Findings Of Fact On or about June 7, 1979, Petitioner filed with the Department an application together with the required fee, for authority to transfer a cemetery company in St. Petersburg, Florida. The name of the cemetery company sought to be transferred is Royal Palm of St. Petersburg, Inc. A notice of receipt of the application was filed and published in the Florida Administrative Weekly, Volume 5, No. 24, on June 15, 1979. Thereafter, Respondents filed an objection to the granting of the requested transfer. Those Respondents who objected to the granting of the transfer were George E. Feaster, d/b/a Feaster Memorial Homes; Gerald B. Hubbell, d/b/a Hubbell Funeral Home; R. Lee Williams, d/b/a R. Lee Williams Funeral Home; J. Fred Bobbitt, d/b/a Bobbitt Funeral Chapel; A. Bruce Cloud, d/b/a Osgood Cloud Funeral Home; Fred H. Kenfield, d/b/a Fred H. Kenfield Funeral Home; C. James Mathews, d/b/a C. James Mathews Funeral Home; Edmund E. Thurston, d/b/a Wilhelm-Thurston Funeral Home; William J. Rhodes, d/b/a John S. Rhodes, Inc.; Donald I. Dyer, d/b/a The Palms Memorial; Patrick M. McGriff, d/b/a McGriff Funeral Chapel; David A. Dane, d/b/a R. Lee Williams Funeral Home; Lewis W. Mohn, d/b/a Lewis W. Mohn Funeral Home; Alan R. McLeod, d/b/a Alan R. McLeod Funeral Home; William F. McQueen, d/b/a Anderson-McQueen Funeral Home; Mrs. Letha F. Rhodes; Richard H. Fairfield; Betty W. Wilhelm; Timothy T. Brett and Terry Brett, d/b/a Thomas J. Brett Funeral Home; and William B. Gee and Edgar E. Pitts, d/b/a Gee & Pitts Funeral Home. Counsel for all parties stipulated at the final hearing that all Respondents objecting to the transfer are persons whose substantial interests would be affected by this proceeding within the meaning of Chapter 120, Florida Statutes. Respondents contend generally that Petitioner does not meet the statutory requirements contained in Section 559.34, Florida Statutes, for approval of the requested transfer. Petitioner is currently licensed as a cemetery owner in the State of Florida. Petitioner is presently the sole stockholder, president and chief operating officer of Florida Memorial Cemetery, Inc. In addition, Petitioner has previously owned three other cemeteries in Florida and currently owns a cemetery in Tennessee. Petitioner has been engaged in the cemetery business for more than 19 years, the last seven of which have been in the State of Florida. He has been licensed as a cemetery owner in the State of Florida since 1975. Petitioner's prior experience in the cemetery business includes all phases of cemetery operation from salesman to owner. In August of 1975, Petitioner purchased Florida Memorial Cemetery, Inc. At the time of purchase, Petitioner believed that he was assuming liabilities arising from the business activities of the corporation prior to purchase in the following amounts and for the following reasons: $250,000 to provide merchandise for contracts sold prior to 1972 when the Merchandise Trust Fund Law became effective. $150,000 to the Perpetual Care Trust Fund and the Merchandise Trust Fund attributable to sales made by Petitioner's predecessor in interest but not required to be funded at the time Petitioner purchases the corporation. $140,000 to build a mausoleum which the Petitioner's predecessor in interest had obligated the corporation to build. Accordingly, Petitioner was led to believe that outstanding liabilities of Florida Memorial Cemetery, Inc., at the time of purchase totaled $540,000. However, upon an audit conducted by the Department some time after purchase, Petitioner was made aware that the $150,000 pre-1972 obligation referred to above, was, in fact, approximately $350,000. This misunderstanding was due, at least in part, to Petitioner's failure to audit the books and records of Florida Memorial Cemetery, Inc., prior to purchase. It should be noted here that Petitioner had served as general manager of Florida Memorial Cemetery, Inc., from January 1973 until the time he purchased the corporation in August 1975. Cemetery companies selling burial rights and personal property or services on a pre-need basis are required to maintain percentages of those payments received on a pre-need basis in trust. Funds received from the sale of burial rights are maintained in a fund commonly referred to as the Care and Maintenance Trust Fund. Funds received from the sale of personal property or services are maintained in a fund commonly known as the Merchandise Trust Fund. Counsel for all parties stipulated at the hearing that Florida Memorial Cemetery, Inc., failed to timely deposit trust funds required by Florida law in the following amounts for the following audit periods: From January 1, 1976 to June 30, 1976, the Merchandise Trust Fund was deficient in the amount of $5,051.51. From July 1, 1976 to June 30, 1977, the care and Maintenance Trust Fund was deficient in the amount of $7,076.59, and the Merchandise Trust Fund was deficient in the amount of $17,773.23. From July 1, 1977 to June 30, 1978, the Care and Maintenance Trust Fund was delinquent in the amount of $26,068.60, and the Merchandise Trust Fund was deficient in the amount of $64,693.29. From July 1, 1978 to November 30, 1978, the Care and Maintenance Trust Fund was deficient in the amount of $12,317.20, and the Merchandise Trust Fund was deficient in the amount of $29,457.62. From December 1, 1978 through May 1, 1979, the Care and Maintenance Trust Fund was deficient in the amount of $14,827.82, and the Merchandise Trust Fund was deficient in the amount of $33,355.36. All deficits in the two trust funds described above were brought current within thirty days of notification from the Department. In addition, Florida Memorial Cemetery, Inc., has timely made its trust fund deposits since August 1, 1979, and was, at the time of final hearing in this cause, current on deposits to those trust funds. However, at the time the above-described deficits occurred, Petitioner at all times knew of their existence, knew that deposits into the trust accounts were required to be paid on a monthly basis, and made a business decision not to fund those trust accounts in order to use those funds to meet other obligations of the corporation. These obligations included the construction of a mausoleum which his predecessor in title had obligated the corporation to build, and the necessity for the corporation to purchase new merchandise. At the time the deficits in the two trust accounts existed at Florida Memorial Cemetery, Inc., Petitioner was actively engaged in other business pursuits. Petitioner and another investor purchased three other cemeteries in 1976, and borrowed approximately $75,000 to bring the trust funds of those cemeteries current. These cemeteries were later sold by Petitioner and his co- investors. In addition, in 1978 Petitioner created Florida Cemetery Products, Inc., a company engaged in the manufacture of fiberglass vaults. Petitioner invested $25,000 in this company at the time of its creation. In December 1978 or January 1979, Petitioner formed Florida Memorial Mortuary with an initial investment of $25,000. Finally, in June 1979 Florida Memorial Cemetery, Inc., purchased from Petitioner approximately five acres of land at a purchase price of $200,000, $30,000 of which purchase price was paid in cash to Petitioner. Further, during 1979 Florida Memorial Cemetery, Inc., expended $20,000 to $25,000 for the purchase of statues to be placed on the grounds of the cemetery. All these investment activities were conducted at a time when Petitioner knew of the existence of deficits in the various trusts required to be maintained by Florida Memorial Cemetery, Inc. Since Petitioner took over ownership of Florida Memorial Cemetery, Inc., the amount spent on maintaining the cemetery has more than doubled, new features have been added, more cemetery land has been obtained (a portion of which, as indicated above, was purchased by the corporation from Petitioner), roads have been improved, and the number of ground personnel maintaining the cemetery has been doubled. The current cost of maintaining Florida Memorial Cemetery, Inc., is approximately $80,000 to $90,000 per year. Income on the Care and Maintenance Trust Fund from the cemetery is approximately $30,000 to $40,000 per year, which sum is applied toward maintenance expenses. In the application form required to be filed with the Department in order to obtain authority to transfer an existing cemetery company, there is contained a series of questions. One of the questions inquires as to whether the applicant or any company with which he has been associated as an officer or member has ever been declared bankrupt. On the application form Petitioner answered this question in the negative. However, at final hearing in this cause, Petitioner admitted that he had filed for personal bankruptcy, and had been adjudicated a bankrupt in Tennessee in 1966. In explaining his failure to truthfully answer the Department's inquiry in this regard, Petitioner indicated that that period had been a particularly difficult one in his life, and that he had "wanted to put the past behind me." Another question on the application form inquired as to whether Petitioner had any judgments against him. Petitioner answered this question in the negative. At final hearing in this cause, however, Petitioner testified that he had been contacted by a collection agency or a credit bureau some time in 1973 concerning judgments outstanding in Iowa resulting from the operation of a company called "Midwest Sales." Petitioner takes the position that these judgments, copies of which were not introduced into evidence in this record, were not valid against him because personal service of process on him had not been obtained, and the judgments were for debts of "Midwest Sales." It is, however, clear that Petitioner knew of the existence of some dispute in this connection, and that some judgments might be outstanding against him, but failed to divulge their existence on his application form. Petitioner did not include with his application filed with the Department a map showing land platted for burials in the cemetery which he seeks to acquire. The owners of Royal Palm of St. Petersburg, Inc., the cemetery of which Petitioner seeks to obtain ownership, wish to sell the cemetery to Petitioner. The owners of the cemetery are not actively involved in its management, but receive frequent complaints concerning the maintenance and upkeep of the cemetery. Petitioner has apparently made plans to make capital improvements to and upgrade the maintenance of the cemetery if his application is approved. An unaudited financial statement received into evidence at the final hearing in this cause upon Petitioner's swearing to its accuracy indicates that Petitioner and his wife possessed a net worth of $457,000 as of September 30, 1979. An earlier unaudited financial statement submitted by Petitioner to the Department with the filing of his application indicated the net worth of Petitioner and his wife was $1,616,500 as of December 31, 1978. The earlier financial statement was not sworn as required by the Department's rules. It should also be noted here that Petitioner's wife is not a party to the application here under consideration. The parties to this proceeding submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be issued by the Department of Banking and Finance denying the application of Gene S. Crowe for authority to purchase and acquire control of Royal Palm of St. Petersburg, Inc. RECOMMENDED this 28th day of December 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1979. COPIES FURNISHED: Philip F. Nohrr, Esquire Post Office Box 369 Melbourne, Florida 32901 Laura Bamond, Esquire Office of the Comptroller 1313 Tampa Street Tampa, Florida 33602 Douglas L. Stowell, Esquire Barnett Bank Building Suite 710 Post Office Box 1019 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Dan Shook, owns residential property within the city limits of Dundee, Florida, and now also owns contiguous property that is adjacent to the right-of-way of on the northbound side of Alternate U.S. Highway 27 in Polk County, Florida, a federal aid primary highway. In prior years, the Respondent's land did not include the contiguous property adjacent to Alternate 27. In those prior years, for 17 consecutive years, the prior owner of the contiguous land maintained on the property an outdoor sign advertising Sunken Gardens in St. Petersburg, Florida, facing the northbound traffic on Alternate 27. When legislation was enacted to regulate outdoor advertising along Florida highways, the Sunken Gardens sign was "grandfathered" as a nonconforming use. Over the years, the Sunken Gardens sign fell into disrepair and, apparently in the summer of 1990, the owner of the sign decided to sell the property and abandon its permit for the location. The Respondent bought the property where the old sign was located. The Respondent was living with his wife in one of the mobile homes they owned on his property. When the Respondent bought the property where the sign was located, he planned to put an additional mobile home on the property. He asked the prior owner to remove the old Sunken Gardens sign. According to the Respondent, about four months passed, and the sign was not removed. On September 26, 1990, the Respondent contacted Sunken Gardens advertising and asked for permission to remove the sign himself, which permission was granted. The Respondent also agreed to physically remove the permit tag from the old sign and return it to Sunken Gardens so that Sunken Gardens could return the permit to the DOT, together with the required affidavit to effect the cancellation and termination of the permit. The Respondent asked for and got a letter of confirmation which stated in part that "Sunken Gardens hereby grants you all rights and ownership to remove, destroy and dispose of" the sign. Neither party intended that the Respondent was being given the right to do anything but to remove the sign from the property so that the Respondent could go forward with his plans to put a mobile home on the property. The Respondent returned the permit tag to Sunken Gardens, as agreed. But before removing the sign, the Respondent changed his mind. He had long been in the business of selling and installing mobile home supplies, accessories and certain home improvements. He operated the business out of his home on the property. But, in order to increase his business and give his wife an additional source of income, he decided to open a mobile home supplies store in downtown Dundee, about a mile away. He decided to, and did, use the serviceable parts of the old Sunken Gardens sign and rebuild and repaint the sign to advertise: "Dan Shook MOBILE HOME SUPPLIES WINDOWS - DOORS - SHUTTERS - SIDING - CARPORTS - FLORIDA ROOMS - SCREEN ROOMS - 1 MI. AHEAD DOWNTOWN DUNDEE." Meanwhile, on or about October 17, 1990, Sunken Gardens submitted to the DOT an affidavit on an official DOT form representing that the tag permit for the old Sunken Gardens sign was being returned to the DOT and that the sign was being removed due to the property changing hands. After receipt of the Sunken Gardens affidavit, the DOT inspected the site to be sure that the sign had been removed, as represented, and found the Respondent's new sign in its place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order sustaining Notice of Violation 1-16-100 and requiring that the Respondent's sign be removed. RECOMMENDED this 16th day of April, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1991. COPIES FURNISHED: Vernon L. Whittier, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Dan Shook 6002 Scenic Highway Dundee, Florida 33838 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact 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.
Findings Of Fact Stipulated facts In their prehearing stipulation, the parties stipulated to the following facts: Our Lady of Mercy Catholic Cemetery in Dade and Our Lady Queen of Heaven Catholic Cemetery in Broward were both owned and operated or dedicated by the Catholic Church prior to June 23, 1976. The Petitioner does not own sufficient land contiguous to the present existing cemetery operations to allow expansion. The title to the cemeteries presently operating in both Broward and Dade to-wit Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is in Archbishop Edward A. McCarthy and the Catholic Cemeteries is the corporation in which the Archbishop is the sole member and this corporation was formed for the expressed purpose of operating the cemeteries. The alternate sites proposed by the Catholic Cemeteries to-wit Our Lady of Mercy South approximately 115 acres in size and Our Lady Queen of Heaven West approximately 115 acres in size were neither owned, operated nor dedicated by the Catholic Church prior to June 23, 1976. The petitioner wishes to develop those alternate parcels of land for cemetery opera- tions and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner. The existing Catholic cemeteries and the proposed alternate sites, if approved, will provide full at-need and pre-need cemetery products and services, including ground, urn and mausoleum burial, vault and memorial sales and installation, opening and closing, etc., as well as appropriate Catholic rituals, as required by church law and teaching. The approximate gross dollar sales of pre-need and at-need services and merchandise for 1989 was 4 1/2 million dollars. There is about a 10% increase in gross dollar sales for each succeeding year over the previous year. Members of the Catholic faith are buried in virtually every cemetery in Dade and Broward counties, except those that limit burials to members of a particular religious faith. Forest Lawn South is a licensed for profit cemetery located at 21401 Southwest 64th Street, Fort Lauderdale, Florida (305)792-9360, is approximately six (6) to seven (7) miles east of the proposed Broward County expansion and approximately nine (9) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Pinelawn Cemetery is a licensed for profit cemetery located at 13900 Southwest 117th Avenue, Miami, Florida (305)446-2922, is approximately five (5) miles east of the proposed Dade County expansion and approxi- mately ten (10) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Woodlawn Park South is a licensed for profit cemetery located at 11600 Southwest 112th Street, Miami, Florida (305)238-3672, is approximately five (5) miles northeast of the proposed Dade County expansion and approximately eleven (11) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. It costs a minimum of $459,647.00 annually to maintain the developed acreage at both Our Lady of Mercy Cemetery and Our Lady Queen of Heaven Cemetery. At the time of purchase of Our Lady of Mercy, the purchase was for 256 acres and in 1972, 128 acres were sold leaving a 128 acre cemetery of which 61 acres remain undeveloped. Our Lady Queen of Heaven Cemetery in Broward County was 120 acres in size of which 65 acres remain undeveloped. The approximate distance between the existing cemetery Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is approximately 20 miles. The distance between each of the existing cemeteries and the proposed alternate sites on a straight line is approx- imately 10 miles. The distance, driving by car, using the shortest reasonable route, is 17.5 miles between Our Lady of Mercy and the proposed South Dade site, and 16.3 miles between Our Lady Queen of Heaven and its proposed Davie (Broward) site. The Archdiocese of Miami covers all of Dade, Broward and Monroe Counties and the Archdiocese considers the area of service to cover the entire Archdiocese. The Archdiocese of Miami by and through its agent Catholic Cemeteries has not applied for a license for either of the proposed alternate sites. Lakeside Memorial Park, a private commercial cemetery restricted to Jewish burials is licensed by the Division of Finance, Department of Banking and Finance and is not operated, owned or controlled by any church or synagogue. Woodlawn Park, an old established private, commercial licensed cemetery in Miami, desired to expand to a separate location more than ten (10) miles away. A separate license to operate that extension cemetery known as Woodlawn South was issued. At the time of licensure of Woodlawn South, a separate corporation from Woodlawn Park, the majority of stock of both corporations was held by the Sharp family. However, the minority stockholders were different. The holding company owning Miami Memorial Park, Flagler Memorial Park and Dade Memorial Park was issued a separate license for its expansion cemetery known as Dade South Memorial Park. None of these cemeteries are owned, operated or controlled by churches or synagogues. There are existing, unlicensed church cemeteries which are exempt under Sec. 497.003, F.S. If such expansions of cemeteries grandfathered pursuant to Sec. 497.004, F.S., have occurred, the Department would not have required these expansions to obtain a license if such expansions were on contiguous property separated by no more than a road. However, it is the established and enforced policy of the Department of Banking and Finance, Division of Finance, to require separate application and proof of need for each proposed cemetery site which is not contiguous to an existing licensed cemetery. In determining need, the Department compares the number of available spaces with the projected burials over a thirty year period. The Memorial Sunset Park case is on appeal to the First District Court of Appeal (Tallahassee). The issue of whether there is a need for these alternate parcels pursuant to Sec. 497.006 is not an issue in this case. The Catholic Cemeteries has not applied for a license and, in fact, takes the position that it is a violation of the religion clauses to require it to apply for such an application and that its alternate parcels are exempt from regulation. Petitioner acknowledges that should Petitioner in the future file an application for license, thus requiring a showing of need, said proceeding will be a de novo hearing. Additional facts established at hearing. South Dade Palms Memorial Park in Dade County, which operates Palms Memorial Park, provides for the burial of persons of all faiths, including those of the Roman Catholic faith. The rites of the Roman Catholic Church are conducted both on the cemetery grounds and in the mausoleum chapel when appropriate. The cemetery has in the past and presently is accepting Roman Catholics for burial, and will continue to do so in the future. Memorial Sales, Inc., which operates Miami Memorial Park, Flagler Memorial Park, Dade Memorial Park, and Dade South Memorial Park (which is 9.5 driving miles from the Dade Alternate Parcel) provides for the burial of persons of all faiths, including those of the Roman Catholic faith. Each of these cemeteries has in the past and presently are accepting Roman Catholics for burial, and will continue to do so in the future. All rites of the Roman Catholic Church may be performed at graveside or at any structure available on the cemeteries for such purposes. The Department of Banking and Finance, through its Division of Finance, has inspected the cemeteries known as Our Lady of Mercy and Our Lady Queen of Heaven. The inspection revealed that the cemeteries are maintained in immaculate condition by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., possesses the only cemeteries in Dade and Broward Counties that exclusively furnish burial services to Catholics. Only persons of the Catholic faith and their families are buried in cemeteries operated by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., previously engaged an independent contractor, E.C. Wesner and Associates, Inc., of Margate, Florida, to sell pre- need cemetery burial rights and merchandise for the existing cemeteries operated by Petitioner. The authority and personal responsibility of Archbishop McCarthy for the Catholic Cemeteries are set by the Code of Canon Law, which is promulgated under the authority of the Pope. The Archbishop is personally charged with maintaining, under Church law, the appropriate norms on the discipline to be observed in cemeteries, especially with regard to protecting and fostering their sacred character. 3/ In the cemeteries operated by Catholic Cemeteries, Inc., religious services are frequently held at the grave sites, and all of the cemeteries have altars and religious shrines located throughout the cemetery grounds where members of the Catholic Church come to pray seven days a week. Additionally, the cemeteries celebrate Catholic Mass on the premises each year during Memorial Day and All Souls' Day and on other significant days in the liturgical life of the Catholic Church. Catholic Cemeteries, Inc., does not sell cemetery lots. Rather, Catholic Cemeteries, Inc., sells licenses for entombment. Because of the important role of the cemeteries in the Roman Catholic religion, the availability of those licenses is limited to Members of the Catholic Church and their family members. Pursuant to the Code of Canon Law, Catholic cemeteries are sacred places to be used for worship and burial of members of the Roman Catholic Church. Such services are conducted according to the official rites of the Church. The Catholic cemetery, like the parish church, is an important part of Catholic life and religious practice. Catholic Cemeteries, Inc., is a religious institution and constitutes an integral part of the religious mission of the Catholic Church. The religious practices and beliefs of Petitioner are of great importance to Petitioner and should be accorded the utmost respect. According to Guidelines for Funeral Rites in the Catholic Church (hereinafter "Guidelines"), "the preferred place for the burial of Catholics is a Catholic cemetery." However, there are at least four "circumstances [which] have for some time permitted burial of Catholics in a non-Catholic cemetery even where Catholic cemeteries are available. . . . Other circumstances of a pastoral nature [justifying the burial of Catholics in a non-Catholic cemetery] may exist in various areas of the country." Accordingly, it is not impermissible for Catholics to be buried in non-Catholic cemeteries, provided the individual grave site has been appropriately blessed. This flexibility by the Catholic Church in accommodating parishioners is evidenced by the stipulated fact that members of the Catholic faith are buried in virtually every cemetery in Dade and Broward Counties, except those that limit burials to members of a particular religious faith. The Petitioner has previously attempted to challenge the constitutionality of Chapter 497, Florida Statutes, in a federal court proceeding. That challenge was dismissed for lack of standing.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Declaratory Statement on the grounds that the issues raised by the petition are inappropriate for disposition in a declaratory statement proceeding under Section 120.565, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of October 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1991.
The Issue Whether the Funeral Director's license and/or the Embalmer's License of Donald B. Johns should be suspended or revoked. Whether the license of the Donald B. Johns Funeral Home should be suspended or revoked.
Findings Of Fact The Respondent, Donald B. Johns, holds a Funeral Director's license, No. 1473, and an Embalmer's license, No. 1633. The Donald B. Johns Funeral Home is licensed as No. 827. A complaint was filed against Respondent by Petitioner for the violation of Section 470.10(6), 470.12(1)(k), and 470.12(2)(p), Florida Statutes, and the Respondent Donald B. Johns Funeral Home was charged with violations of Section 470.12(4)(a), 470.12(4)(c), and 470.30(6), Florida Statutes. A request for a formal hearing for an appointment of a hearing officer was made by the Respondent, Donald B. Johns, and the Petitioner, State Board of Funeral Directors and Embalmers, petitioned for this hearing. Notice to appear were duly sent to the parties. Mr. and Mrs. James Jesse and the decedent's grandmother, Mrs. Jesse, contacted the Donald B. Johns Funeral Home in arranging for the funeral of the decedent, Jason Jesse, an infant. The Respondent, Donald B. Johns, as the funeral director and embalmer, appointed one Thomas Davis to make the arrangements for said funeral. The negotiations and arrangements included meeting the family at the funeral home; inquiry as to the desired services; quotation of the costs thereof; showing the family a casket catalog and ordering a casket for the family; requiring the family to complete the paperwork for the cremation; offering a cremation urn for sale; arranging a viewing for the family at the funeral home; advising the family on the availability of services at the cemetery selected by the family; discussing the availability of a sign-in book and name cards at the funeral home; attending services at the church; and attempting to correct defects in the casket and presentation of the body at the viewing. The Respondent Donald B. Johns was aware of and permitted Thomas Davis to handle the funeral arrangements on behalf of the funeral home which the Respondent owned and operated as the licensed funeral director in charge, when he knew that said Thomas Davis was only an attendant and not licensed as a funeral director. The funeral arrangements were not satisfactory to the family of the decedent and there were misunderstandings and unnecessary and trying experiences for the family.
Recommendation Revoke the licenses of Donald B. Johns and the Donald B. Johns Funeral Home, impose a fine under Section 470.34 in an amount not to exceed $1,000.00. DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire 1300 Florida Title Building Jacksonville Florida 32202 Donald B. Johns 3890 Andrews Avenue Ft. Lauderdale, Florida 33309
The Issue 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
