memorial, Inc. On the license, next to the words "Business Location" was the following: "OWNER S. FAFAIY ALKHALFIA, 198 HIALEAH DRIVE, HIALEAH, FL 33010." The mailing address on the license was to La Cubana, c/o Ms. Hasin at the address of 198 Hialeah Drive, Hialeah, FL 330210. Ms. Richardson testified that she processed the request.3 Following the execution of the MMSA, Petitioner asserted no claim to the subject license until December 1, 2009, when he filed two forms with the DFS Board. The first form was styled "Notice of Change in Location of Funeral Establishment." The form is referenced as "Form DFS-N1-2001." The form contains the following information: "This form is used to report a change in location of a funeral establishment, and to request an inspection of the proposed new location pursuant to section, 497.380(12)(b), Florida Statutes." The form advised that: "Operations at the new location may NOT start until an inspection of the new location by [the DFS Board] has been conducted and passed." Petitioner identified the name of the funeral establishment he wished to locate as being Funeraria Hialeah Memorial, Inc. Petitioner identified the subject license as being the license for the funeral establishment he wished to relocate and provided the following street address for the new location: 4529 Hollywood Blvd., Hollywood, FL 33021. The second form was styled "Change of Name & Request for Revised License Certificate - Entities." The form is referenced as "Form DFS-N1-1764." The form referenced the subject license and requested that the subject license be revised to reflect the new name and new location of the funeral establishment. The form requires the party requesting the change to insert "Licensee's current name (enter exact name under which currently licensed)." In response, Petitioner inserted the name S. Rafaiy Alkhalifa. Petitioner provided the Hollywood Boulevard address as the address to which the revised certificate should be mailed. Petitioner checked the following representation on the form: "Applicant is unable to attach the original of its certificate of license because it has been lost, stolen, or destroyed." Petitioner's statement that the certificate of license had been lost, stolen, or destroyed was false. Petitioner knew that the certificate was in the funeral establishment that Ms. Hasin operated. Petitioner signed the following certification on the form: "I, the person signing below as licensee representative, do hereby swear or affirm that I am duly authorized to make this application on behalf of the licensee, and that the information supplied in the application is true and correct, and I do hereby request on behalf of the licensee, that the [DFS Board] issue a duplicate certificate to the licensee." The two forms submitted by Petitioner on December 1, 2009, reached the desk of Ms. Richardson for processing. After checking her database, Ms. Richardson determined that the two requests could not be processed because Petitioner was not the owner of the subject license. Consequently, no action was taken on the two requests. The parties stipulated that on January 15, 2010, 45 days after the forms were filed, Ms. Richardson had a telephone conversation with Petitioner's attorney who had called her to inquire as to the status of the two requests. The parties stipulated that Ms. Richardson told Petitioner's attorney that Petitioner was not the owner of the subject funeral establishment and that the DFS Board was not processing the forms. On June 7, 2010, Petitioner filed a "Notice as Required under Subsection 120.60(1), Florida Statutes," to claim a licensure by default. On July 1, 2010, Petitioner filed a Petition with Respondent to approve the changes to the subject license he requested on December 1, 2009, pursuant to the "deemer" provision of section 120.57. On August 17, 2010, the DFS Board issued a written Notice of Denial that denied the petition Petitioner had filed on July 1, 2010. The Notice of Denial recites that the MMSA extinguished any ownership rights Petitioner may have had concerning the funeral establishment operated by Ms. Hasin. The Notice of Denial also relied on Ms. Richardson's informing Petitioner's counsel that the "documents" submitted by Petitioner would not be processed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Department of Financial Services enter a final order denying the two applications filed by Petitioner. DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 17th day of August 2011.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Department of Banking and Finance, Division of Finance (Division), is the state agency charged with the responsibility of administering and enforcing the Florida Cemetery Act, as amended, which regulates the operation of cemetery companies in the State of Florida. Among other things, the Act prohibits, with certain exceptions, any person from operating a cemetery company in this State without first obtaining a license from the Division. On August 1, 1990, respondent, Cedar Wood Memorial Park (Cedar Wood or applicant), a partnership consisting of Charles L. Overturf, Jr. and C. Ben Bates, Jr., filed an application with the Division for a license to organize a new cemetery company to be located on State Road 20 in Palatka, Florida. The application was deemed to be complete on October 9, 1990. Although the application was initially denied by the Division on December 28, 1990, on the ground the existing facilities were adequate to meet all reasonable needs, on January 24, 1991, the Division reversed its earlier action and gave notice of its intention to approve the application. Thereafter, on February 21, 1991, petitioner, Masters Memorial Gardens, Inc., d/b/a Palatka Memorial Gardens (PMG), which holds a license to operate a cemetery company in Putnam County (County), filed its protest and request for hearing. In its protest, as amended, PMG contended that the addition of a new cemetery company in the County would be harmful to the cemetery industry and not benefit the public. The parties agree that PMG has standing to initiate this action. Statutory Criteria To demonstrate entitlement to a license, an applicant must first create a legal entity to operate the cemetery, propose a site containing not less than fifteen contiguous acres, and demonstrate that it possesses the ability, experience, financial stability, and integrity to operate the company. In this regard, Cedar Wood proposes to establish a cemetery site containing not less than fifteen contiguous acres. Also, Cedar Wood has created a legal entity to operate the cemetery site, and the parties agree that the applicant has demonstrated that it possesses the ability, experience, financial stability, and integrity to operate a cemetery. Besides the above criteria, the Division also considers other factors to determine need, including the adequacy of existing licensed and unlicensed facilities, the solvency of trust funds of existing facilities, and certain statistics concerning population, death rates, and rate of growth. However, the Division may waive these criteria in order to "promote competition" so that each county may have at least "six cemeteries operated by different licensees." In this case, the Division has proposed to waive these criteria in order to promote competition. It is noted that at the present time, there are three licensed cemeteries in the County, including PMG, Evergreen Cemetery (Evergreen), and Resthaven Cemetery and Memorial Park (Resthaven). In addition, there are a number of unlicensed cemeteries in the County, including two operated by the City of Palatka. Applicant's Proposed Cemetery Applicant's partnership was formed two years ago for the purpose of establishing a new cemetery in the community. According to Overturf, who also operates a funeral home, he views the venture as a good investment, particularly since the community now has only three licensed cemetaries, two of which are used primarily by the black community. The facility will be fifteen acres in size and contain an estimated 18,000 burial spaces. It will also offer substantially the same services and charges as PMG. Neither partner has had any prior experience in operating a cemetery. However, the parties have stipulated that the applicant has sufficient experience to satisfy the statutory criteria of "ability" and "experience". The applicant intends to make an initial capital investment of $500,000, of which $149,200 will be kept in reserve. After the venture is ten years old, the applicant expects to make a profit on its investment. However, this projection is based on several incorrect assumptions. First, the partners have assumed that every lot sale will be a cash transaction for the full amount. Most sales, though, are financed and this will significantly reduce the projected cash flow. Second, after year five, it will be necessary to deduct ten percent of all lot sales revenues for maintenance and trust fees which will further reduce the projected income. Third, although the new cemetery plans a mausoleum, no expense for this item has been set aside. Fourth, the cemetery intends to hire an experienced cemetery operator but has set aside only $22,500 in commissions and management fees for this purpose. Finally, because of these protracted proceedings, certain recurring expenses such as legal and accounting expenses have been underestimated. After making the foregoing corrections to the pro forma statement, it is clear that the new cemetary would not be profitable during its first decade of operations, and contrary to applicant's projection, would not achieve a profit in the tenth year. Existing Facilities in the Community For purposes of determining the need for a new cemetary, the Division is obliged to consider the existing facilities in the community to be served, or the area from which 75% of sales of burial spaces are expected to be derived. In this case, the parties have agreed that the "community" is a fifteen mile radius around the City of Palatka. As noted above, there are presently three licensed cemeteries in the community. From a geographical perspective, all are within six miles of the proposed cemetary. More specifically, PMG and Evergreen are three and two miles, respectively, from the proposed site of Cedar Wood's cemetery while Resthaven is approximately six miles away in the small community of San Mateo. Besides the licensed cemetaries, there are also a number of unlicensed cemeteries within the community. They are operated by various cities, towns, churches and families. Two of them, Oakhill and Westview Cemeteries, are operated by the City of Palatka and are open to the general public. Conversely, several church and family-operated cemetaries are restricted to family or church members while one is dedicated primarily to members of the Masons and their families. Even so, the unlicensed cemetaries have the potential to take customers away from licensed cemeteries, and all have the ability to expand without the Division's approval. All cemeteries offer the public the option of buying their burial spaces "pre-need". This means that a lot can be sold to a customer prior to his or her death. Money from pre-need sales must be deposited into a perpetual trust account and cannot be used by the licensed cemetery company for day-to-day operations. In addition, pre-need sales are generally at low, discount prices which are substantially below the price charged for an "at-need" sale, which is made at the time of death. The evidence establishes that PMG offers discounted, pre-need spaces, and while its other charges are higher than those of its two licensed competitors, they are not unreasonable or excessive in relation to the charges at other cemetaries around the state. Projected Need and Unused Spaces As a part of its preliminary investigation, the Division prepared a need survey in accordance with Rule 3D-30.015(4), Florida Administrative Code. The purpose of the survey was to ensure that there is sufficient space available for burials in the community for the next thirty years or conversely to determine if no need is projected. In developing the need survey, the Division used data from the three licensed cemetaries in the community, the two cemetaries operated by the City of Palatka, and one by a small church in the community of Peniel, which lies three miles from applicant's property. The parties have stipulated to the accuracy of the survey. It reflects that during the next thirty years, a total of 23,270 burial spaces will be needed for the community, assuming that 100% of all people cremated are buried in cemetery lots. However, if only 15% of the cremations are buried in cemetery lots, the projected need is reduced to 18,823 burial spots. The three licensed cemeteries in the community have a combined total of 35,889 unused burial spaces, some of which are already sold. However, there are currently 28,052 and 2,740 unsold spaces at PMG and Resthaven, respectively. It is noted that in November 1989 PMG purchased an additional 8.6 acres of land adjacent to its facility and in August 1991 dedicated that property to the cemetary business. The new property is included in the Division's need survey. Evergreen has 495 total unused spaces, of which the number of unsold spaces is not of record. In addition, Oakhill Cemetery, which is operated by the City of Palatka, has 1,004 unused spaces of which 746 are unsold. PMG considers Oakhill to be its primary competitor. However, at its current rate of sales, Oakhill will have no more unsold spaces within the next four and one-half years to six years. The other city-operated cemetary is now virtually filled. Although Peniel Baptist Church has only four unsold spaces, two other unlicensed facilities within the community but not counted in the Division's survey, Pinelawn and Pineview Cemetaries, which are thirteen and fifteen miles from Cedar Wood, respectively, have approximately 31,000 unused spaces. Thus, the amount of space currently unsold and available far exceeds the projected need in the community during the thirty year period from the date of Cedar Wood's application. Despite this lack of need, the Division proposes to grant the application for the purpose of promoting competition. If the application is approved, Cedar Wood intends to add 18,000 more spaces to the community's already existing inventory. Will the New Cemetery "Promote Competition"? The term "promote competition" is not defined by statute, and there are no agency rules which clarify the term or provide guidance in making this determination. However, three experts presented testimony on the existence or lack of competition in the Putnam County area and whether the addition of a new cemetary in the community would promote the same. As might be expected, the experts reached different conclusions regarding this issue. In resolving this conflict, the undersigned has accepted the more credible and persuasive testimony and this accepted testimony is embodied in the findings below. Despite its dominance in the community in terms of unsold spaces, PMG is only burying approximately twenty percent of the people interred in the County in a given year. Thus, around eighty percent of the people interred in the County are buried in other cemetaries. Some of this may be attributable to "heritage", which means that once someone is buried in a cemetary, that person's relatives will likely want to be buried within the same cemetary. Because of heritage, all of the cemetaries in the community compete with PMG. For the years 1987 through 1990, PMG sold only 65, 71, 216 and 202 spaces, respectively. The increase in sales during the last two years may be the result of an aggressive sales campaign recently initiated by PMG. Indeed, PMG is the only cemetary company in the County that actively advertises for new business. Since Cedar Wood will offer the same services as PMG, this will undoubtedly cause PMG to lose some of its sales. A loss of even one-half of its business to a competitor would have a serious financial impact on PMG. Petitioner's experts established that it would not be financially feasible to establish a new company in the Palatka area given that area's population of around 60,000, the number of existing licensed and unlicensed competitors, and the fact that several cemetary companies have recently failed in other areas of the state. These findings are corroborated by the applicant's own financial projections. The balance sheet of PMG as of December 31, 1990, reflected that it had only $2,500 in the bank as of that date. In addition, after receiving a $60,000 refund from the Internal Revenue Service and reclassifying certain items on the balance sheet, PMG's retained earnings approximated only $125,000 after fifteen years of operation. It is also noted that since the business was purchased by its present owners in 1977, no dividends have been paid to the stockholders of the corporation. At the present time, there are several factors which indicate the presence of an oligopoly in the Putnam County cemetary business. First, there are a small number of sellers (existing licensed cemetaries) in the community. Of the three, PMG is clearly the most dominant for it now controls around 89.7 percent of the unused spaces among licensed cemetaries. This degree of dominance has enabled PMG to set a price for its services without regard to the prices charged by the two other licensees. In making this finding, however, it should be remembered that PMG considers Oakhill, a city-owned, unlicensed cemetary as its chief competitor. At the same time, there are a number of barriers to entry into the cemetary business. These include a requirement for governmental approval (a license) to enter the market, a $25,000 initial fee for the perpetual care and maintenance fund, and a minimum of fifteen acres of unencumbered, contiguous land. Where such barriers as these exist, the effect is to lessen the potential competition. However, even if an oligopoly or pure monopoly exists, this does not mean that the community can support another cemetary. Indeed, the evidence shows that if Cedar Wood's projected lot sales over the next decade are achieved, it would still operate at a loss. In addition, most, if not all, of such sales would be made at the expense of PMG. Given these circumstances, it is found that competition will not be promoted by granting the application.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency enter a final order denying the application of Cedar Wood Memorial Park. DONE and ENTERED this 2nd day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that (1) Respondent Randell E. Aultman be found guilty of violating Sections 470.036(1)(e) and (o) on three occasions by reason of his failure to timely file death certificates and that Aultman be found guilty of violating the same statutes for failure on three occasions to timely obtain a burial-transit permit and to see that such permits accompanied the bodies when being transported out-of-state, and (2) Respondent The American Funeral Home be found guilty of violating Subsections 470.036(1)(e) and (o) on four occasions by reason of its failure to timely file death certificates, and that American be found guilty of violating the same statutes for failure to timely obtain burial- transit permits on five occasions and to see that such permits accompanied the bodies when being transported out-of-state. It is further RECOMMENDED that Respondent Aultman be given a public reprimand and that Respondent The American Funeral Home be given a public reprimand and required to make six monthly filings as set forth in the Conclusions of Law portion of this order. DONE and ENTERED this 5th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of April, 1982.
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 =================================================================
