10-009189 Rafaiy Alkhalifa vs. Department Of Financial Services Status: Closed Recommended Order on Wednesday, August 17, 2011.

Summary: "Deemer" provison not triggered because of timely verbal denial of application. Competing claims to a license following divorce should be resolved by court.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAFAIY ALKHALIFA , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9189

)

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Respondent, )

)

and )

)

ZABIDA HASIN AND FUNERARIA LA )

CUBANA, INC., )

)

Intervenor s, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 5, 2011, at Tallahassee, Florida, before

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings (DOAH). Following Judge Hunter's

retirement, the case was transferred to Administrative Law Judge

Claude B. Arrington pursuant to section 120.57(1)(a), Florida

Statutes, for all further proceedings, including the entry of

the recommended order. 1

APPEARANCES

For Petitioner: Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312

For Respondent: Thomas A. David, Esquire

Department of Financial Ser vices

200 East Gaines Street

Tallahassee, Florida 32399

For Intervenor: Melanie A. Cambridge, Esquire

444 Brickell Avenue, Suite 700

Miami, Florida 33131

STATE MENT OF 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.

PRELIMINARY STATEMENT

On December 1, 2009, Petitioner filed two forms with

Respondent. One form was filed to change the name of the

funeral home operating pursuant to the subject license and the

other was to change its location. During a telephone call on or

about January 15, 2010, Respondent's staff person informed

Petitioner's counsel that the forms were not being processed

because Petitioner was not the owner of the funeral

establishment operating pursuant to the subject license.

On June 7, 2010, Petitioner filed a notice t o claim the

subject license by default due to Respondent's inaction.

Petitioner predicates his claim on the " deemer " provision of

s ection 120.60(1). Respondent contends: (1) that the forms

filed by Petitioner were not applications; (2) that Petitioner

di d not own the establishment he wished to rename and relocate

based on the terms of a marital settlement agreement with his

ex - wife (the Mediated Marital Settlement Agreement, referred to

herein as MMSA); and (3) that the " deemer " provision was not

triggered because Respondent's staff person told Petitioner's

attorney that Respondent would not process Petitioner's forms

because Petitioner was not the owner of the funeral home

operating pursuant to the subject license.

At the formal hearing, Petitioner testified on his own

behalf and presented the testimony of Jasmin Richardson, a

financial examiner with Respondent's Division of Funeral,

Cemetery, and Consumer Services. Respondent also presented the

direct testimony of Ms. Richardso n. Joint Exhibits 1 - 5 were

received in evidence. Respondent's Exhibits A - H were also

received in evidence. Proposed Recommended Orders (PROs) were

filed on February 8, 2011.

On March 11, 2011, Judge Hunter, having reviewed the

arguments set forth in t he PROs, determined that a decision

concerning the rights of the parties could also affect the

substantial interests of a non - party. Accordingly, an Order

Requiring Notice Pursuant to Florida Administrative Code Rule

28 - 106.109, was issued. As required b y the order, Respondent,

on March 11, 2011, gave notice of the Right to Intervene to

Zabida Hasin (Petitioner's ex - wife).

After requesting an extension of time, Ms. Hasin and

Funeraria La Cubana, Inc. (La Cubana) , filed their response to

the notice, which Judge Hunter treated as a petition to

intervene. By order entered by Judge Hunter on April 18, 2011,

Ms. Hasin and La Cubana were granted status as Intervenors. In

their response, Intervenors generally pled the affirmative

defenses of laches, equitable e stoppels, res judicata, unclean

hands, issue in fact preclusion, and collateral estoppel.

Intervenors base their defenses on the MMSA , which was

incorporated by reference in the final judgment dissolving the

marriage of Petitioner and Ms. Hasin. Petition er asserts that

the MMSA had no effect on the subject license.

On April 22, 2011, Judge Hunter issued an Order Allowing

Legal Memoranda to allow the parties the opportunity to submit

legal arguments in favor of their respective positions. The

Order noted that " The parties offered no legal support for their

positions. " Judge Hunter set May 5, 2011, as the deadline for

the submission of memoranda. Petitioner and Respondent

submitted memoranda prior to the deadline, but Intervenors did

not.

A Transcript of the proceedings, consisting of one volume,

was filed on January 19, 2011. The PROs submitted by the

Petitioner and the Respondent and their memoranda have been duly

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF F ACT

1. 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.

2. 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 DP R 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.

3. On October 1, 2005, the leg islature 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

4. 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.

5. The DFS Board relies on filings with the Florida

Department of St ate, Division of Corporations (Division of

Corporations), to verify the corporate status of funeral

establishments.

6. 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.

7. 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.

8. From 2000 through 2002, Delia Kennedy was the

registered agent for La Cubana and Ms. Hasin was the sole

officer/director.

9. On January 24, 2002, Petitioner and Ms. Hasin were

married. They separated two years later.

10. 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.

11. Petitioner filed a n 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.

12. 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.

13. In 2005, Petitioner file d 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 (u sing 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.

14. The MSMA recited that the parties owne d 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 requi red to

operate La Cubana or the licenses of any of the other listed

corporations.

15. 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 connect ed with

them . . . . "

16. 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

inst ruments 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.

17. The MMSA provided Petitioner with an option to

repur chase La Cubana for $150,000 by 5:00 p.m. on August 18,

2009. Petitioner did not exercise that option.

18. 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 - rec ord in the DFS Board's

database for the subject license fr om Petitioner's name to

Ms. Hasin's name.

19. 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, F L 330210.

Ms. Richardson testified that she processed the request. 3

20. 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.

21. 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 l ocate 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., Holly wood, F L 33021.

22. 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.

23. Petitioner checked the follo wing representation on the

form: " Applicant is unable to attach the original of its

c ertificate 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. Ha sin operated.

24. 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 inf ormation

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. "

25. The two forms submitted by Petitioner on December 1,

2009, reached the de sk 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.

2 6. 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.

27. 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 s ection 120.57.

28. O n 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 e stablishment 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.

CONCLUSIONS OF LAW

29. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569 and

120.57(1).

30. This is a de novo proceeding designed to formulate

final agency action. See Hamilton Cnty Bd. of Cnty Comm'rs v.

Dep't. Envt'l Reg. , 587 So. 2d 1378 (Fla. 1st DCA 1991) and

section 120.57(1)(k) .

31. Respondent asserts that the papers submitted by

Petitioner were not applications, but were forms. Relying on

Florida Administrative Code Rule 69K - 1.001, Respondent argues

that the agency has distinguished between a n " application " and a

" form " as follows:

69K - 1.001 List of Approved Forms;

Incorporation by Reference.

The following forms are hereby adopted and

incorporated by reference, and can be

obtained from the Department . . .

* * *

(64) DFS - N1 - 1748, " A pplication for Funeral

Establishment License, " Rev. 10 - 06.

* * *

(80) DFS - N1 - 1764, " Change of Name & Request

for Revised License Certificate - Entities, "

Eff. 10 - 06.

* * *

(99) DFS - N1 - 2001, " Notice of Change in

Location of Funeral Establ ishment, " Eff.

10/09.

32. The forms Petitioner filed with the DFS Board sought

authorization to move a license to another location and the

issuance of a revised license with a change in the name of the

licensee. These actions cannot lawfully occur without DFS Board

approval. Respondent's argument that these forms are not

applications is rejected. The nature of the action required,

rather than the name of a document, should be determinative of

whether or not a form is also an application. Because the forms

requested specifi ed approvals by the DFS Board, the forms are

construed by the undersigned to be applications.

33. As the applicant, Petitioner has the burden of proving

his entitlement to the relief he seeks by a preponderance of the

evidence. See Dep't of Banking and Fin. v. Osborne Stern , 670

So. 2d. 932 (Fla. 1996) and Dep't of Transp. v. J. W. C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

34. A " preponderance " of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemn . Co. v.

Perry , 5 So. 2d 862 (Fla. 1942).

35. Section 120.60 pertains to applications for licenses.

To determine whether the applications submitted by Petitioner

were applications for licenses within the meaning of section

120.60, the definition of the term " license , " set forth in

s ection 497.005(40), has been considered. That definition is as

follows:

(40) " License " includes all authorizations

required or issued under this chapter,

except where expressly indicated otherwise,

and shall be understood to include

authorizat ions previously referred to as

registrations or certificates of authority

in chapters 470 and 497 as those chapters

appeared in the 2004 edition of the Florida

Statutes.

36. Because the definition of the term " license " includes

" all authorization requir ed or issued, " the authorizations

requested by Petitioner as to the subject license are construed

to be license applications within the meaning of section

120.60(1).

37. Section 120.60 provides, in relevant part, as follows:

(1) . . . An application for a license

must be approved or denied within 90 days

after receipt of a completed application

unless a shorter period of time for agency

action is provided by law. The 90 - day time

period is tolled by the initiation of a

proceeding under ss. 120.569 and 120.57 .

Any application for a license which is not

approved or denied within the 90 - day or

shorter time period, within 15 days a fter

conclusion of a public hearing held on the

application, or within 45 days after a

recommended order is submitted to the agency

and the parties, whichever action and

timeframe is latest and applicable, is

considered approved unless the recommended

orde r recommends that the agency deny the

license. È Any applicant for licensure

seeking to claim licensure by default under

this subsection shall notify the agency

clerk of the licensing agency, in writing,

of the intent to rely upon the default

license pro vision of this subsection, and

may not take any action based upon the

default license until after receipt of such

notice by the agency clerk.

* * *

(3) Each applicant shall be given written

notice, personally or by mail, that the

agency intends t o grant or deny, or has

granted or denied, the application for

license . The notice must state with

particularity the grounds or basis for the

issuance or denial of the license, except

when issuance is a ministerial act. Unless

waived, a copy of the notic e shall be

delivered or mailed to each partyÓs attorney

of record and to each person who has made a

written request for notice of agency action.

Each notice must inform the recipient of the

basis for the agency decision, inform the

recipient of any admini strative hearing

pursuant to ss. 120.569 and 120.57 or

judicial review pursuant to s. 120.68 which

may be available, indicate the procedure

that must be followed, and state the

applicable time limits. The issuing agency

shall certify the date the notice w as mailed

or delivered, and the notice and the

certification must be filed with the agency

clerk.

38. The court addressed the " deemer " provision in Sumner

v. Dep't of Prof'l Reg., Bd of Psychological Examiners , 55 So.

2d 919 (Fla. 1st DCA 1990). Sumner appealed the denial of her

application for certification to take a licensure examination.

She was told by telephone within the 90 - day period that her

application had been denied. She received a written denial

after the 90 - day period had lapsed. In explaining that the

verbal notice was sufficient to prevent the " deemer " provision

from being triggered, the court stated as follows at 921:

We agree with the Board that the deemer

provisions of section 120.60(2) doe s not

incorporate the written notice requirements

of section 120.60(3) so that the Board was

required to file its written notice of

intent to deny within ninety days after

receipt of Sumner's application. If the

legislature had intended to specifically

re quire written notice within ninety days,

it would have been a simple matter to have

inserted the limitation in the statute.

. . .

39. The court in State Dep't of Trans. v. Calusa Trace

Dev., Corp. 571 So. 2d 543 (Fla. 4th DCA 1990) agreed with the

rati onale expressed in Sumner in answering in the negative the

following question: " Does section 120.60(2) require the DOT to

grant or deny a connection permit in writing within ninety days

after receipt of that application; otherwise, the application is

deem ed approved. " In that case, a DOT official told a

representative of the applicant that the application was denied

within the 90 - day period, but there was no written denial within

the 90 - day period.

40. The court in Sumner was dealing with subsections

120 .60(2) and (3), Florida Statutes (1987), and the court in

Calusa Trace dealing with subsections 120.60(2) and (3), Florida

Statutes (1989). There are no material differences between the

version of the statutes at issue in those cases and the version

of th e statute at issue in this case.

41. Based on the foregoing, it is concluded that the

" deemer " of section 120.60(1) has not been triggered in this

case because Ms. Richardson told Petitioner's counsel within the

90 - day period that the applications were not going to be

processed.

42. Section 497.141(10) provides:

(10) No license issued under this chapter

shall be assignable or transferable except

to the extent specifically provided by this

chapter.

43. Even if one were to accept Petitioner's argument that

Ms. Richardson improperly transferred the subject license out of

Petitioner's name because t he license had been issued to

Petitioner as an individual and not to a corporation,

Petitioner's applications should nevertheless be denied. It is

clear to the undersigned that the subject license was an asset

" connected with " La Cubana within the meaning of the MMSA, and

it is also clear that Petitioner would be required by the terms

of the MMSA to sign all appropriate paperwork necessary to

legally complete the transfer. The DFS Board correctly

determined that Ms. Hasin is the equitable owner of the sub ject

license and is the owner of the corporate entity. The DFS Board

should deny any transfer of the subject license until the

competing claims of Petitioner and Ms. Hasin to ownership of the

subject license have been resolved by a court of competent

juri sdiction.

44. The applications should also be denied because

Petitioner falsely represented that the license had been lost,

stolen , or destroyed.

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 1 7 th 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 1 7 th day of August 2011.

ENDNOTES

1 Section 120.57(1)(a) provides, in relevant part as follows:

"If the administrative law judge assigned to a hearing becomes

unavailable, the division shall assign another administrative

law judge who shall use any existing record and r eceive any

additional evidence or argument, if any, which the new

administrative law judge finds necessary." The undersigned,

having reviewed the pleadings, transcript, and exhibits has

concluded that no further proceeding is necessary prior to the

entry of the Recommended Order. All statutory references are to

Florida Statutes (2011).

2 This legislative action was a part of chapter 2004 - 301, Laws

of Florida. Section 497.101 created the Board of Funeral,

Cemetery, and Consumer Services within the Depar tment of

Financial Services.

3 The undersigned construes that testimony to mean that the

request was granted and the license was changed from the name La

Cubana to the name Funeraria Hialeah Memorial, Inc. The record

is not clear as to why Funeraria H ialeah Memorial, Inc., did not

intervene as the successor in interest to La Cubana. That

intervention would not have changed the conclusions contained

herein.

COPIES FURNISHED:

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

Thomas A. David, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 T imberlane Road, Suite 102 - A

Tallahassee, Florida 32312

Melanie A. Cambridge, Esquire

444 Brickell Avenue, Suite 700

Miami, Florida 33131

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.