The Florida Senate

CHAPTER 497
FUNERAL AND CEMETERY SERVICES

497.001  Short title.

497.002  Purpose and intent.

497.003  Cemeteries; exemption; investigation and mediation.

497.004  Existing companies, effect of this chapter.

497.005  Definitions.

497.025  Liability.

497.0255  Duty of care and maintenance of licensed cemetery.

497.101  Board of Funeral and Cemetery Services; membership; appointment; terms.

497.103  Rulemaking authority of board and department.

497.105  Department of Banking and Finance; powers and duties.

497.107  Headquarters.

497.109  Board of Funeral and Cemetery Services; membership.

497.111  Publication of information.

497.113  Accountability and liability of board members.

497.115  Board rules; final agency action; challenges.

497.117  Legal and investigative services.

497.119  Mediation.

497.121  Authority to issue citations.

497.123  Powers to administer oaths and issue subpoenas.

497.125  Evidence; examiner's worksheets, investigative reports, other related documents.

497.127  Injunction to restrain violations.

497.129  Cease and desist order; civil penalty; enforcement.

497.131  Disciplinary proceedings.

497.133  Disciplinary guidelines.

497.135  Penalty for giving false information.

497.137  Unlicensed activity; emergency cease and desist order; administrative penalty; civil penalty; enforcement; attorney's fees and costs.

497.201  Cemetery companies; license; application; fee.

497.205  License not assignable or transferable.

497.209  Application for change of control among existing stockholders or partners; investigation fee.

497.213  Annual license fees.

497.217  Department rules; challenges.

497.221  Cease and desist orders.

497.225  Civil penalty.

497.229  Courts; powers; abatement of nuisances.

497.233  Disciplinary proceedings.

497.237  Care and maintenance trust fund; remedy of department for noncompliance.

497.241  Disposition of income of care and maintenance trust fund; notice to purchasers and depositors.

497.245  Care and maintenance trust fund, percentage of payments for burial rights to be deposited.

497.249  Care and maintenance trust fund; financial reports.

497.253  Minimum acreage; sale or disposition of cemetery lands.

497.255  Standards for construction and significant alteration or renovation of mausoleums and columbaria.

497.257  Construction of mausoleums, columbaria, and belowground crypts; preconstruction trust fund; compliance requirement.

497.301  Toll-free telephone number for complaints.

497.305  Cemetery companies; authorized functions.

497.309  Records.

497.313  Other charges.

497.317  Monuments; installation fees.

497.321  Solicitation of goods or services.

497.325  Illegal tying arrangements.

497.329  Registration of brokers of burial rights.

497.333  Disclosure of information to public.

497.337  Prohibition on sale of personal property or services.

497.341  Burial without regard to race or color.

497.345  Abandoned cemeteries; immunity; actions.

497.349  Inactive cemeteries.

497.353  Owners to provide addresses; presumption of abandonment; abandonment procedures; sale of abandoned unused burial rights.

497.357  Report of identification of exempt cemeteries.

497.361  Registration of monument establishments.

497.401  Preneed sales; chapter exclusive; applicability of other laws.

497.403  Insurance business not authorized.

497.405  Certificate of authority required.

497.407  Certificate of authority; annual statement; renewal; transfer.

497.409  Approval of forms.

497.411  Nonconforming contracts.

497.413  Preneed Funeral Contract Consumer Protection Trust Fund.

497.415  Ownership of proceeds received on contracts.

497.417  Disposition of proceeds received on contracts.

497.419  Cancellation of, or default on, preneed contracts.

497.421  Payment of funds upon death of named beneficiary.

497.423  Evidence of financial responsibility as alternative to trust deposit.

497.425  Alternatives to deposits under s. 497.417.

497.427  Existing merchandise trust funds; proof of compliance with law.

497.429  Alternative preneed contracts.

497.431  Examinations and investigations.

497.435  Administrative fine in lieu of revocation or suspension of certificate of authority.

497.436  Inactive and revoked certificateholders.

497.437  Dissolution or liquidation.

497.439  Preneed sales agents.

497.441  Acceptability of funeral and burial merchandise.

497.443  Unfair methods of competition and unfair or deceptive acts or practices prohibited.

497.445  Unfair methods of competition and unfair or deceptive acts or practices defined.

497.447  Prohibited practices; hearings, witnesses, appearances, production of books, and service of process.

497.515  Additional prohibited acts.

497.517  Attorney's fees.

497.519  Penalties.

497.525  Disposition of fees and penalties.

497.527  Civil remedies.

497.529  Civil liability.

497.531  Unauthorized arrangements.

497.001  Short title.--This chapter may be cited as the "Florida Funeral and Cemetery Services Act."

History.--s. 1, ch. 59-363; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 36, 122, ch. 93-399.

Note.--Former s. 559.30.

497.002  Purpose and intent.--

(1)  The Legislature recognizes that purchasers of preneed burial rights, funeral or burial merchandise, or funeral or burial services may suffer serious economic harm if purchase money is not set aside for future use as intended by the purchaser and that the failure to maintain cemetery grounds properly may cause significant emotional stress. Therefore, it is necessary in the interest of the public welfare to regulate certificateholders, licensees, registrants, and cemetery companies in this state. However, restrictions shall be imposed only to the extent necessary to protect the public from significant or discernible harm or damage and not in a manner which will unreasonably affect the competitive market.

(2)  Subject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements. Accordingly, unless otherwise stated herein, it is the Legislature's express intent that nothing contained in this chapter should be construed or interpreted in any manner as to subject preneed contract purchasers to federal income taxation under the grantor trust rules contained in ss. 671 et seq. of the Internal Revenue Code of 1986, as amended.

History.--ss. 2, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 37, 122, ch. 93-399; s. 1, ch. 96-400; s. 1141, ch. 97-103.

Note.--Former s. 559.305.

497.003  Cemeteries; exemption; investigation and mediation.--

(1)  The provisions of this chapter relating to cemeteries and all rules adopted pursuant thereto shall apply to all cemeteries except for:

(a)  Religious institution cemeteries of less than 5 acres which provide only single-level ground burial.

(b)  County and municipal cemeteries.

(c)  Community and nonprofit association cemeteries which provide only single-level ground burial and do not sell burial spaces or burial merchandise.

(d)  Cemeteries owned and operated or dedicated by a religious institution prior to June 23, 1976.

(e)  Cemeteries beneficially owned and operated since July 1, 1915, by a fraternal organization or its corporate agent.

(f)  A columbarium consisting of less than one-half acre which is owned by and immediately contiguous to an existing religious institution facility and is subject to local government zoning. The religious institution establishing such a columbarium shall ensure that the columbarium is perpetually kept and maintained in a manner consistent with the intent of this chapter. If the religious institution relocates, the religious institution shall relocate all of the urns and remains placed in the columbarium which were placed therein during its use by the religious institution.

(g)  Family cemeteries of less than 2 acres which do not sell burial spaces or burial merchandise.

(h)  A mausoleum consisting of 2 acres or less which is owned by and immediately contiguous to an existing religious institution facility and is subject to local government zoning. The religious institution establishing such a mausoleum must ensure that the mausoleum is kept and maintained in a manner consistent with the intent of this chapter and limit its availability to members of the religious institution. The religious institution establishing such a mausoleum must have been incorporated for at least 25 years and must have sufficient funds in an endowment fund to cover the costs of construction of the mausoleum.

(2)  Section 497.309(1) as to burial records, and ss. 497.321, 497.325, 497.341, and 497.345 apply to all cemeteries in this state.

(3)  All cemeteries exempted under this chapter which are in excess of 5 acres must submit to the following investigation and mediation procedure by the department in the event of a consumer complaint:

(a)  The exempt cemetery shall make every effort to first resolve a consumer complaint;

(b)  If the complaint is not resolved, the exempt cemetery shall advise the consumer of the right to seek investigation and mediation by the department;

(c)  If the department receives a complaint, it shall attempt to resolve it telephonically with the parties involved;

(d)  If the complaint still is not resolved, the department shall conduct an investigation and mediate the complaint;

(e)  If the department conducts an onsite investigation and face-to-face mediation with the parties, it may charge the exempt cemetery a single investigation and mediation fee not to exceed $300, which fee shall be set by rule and shall be calculated on an hourly basis; and

(f)  If all attempts to resolve the consumer complaint fail, the cemetery shall be subject to proceedings for penalties and discipline under this chapter.

(4)  Any religious-institution-owned cemetery that is exempt under paragraph (1)(d), is located in a county with a population of at least 1.3 million persons on July 1, 1996, and was selling merchandise and services to the religious institution's members prior to October 1, 1993, may establish one additional exempt cemetery in such county after December 31, 2020, without establishing need under s. 497.201.

(5)  Any religious-institution-owned cemetery exempt under subsection (1), except those cemeteries qualifying under paragraph (1)(d), which becomes affiliated with a commercial enterprise must meet the requirements of s. 497.201.

History.--s. 2, ch. 59-363; s. 1, ch. 65-570; s. 3, ch. 76-168; s. 1, ch. 76-251; s. 1, ch. 77-457; ss. 3, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 85-202; s. 1, ch. 89-8; ss. 38, 122, ch. 93-399; s. 2, ch. 96-400; s. 1, ch. 2000-195.

Note.--Former s. 559.31.

497.004  Existing companies, effect of this chapter.--Cemetery companies existing on October 1, 1993, shall continue in full force and effect but shall be operated in accordance with the provisions of this chapter.

History.--s. 6, ch. 59-363; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 7, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 39, 122, ch. 93-399.

Note.--Former ss. 559.35, 559.315.

497.005  Definitions.--As used in this chapter:

(1)  "At-need solicitation" means any uninvited contact by a licensee or her or his agent for the purpose of the sale of burial services or merchandise to the family or next of kin of a person after her or his death has occurred.

(2)  "Bank of belowground crypts" means any construction unit of belowground crypts which is acceptable to the department and which a cemetery uses to initiate its belowground crypt program or to add to existing belowground crypt structures.

(3)  "Belowground crypts" consist of interment space in preplaced chambers, either side by side or multiple depth, covered by earth and sod and known also as "lawn crypts," "westminsters," or "turf-top crypts."

(4)  "Board" means the Board of Funeral and Cemetery Services.

(5)  "Burial merchandise," "funeral merchandise," or "merchandise" means any personal property offered or sold by any person for use in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains.

(6)  "Burial right" means the right to use a grave space, mausoleum, or columbarium for the interment, entombment, or inurnment of human remains.

(7)  "Burial service," "funeral service," or "service" means any service offered or provided by any person in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains.

(8)  "Care and maintenance" means the perpetual process of keeping a cemetery and its lots, graves, grounds, landscaping, roads, paths, parking lots, fences, mausoleums, columbaria, vaults, crypts, utilities, and other improvements, structures, and embellishments in a well-cared-for and dignified condition, so that the cemetery does not become a nuisance or place of reproach and desolation in the community. As specified in the rules of the board, "care and maintenance" may include, but is not limited to, any or all of the following activities: mowing the grass at reasonable intervals; raking and cleaning the grave spaces and adjacent areas; pruning of shrubs and trees; suppression of weeds and exotic flora; and maintenance, upkeep, and repair of drains, water lines, roads, buildings, and other improvements. "Care and maintenance" may include, but is not limited to, reasonable overhead expenses necessary for such purposes, including maintenance of machinery, tools, and equipment used for such purposes. "Care and maintenance" may also include repair or restoration of improvements necessary or desirable as a result of wear, deterioration, accident, damage, or destruction. "Care and maintenance" does not include expenses for the construction and development of new grave spaces or interment structures to be sold to the public.

(9)  "Casket" means a rigid container which is designed for the encasement of human remains and which is usually constructed of wood or metal, ornamented, and lined with fabric.

(10)  "Cemetery" means a place dedicated to and used or intended to be used for the permanent interment of human remains. A cemetery may contain land or earth interment; mausoleum, vault, or crypt interment; a columbarium or other structure or place used or intended to be used for the interment of cremated human remains; or any combination of one or more of such structures or places.

(11)  "Cemetery company" means any legal entity that owns or controls cemetery lands or property.

(12)  "Certificateholder" or "licensee" means the person or entity that is authorized under this chapter to sell preneed funeral or burial services, preneed funeral or burial merchandise, or burial rights. Each term shall include the other, as applicable, as the context requires. For the purposes of chapter 120, all certificateholders, licensees, and registrants shall be considered licensees.

(13)  "Columbarium" means a structure or building which is substantially exposed above the ground and which is intended to be used for the inurnment of cremated human remains.

(14)  "Common business enterprise" means a group of two or more business entities that share common ownership in excess of 50 percent.

(15)  "Community" means the area within a 15-mile radius surrounding the location or proposed location of a cemetery.

(16)  "Cremation" includes any mechanical or thermal process whereby a dead human body is reduced to ashes. Cremation also includes any other mechanical or thermal process whereby human remains are pulverized, burned, recremated, or otherwise further reduced in size or quantity.

(17)  "Department" means the Department of Banking and Finance.

(18)  "Direct disposer" means any person who is registered in this state to practice direct disposition pursuant to the provisions of chapter 470.

(19)  "Final disposition" means the final disposal of a dead human body whether by interment, entombment, burial at sea, cremation, or any other means and includes, but is not limited to, any other disposition of remains for which a segregated charge is imposed.

(20)  "Funeral director" means any person licensed in this state to practice funeral directing pursuant to the provisions of chapter 470.

(21)  "Grave space" means a space of ground in a cemetery intended to be used for the interment in the ground of human remains.

(22)  "Human remains" means the bodies of deceased persons and includes bodies in any stage of decomposition and cremated remains.

(23)  "Mausoleum" means a structure or building which is substantially exposed above the ground and which is intended to be used for the entombment of human remains.

(24)  "Mausoleum section" means any construction unit of a mausoleum which is acceptable to the department and which a cemetery uses to initiate its mausoleum program or to add to its existing mausoleum structures.

(25)  "Monument" means any product used for identifying a grave site and cemetery memorials of all types, including monuments, markers, and vases.

(26)  "Monument establishment" means a facility that operates independently of a cemetery or funeral establishment and that offers to sell monuments or monument services to the public for placement in a cemetery.

(27)  "Net assets" means the amount by which the total assets of a certificateholder, excluding goodwill, franchises, customer lists, patents, trademarks, and receivables from or advances to officers, directors, employees, salespersons, and affiliated companies, exceed total liabilities of the certificateholder. For purposes of this definition, the term "total liabilities" does not include the capital stock, paid-in capital, or retained earnings of the certificateholder.

(28)  "Net worth" means total assets minus total liabilities pursuant to generally accepted accounting principles.

(29)  "Outer burial container" means an enclosure into which a casket is placed and includes, but is not limited to, vaults made of concrete, steel, fiberglass, or copper; sectional concrete enclosures; crypts; and wooden enclosures.

(30)  "Preneed contract" means any arrangement or method, of which the provider of funeral merchandise or services has actual knowledge, whereby the funeral establishment, direct disposer, or certificateholder agrees to furnish funeral merchandise or service in the future.

(31)  "Religious institution" means an organization formed primarily for religious purposes which has qualified for exemption from federal income tax as an exempt organization under the provisions of s. 501(c)(3) of the Internal Revenue Code of 1986, as amended.

(32)  "Servicing agent" means any person acting as an independent contractor whose fiduciary responsibility is to assist both the trustee and certificateholder hereunder in administrating their responsibilities pursuant to this chapter.

(33)  "Solicitation" means any communication which directly or implicitly requests an immediate oral response from the recipient.

(34)  "Statutory accounting" means generally accepted accounting principles, except as modified by this chapter.

History.--s. 3, ch. 59-363; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 210, ch. 71-377; ss. 1, 2, ch. 72-78; s. 3, ch. 76-168; s. 2, ch. 76-251; s. 1, ch. 77-457; ss. 4, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 3, ch. 85-16; s. 2, ch. 85-202; s. 1, ch. 89-8; ss. 40, 122, ch. 93-399; s. 3, ch. 96-400; s. 1142, ch. 97-103; s. 2, ch. 98-268; s. 2, ch. 2000-195.

Note.--Former s. 559.32.

497.025  Liability.--The cemetery owners, or the officers or directors of a cemetery company, may be held jointly and severally liable for any income from the care and maintenance trust fund which income is not used directly for the care and maintenance of a cemetery. The department or the receiver or administrator appointed pursuant to this chapter may bring suit in circuit court to recover such funds.

History.--s. 5, ch. 78-407; ss. 22, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; s. 122, ch. 93-399; s. 4, ch. 96-400.

Note.--Former s. 559.4405.

497.0255  Duty of care and maintenance of licensed cemetery.--Every cemetery company or other entity responsible for the care and maintenance of a licensed cemetery in this state shall ensure that the grounds, structures, and other improvements of the cemetery are well cared for and maintained in a proper and dignified condition. The board shall adopt, by no later than July 1, 1999, such rules as are necessary to implement and enforce this section. In developing and promulgating said rules, the board may define different classes of cemeteries or care and maintenance, and may provide for different rules to apply to each of said classes, if the designation of classes and the application of different rules is in the public interest and is supported by findings by the board based on evidence of industry practices, economic and physical feasibility, location, or intended uses; provided, that the rules shall provide minimum standards applicable to all cemeteries. For example, and without limiting the generality of the foregoing, the board may determine that a small rural cemetery with large trees and shade area does not require, and may not be able to attain, the same level of lawn care as a large urban cemetery with large open grassy areas and sprinkler systems.

History.--s. 3, ch. 98-268.

497.101  Board of Funeral and Cemetery Services; membership; appointment; terms.--

(1)  The Board of Funeral and Cemetery Services is created within the Department of Banking and Finance and shall consist of seven members appointed by the Governor, from nominations made by the Comptroller, and confirmed by the Senate. The Comptroller shall nominate three persons for each vacancy on the board, and the Governor shall fill each vacancy on the board by appointing one of the three persons nominated by the Comptroller to fill that vacancy. If the Governor objects to each of the three nominations for a vacancy, she or he shall inform the Comptroller in writing. Upon notification of an objection by the Governor, the Comptroller shall submit three additional nominations for that vacancy until the vacancy is filled.

(2)  Two members of the board must be funeral directors licensed under chapter 470 who are not associated with a cemetery company through ownership interests or through employment with a company which has an ownership interest in a cemetery. Two members must be owners or operators of a cemetery licensed under this chapter. The remaining three members must be residents of the state who have never been licensed as funeral directors or embalmers and who are in no way connected with a cemetery, the death care industry, or the practice of embalming, funeral directing, or direct disposition. At least one consumer member of the board must be 60 years of age or older. No licensee on the board may be associated by employment or ownership with a funeral establishment or cemetery which is owned partly or wholly by a person, business, corporation, or other entity which is associated with another licensee on the board.

(3)  The Governor shall appoint members for terms of 4 years, and such members shall serve until their successors are appointed. When the terms of the initial board members expire, the Governor shall stagger the terms of the successor members as follows: one funeral director, one cemetery company representative, and one consumer member shall be appointed for terms of 2 years, and the remaining members shall be appointed for terms of 4 years. All subsequent terms shall be for 4 years.

History.--s. 41, ch. 93-399; s. 5, ch. 96-400; s. 1143, ch. 97-103.

497.103  Rulemaking authority of board and department.--

(1)  The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this chapter conferring duties upon it. The department may adopt rules pursuant to ss. 120.536(1) and 120.54 to administer provisions of this chapter conferring duties upon it. The board or the department may also adopt rules to allow for the electronic submission of any applications, documents, or fees required by this chapter. The board or the department may adopt rules to authorize the board or the department to accept certification of compliance with certain requirements of this chapter in lieu of requiring submission of the documents.

(2)  The board shall adopt rules which establish requirements for inspection of cemeteries.

(3)  The board shall adopt and enforce rules governing the operation of cemeteries in this state and arrange for the preparation, publication, and dissemination to the public of these rules and other information and material relevant to the operation of cemeteries.

(4)  The department shall examine the financial affairs of any cemetery company and any preneed sales certificateholder.

History.--s. 42, ch. 93-399; s. 167, ch. 98-200; s. 3, ch. 2000-195.

497.105  Department of Banking and Finance; powers and duties.--The Department of Banking and Finance shall:

(1)  Adopt rules establishing procedures for the renewal of licenses, registrations, and certificates of authority.

(2)  Appoint the executive director of the Board of Funeral and Cemetery Services, subject to the approval of the board.

(3)  With the advice of the board, submit a biennial budget to the Legislature at a time and in the manner provided by law.

(4)  Develop a training program for persons newly appointed to membership on the board. The program shall familiarize such persons with the substantive and procedural laws and rules which relate to the regulation under this chapter and with the structure of the department.

(5)  Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.

(6)  Establish by rule procedures by which the department shall use the expert or technical advice of the board, for the purposes of investigation, inspection, audit, evaluation of applications, other duties of the department, or any other areas the department may deem appropriate.

(7)  Require all proceedings of the board or panels thereof within the department and all formal or informal proceedings conducted by the department, an administrative law judge, or a hearing officer with respect to licensing, registration, certification, or discipline to be electronically recorded in a manner sufficient to ensure the accurate transcription of all matters so recorded.

(8)  Select only those investigators approved by the board. Such investigators shall report to and work in coordination with the executive director of the board and are responsible for all inspections and investigations other than financial examinations.

History.--s. 43, ch. 93-399; s. 6, ch. 96-400; s. 231, ch. 96-410; s. 168, ch. 98-200.

497.107  Headquarters.--The Board of Funeral and Cemetery Services may be contacted through the headquarters of the Department of Banking and Finance in the City of Tallahassee.

History.--s. 44, ch. 93-399.

497.109  Board of Funeral and Cemetery Services; membership.--

(1)  The Board of Funeral and Cemetery Services shall comply with the provisions of this section.

(2)  The board shall annually elect from among its number a chair and a vice chair.

(3)  The board shall hold such meetings during the year as it may deem necessary, one of which shall be the annual meeting. The chair or a quorum of the board may call other meetings, and a quorum is necessary for the conduct of business by the board. Unless otherwise provided by law, a majority of the members of the board constitutes a quorum. A vacancy shall occur upon the failure of a member of the board to attend three consecutive meetings of the board or at least half of the meetings of the board during any 12-month period.

(4)  Unless otherwise provided by law, a board member shall be compensated $50 for each day the member attends an official meeting of the board and for each day the member participates in any other business involving the board. The board shall adopt rules defining the phrase "other business involving the board," but the phrase may not be defined to include telephone conference calls. A board member is entitled to reimbursement for expenses pursuant to s. 112.061, but travel out of state requires the prior approval of the Comptroller.

History.--s. 45, ch. 93-399.

497.111  Publication of information.--The department and the board may periodically advise licensees, registrants, and certificateholders, through the publication of a newsletter, about information that the department or the board determines is of interest to the death care industry.

History.--s. 46, ch. 93-399.

497.113  Accountability and liability of board members.--

(1)  Each board member is accountable to the Governor for the proper performance of his or her duties as a member of the board. The Governor shall investigate any legally sufficient complaint or unfavorable written report received by the Governor or by the department concerning the actions of the board or individual members of the board. The Governor may suspend from office any board member for malfeasance, misfeasance, neglect of duty, incompetence, permanent inability to perform official duties, or commission of a felony.

(2)  Each board member, and each past board member serving on a probable cause panel, is exempt from civil liability for any act or omission when acting in an official capacity, and the department or the Department of Legal Affairs shall defend any such member in any action against the board or member of the board arising from any such act or omission. In providing such defense, the department or the Department of Legal Affairs may employ or utilize the legal services of outside counsel.

History.--s. 47, ch. 93-399.

497.115  Board rules; final agency action; challenges.--

(1)  The Comptroller shall have standing to challenge any rule or proposed rule of the board pursuant to s. 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the administrative law judge, upon such a challenge by the Comptroller, may declare all or part of a rule or proposed rule invalid if it:

(a)  Does not protect the public from any significant and discernible harm or damages;

(b)  Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state; or

(c)  Unnecessarily increases the cost of professional services without a corresponding or equivalent public benefit.

However, there shall not be created a presumption of the existence of any of the conditions cited in this subsection in the event that the rule or proposed rule is challenged.

(2)  In addition, either the Comptroller or the board shall be a substantially interested party for purposes of s. 120.54(7). The board may, as an adversely affected party, initiate and maintain an action pursuant to s. 120.68 challenging the final agency action.

History.--s. 48, ch. 93-399; s. 232, ch. 96-410.

497.117  Legal and investigative services.--

(1)  The Department of Legal Affairs shall provide legal services to the board within the Department of Banking and Finance, but the primary responsibility of the Department of Legal Affairs shall be to represent the interests of the citizens of the state by vigorously counseling the board with respect to its obligations under the laws of the state. Subject to the prior approval of the Attorney General, the board may retain independent legal counsel to provide legal advice to the board on a specific matter. Fees and costs of such counsel shall be paid from the Regulatory Trust Fund of the Department of Banking and Finance.

(2)  The Department of Banking and Finance may employ or utilize the legal services of outside counsel and the investigative services of outside personnel. However, no attorney employed or utilized by the department shall prosecute a matter or provide legal services to the board with respect to the same matter.

History.--s. 49, ch. 93-399; s. 4, ch. 2000-195.

497.119  Mediation.--

(1)  Notwithstanding the provisions of s. 497.131, the board may adopt rules to designate which violations of this chapter are appropriate for mediation. The board may designate as mediation offenses those complaints where harm caused by the licensee is economic in nature or can be remedied by the licensee.

(2)  After the department determines a complaint is legally sufficient and the alleged violations are defined as mediation offenses, the department or any agent of the department may conduct informal mediation to resolve the complaint. If the complainant and the subject of the complaint agree to a resolution of a complaint within 14 days after contact by the mediator, the mediator shall notify the department of the terms of the resolution. The department or board shall take no further action unless the complainant and the subject each fail to record with the department an acknowledgment of satisfaction of the terms of mediation within 60 days after the mediator's notification to the department. In the event the complainant and subject fail to reach settlement terms or to record the required acknowledgment, the department shall process the complaint according to the provisions of s. 497.131.

(3)  Conduct or statements made during mediation are inadmissible in any proceeding pursuant to s. 497.131. Further, any information relating to the mediation of a case shall be subject to the confidentiality provisions of s. 497.131.

(4)  No licensee may go through the mediation process more than three times without approval of the department. The department may consider the subject and dates of the earlier complaints in rendering its decision. Such decision may not be considered a final agency action for purposes of chapter 120.

History.--s. 50, ch. 93-399; s. 2, ch. 95-385.

497.121  Authority to issue citations.--

(1)  Notwithstanding the provisions of s. 497.131, the board shall adopt rules to permit the issuance of citations. The citation shall be issued to the subject and shall contain the subject's name and address, the subject's license number if applicable, a brief factual statement, the sections of the law allegedly violated, and the penalty imposed. The citation must clearly state that the subject may choose, in lieu of accepting the citation, to follow the procedures under s. 497.131. If the subject disputes the matter in the citation, the procedures set forth in s. 497.131 must be followed. However, if the subject does not dispute the matter in the citation with the department within 30 days after the citation is served, the citation shall become a final order of the board and shall constitute discipline. The penalty shall be a fine or other conditions as established by rule.

(2)  The board shall adopt rules designating violations for which a citation may be issued. Such rules shall designate as citation violations those violations for which there is no substantial threat to the public health, safety, and welfare.

(3)  The department shall be entitled to recover the costs of investigation, in addition to any penalty provided according to board rule, as part of the penalty levied pursuant to the citation.

(4)  A citation must be issued within 6 months after the filing of the complaint that is the basis for the citation.

(5)  Service of a citation may be made by personal service or certified mail, restricted delivery, to the subject at the subject's last known address.

History.--s. 51, ch. 93-399.

497.123  Powers to administer oaths and issue subpoenas.--

(1)(a)  The board or the department has the power to issue and to serve subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation. The department, or its duly authorized representative, has the power to administer oaths and affirmations to any person.

(b)  The board or the department may, in its discretion, seek subpoenas or subpoenas duces tecum from any court of competent jurisdiction commanding the appearance of witnesses and the production of books, accounts, records, and other documents or materials at a time and place named in the subpoenas; and any authorized representative of the department may serve any subpoena.

(2)(a)  In the event of substantial noncompliance with a subpoena or subpoena duces tecum issued or caused to be issued by the board or the department, the board or the department may petition the circuit court or any other court of competent jurisdiction of the county in which the person subpoenaed resides or has its principal place of business for an order requiring the subpoenaed person to appear and testify and to produce such books, accounts, records, and other documents as are specified in the subpoena duces tecum. The court may grant injunctive relief restraining the person from advertising, promoting, soliciting, entering into, offering to enter into, continuing, or completing a contract pursuant to the provisions of this chapter. The court may grant such other relief, including, but not limited to, the restraint, by injunction or appointment of a receiver, of any transfer, pledge, assignment, or other disposition of the person's assets or any concealment, alteration, destruction, or other disposition of books, accounts, records, or other documents and materials as the court deems appropriate, until the person has fully complied with the subpoena duces tecum and the department has completed its investigation or examination. In addition, the court may order the refund of any fees collected in a transaction whenever books and documents substantiating the transaction are not produced or cannot be produced. The department is entitled to the summary procedure provided in s. 51.011, and the court shall advance such cause on its calendar. Attorney's fees and any other costs incurred by the department to obtain an order granting, in whole or part, a petition for enforcement of a subpoena or subpoena duces tecum shall be taxed against the subpoenaed person, and failure to comply with such order is a contempt of court.

(b)  When it appears to the department that the compliance with a subpoena or subpoena duces tecum issued or caused to be issued by the department pursuant to this section is essential and otherwise unavailable to an investigation or examination, the department, in addition to the other remedies provided for in this section, may apply to the circuit court or any other court of competent jurisdiction of the county in which the subpoenaed person resides or has its principal place of business for a writ of ne exeat. The court shall thereupon direct the issuance of the writ against the subpoenaed person requiring sufficient bond conditioned on compliance with the subpoena or subpoena duces tecum. The court shall cause to be endorsed on the writ a suitable amount of bond upon the payment of which the person named in the writ shall be freed, having a due regard to the nature of the case.

(c)  Alternatively, the department may seek a writ of attachment from the court having jurisdiction over the person who has refused to obey a subpoena, who has refused to give testimony, or who has refused to produce the matters described in the subpoena duces tecum.

History.--s. 52, ch. 93-399.

497.125  Evidence; examiner's worksheets, investigative reports, other related documents.--In any hearing in which the financial examiner acting under authority of this chapter is available for cross-examination, any official written report, worksheet, or other related paper, or a duly certified copy thereof, compiled, prepared, drafted, or otherwise made by the financial examiner, after being duly authenticated by the examiner, may be admitted as competent evidence upon the oath of the examiner that the report, worksheet, or related paper was prepared as a result of an examination of the books and records of a licensee or other person conducted pursuant to the authority of this chapter.

History.--s. 53, ch. 93-399.

497.127  Injunction to restrain violations.--

(1)  The board or the department may bring action through its own counsel in the name and on behalf of the state against any person who has violated or is about to violate any provision of this chapter or any rule or order of the department issued under this chapter to enjoin the person from continuing in or engaging in any act in furtherance of the violation.

(2)  In any injunctive proceeding, the court may, on due showing by the board or the department, issue a subpoena or subpoena duces tecum requiring the attendance of any witness and requiring the production of any books, accounts, records, or other documents and materials that appear necessary to the expeditious resolution of the application for injunction.

(3)  In addition to all other means provided by law for the enforcement of any temporary restraining order, temporary injunction, or permanent injunction issued in any such court proceeding, the court has the power and jurisdiction, upon application of the board or the department, to impound, and to appoint a receiver or administrator for, the property, assets, and business of the defendant, including, but not limited to, the books, records, documents, and papers appertaining thereto. Such receiver or administrator, when appointed and qualified, has all powers and duties as to custody, collection, administration, winding up, and liquidation of the property and business as are from time to time conferred upon him or her by the court. In any such action, the court may issue an order staying all pending suits and enjoining any further suits affecting the receiver's or administrator's custody or possession of the property, assets, and business, or the court, in its discretion and with the consent of the chief judge of the circuit, may require that all such suits be assigned to the circuit court judge who appoints the receiver or administrator.

(4)  For the purpose of this section, the violation of this chapter by a person who is not licensed by the department or the board or by any person who aids and abets the unlicensed activity shall be presumed to be irreparable harm to the public health, safety, or welfare.

History.--s. 54, ch. 93-399; s. 7, ch. 96-400; s. 1144, ch. 97-103.

497.129  Cease and desist order; civil penalty; enforcement.--

(1)  The department or the board has the power to issue and serve upon any person an order to cease and desist and to take corrective action whenever it has reason to believe the person is violating, has violated, or is about to violate any provision of this chapter, any rule or order of the department or the board issued under this chapter, or any written agreement between the person and the department or the board. All procedural matters relating to issuance and enforcement of such a cease and desist order are governed by the Administrative Procedure Act.

(2)  Failure to respond to a complaint within the time allowed in ss. 120.569 and 120.57 shall constitute a default and shall be grounds for the issuance of a final order to cease and desist.

(3)  The department or the board may issue an emergency cease and desist order pursuant to s. 120.569.

¹(4)  For the purpose of enforcing a cease and desist order, the board or the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of such order. In addition to the foregoing remedies, the board or the department may impose an administrative penalty not to exceed $5,000 per violation, pursuant to the provisions of chapter 120. If the board or the department is required to seek enforcement of the agency order for a penalty pursuant to s. 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

(5)  In addition to or in lieu of any remedy provided in subsection (1), the board or the department may seek the imposition of a civil penalty through the circuit court for any violation for which the board or the department may issue a notice to cease and desist under subsection (1). The civil penalty shall be no less than $500 and no more than $5,000 for each violation. The court may also award to the prevailing party court costs and reasonable attorney's fees and, in the event the board or the department prevails, may also award reasonable costs of investigation.

(6)  In addition to the other remedies provided by this section, the board or the department may impose an administrative penalty not to exceed $5,000 per violation, pursuant to the provisions of chapter 120.

History.--s. 55, ch. 93-399; s. 8, ch. 96-400; s. 233, ch. 96-410; s. 53, ch. 97-98.

¹Note.--As amended by s. 233, ch. 96-410. This version is published as the last expression of legislative will (see Journal of the House of Representatives 1996, p. 2168). Subsection (4) was also amended by s. 8, ch. 96-400, and that version reads:

(4)  For the purpose of enforcing a cease and desist order, the board or the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of such order. If the board or the department is required to seek enforcement of the agency order for a penalty pursuant to s. 120.69, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

497.131  Disciplinary proceedings.--

(1)  The department shall cause to be investigated any complaint which is filed before it if the complaint is in writing, signed by the complainant, and legally sufficient. A complaint is legally sufficient if it contains ultimate facts which show that a violation of this chapter, or of any rule promulgated by the department or board has occurred. In order to determine legal sufficiency, the department may require supporting information or documentation. The department may investigate or continue to investigate, and the department and the board may take appropriate final action on, a complaint even though the original complainant withdraws it or otherwise indicates her or his desire not to cause the complaint to be investigated or prosecuted to completion. The department may investigate an anonymous complaint if the complaint is in writing and is legally sufficient, if the alleged violation of law or rules is substantial, and if the department has reason to believe, after preliminary inquiry, that the alleged violations in the complaint are true. The department may investigate a complaint made by a confidential informant if the complaint is legally sufficient, if the alleged violation of law or rule is substantial, and if the department has reason to believe, after preliminary inquiry, that the allegations of the complainant are true. The department may initiate an investigation if it has reasonable cause to believe that a person has violated a state statute, a rule of the department, or a rule of the board. When an investigation of any person is undertaken, the department shall promptly furnish to the person or her or his attorney a copy of the complaint or document which resulted in the initiation of the investigation. The person may submit a written response to the information contained in such complaint or document within 20 days after service to the person of the complaint or document. The person's written response shall be considered by the probable cause panel. This right to respond shall not prohibit the department from issuing a summary emergency order if necessary to protect the public. However, if the Comptroller or her or his designee and the chair of the board or the chair of its probable cause panel agree in writing that such notification would be detrimental to the investigation, the department may withhold notification. The department may conduct an investigation without notification to any person if the act under investigation is a criminal offense.

(2)  The department shall expeditiously investigate complaints. When its investigation is complete and legally sufficient, the department shall prepare and submit to the probable cause panel of the board the investigative report of the department. The report shall contain the investigative findings and the recommendations of the department concerning the existence of probable cause. At any time after legal sufficiency is found, the department may dismiss any case, or any part thereof, if the department determines that there is insufficient evidence to support the prosecution of allegations contained therein. The department shall provide a detailed report to the probable cause panel prior to dismissal of any case or part thereof, and to the subject of the complaint after dismissal of any case or part thereof, under this section. The probable cause panel shall have access, upon request, to the investigative files pertaining to a case prior to dismissal of such case. If the department dismisses a case, the probable cause panel may retain independent legal counsel, employ investigators, and continue the investigation and prosecution of the case as it deems necessary.

(3)  As an alternative to the provisions of subsections (1) and (2), when a complaint is received, the department may provide a licensee with a notice of noncompliance for an initial offense of a minor violation. The board shall establish by rule those minor violations under this provision that do not endanger the public health, safety, and welfare and which do not demonstrate a serious inability to practice the profession. Failure of a licensee to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings.

(4)  The determination as to whether probable cause exists shall be made by majority vote of the probable cause panel of the board. The board shall provide, by rule, that the determination of probable cause shall be made by a panel of its members or by the department. The board may provide, by rule, for multiple probable cause panels composed of at least two members. The board may provide, by rule, that one or more members of the panel or panels may be a former board member. The length of term or repetition of service of any such former board member on a probable cause panel may vary according to the direction of the board when authorized by board rule. Any probable cause panel must include one of the board's former or present consumer members, if one is available, willing to serve, and is authorized to do so by the board chair. Any probable cause panel must include a present board member. Any probable cause panel must include a former or present professional board member. However, any former professional board member serving on the probable cause panel must hold an active valid license for that profession. All probable cause proceedings conducted pursuant to the provisions of this section are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. The probable cause panel may make a reasonable request, and upon such request the department shall provide such additional investigative information as is necessary to the determination of probable cause. A request for additional investigative information shall be made within 15 days from the date of receipt by the probable cause panel of the investigative report of the department. The probable cause panel shall make its determination of probable cause within 30 days after receipt by it of the final investigative report of the department. The Comptroller may grant extensions of the 15-day and the 30-day time limits. If the probable cause panel does not find probable cause within the 30-day time limit, as may be extended, or if the probable cause panel finds no probable cause, the department may determine, within 10 days after the panel fails to determine probable cause or 10 days after the time limit has elapsed, that probable cause exists. If the probable cause panel finds that probable cause exists, it shall direct the department to file a formal complaint against the licensee. The department shall follow the directions of the probable cause panel regarding the filing of a formal complaint. If directed to do so, the department shall file a formal complaint against the subject of the investigation and prosecute that complaint pursuant to the provisions of chapter 120. However, the department may decide not to prosecute the complaint if it finds that probable cause had been improvidently found by the panel. In such cases, the department shall refer the matter to the board. The board may then file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. The department shall also refer to the board any investigation or disciplinary proceeding not before the Division of Administrative Hearings pursuant to chapter 120 or otherwise completed by the department within 1 year after the filing of a complaint. A probable cause panel or the board may retain independent legal counsel, employ investigators, and continue the investigation as it deems necessary; all costs thereof shall be paid from the department's Regulatory Trust Fund. All proceedings of the probable cause panel shall be exempt from the provisions of s. 120.525.

(5)  A formal hearing before an administrative law judge from the Division of Administrative Hearings of the Department of Management Services shall be held pursuant to chapter 120 if there are any disputed issues of material fact. The administrative law judge shall issue a recommended order pursuant to chapter 120. If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.

(6)  The board, with those members of the panel who reviewed the investigation pursuant to subsection (4) being excused, shall determine and issue the final order in each disciplinary case. Such order shall constitute final agency action. Any consent order or agreed settlement shall be subject to the approval of the department.

(7)  The department shall have standing to seek judicial review of any final order of the board, pursuant to s. 120.68.

(8)  Any proceeding for the purpose of summary suspension of a license, or for the restriction of a license, of a licensee pursuant to s. 120.60(6) shall be conducted by the Comptroller or her or his designee, who shall issue the final summary order.

(9)  The department shall periodically notify the person who filed the complaint of the status of the investigation, whether probable cause has been found, and the status of any civil action or administrative proceeding or appeal.

(10)  Except as otherwise provided in this section, any complaints, investigative reports compiled by the department or board, and all records and information relating to an investigation conducted pursuant to the provisions of this section are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation ceases to be active. For purposes of this section, an investigation is considered "active" while the investigation is being conducted by the department or board with a reasonable, good faith belief that it may lead to the filing of administrative, civil, or criminal proceedings. An investigation does not cease to be active if the department or board is proceeding with reasonable dispatch, and there is good faith belief that action may be initiated by the department, the board, or other administrative or law enforcement agency. The subject may file a written response to the information contained in the investigative file. Nothing in this subsection shall be construed to prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency.

(11)  A privilege against civil liability is hereby granted to any complainant or any witness with regard to information furnished with respect to any investigation or proceeding pursuant to this chapter, unless the complainant or witness acted in bad faith or with malice in providing such information.

History.--s. 56, ch. 93-399; s. 1, ch. 95-385; s. 330, ch. 96-406; s. 234, ch. 96-410; s. 1145, ch. 97-103; s. 5, ch. 2000-195.

497.133  Disciplinary guidelines.--

(1)  The board shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board pursuant to this chapter, and any rule of the board or department.

(2)  The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses, it being the legislative intent that minor violations be distinguished from those which endanger the public health, safety, or welfare; that such guidelines provide reasonable and meaningful notice to the public of likely penalties which may be imposed for proscribed conduct; and that such penalties be consistently applied by the board.

(3)  A specific finding of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such guidelines. If applicable, the board shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.

(4)  The department must review such disciplinary guidelines for compliance with the legislative intent as set forth in this section to determine whether the guidelines establish a meaningful range of penalties and may also challenge such rules pursuant to s. 120.56.

(5)  The rules provided for in this section shall be promulgated within 6 months after the enactment of the board.

(6)  The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.

History.--s. 57, ch. 93-399; s. 235, ch. 96-410.

497.135  Penalty for giving false information.--In addition to, or in lieu of, any other discipline imposed pursuant to this chapter, the act of knowingly giving false information in the course of applying for or obtaining a license from the department or the board, with intent to mislead a public servant in the performance of his or her official duties, or the act of attempting to obtain or obtaining a license to practice by misleading statements or knowing misrepresentations constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 58, ch. 93-399; s. 566, ch. 97-103.

497.137  Unlicensed activity; emergency cease and desist order; administrative penalty; civil penalty; enforcement; attorney's fees and costs.--

(1)  In addition to other remedies provided to the department or the board, when the department or the board has probable cause to believe that any person who is not licensed by the department or the board has violated any provision of this chapter or any rule adopted pursuant thereto, the department or the board may issue and deliver to the person an emergency order to cease and desist from such a violation. In addition, the department or the board may issue and deliver an emergency order to cease and desist to any person who aids and abets the unlicensed activity. The issuance of the emergency order to cease and desist shall be effective immediately upon issuance and shall be subject to s. 120.68. For the purpose of enforcing an emergency cease and desist order, the department or the board may file a proceeding in the name of the state seeking issuance of an injunction against any person who violates any provisions of such an order. In addition to the foregoing remedies, the department or the board may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120. If the department or the board is required to seek enforcement of the agency order for a penalty pursuant to s. 120.69, it shall be entitled to collect reasonable attorney's fees and costs, together with any reasonable costs of collecting the attorney's fees and costs.

(2)  In addition to or in lieu of any remedy provided in subsection (1), the department or the board may seek the imposition of a civil penalty through the circuit court for any violation for which the department or the board may issue an emergency order to cease and desist under subsection (1). The civil penalty shall be no less than $500 and no more than $5,000 for each offense. The court may also award to the prevailing party court costs and reasonable attorney's fees and, if the department or the board prevails, may also award reasonable costs of investigation.

(3)  For the purpose of this section, the violation of this chapter by a person who is not licensed by the department or the board or by any person who aids and abets the unlicensed activity shall be presumed to be an immediate serious danger to the public health, safety, or welfare.

History.--s. 9, ch. 96-400.

497.201  Cemetery companies; license; application; fee.--

(1)  No person may operate a cemetery without first obtaining a license from the department, unless specifically exempted from this chapter.

(2)  The department may require any person desiring to establish a cemetery company who applies for a license to provide any information reasonably necessary to make a determination of the applicant's eligibility for licensure. Any person desiring to establish a cemetery company shall first:

(a)  File an application, which states the exact location of the proposed cemetery, which site shall contain not less than 15 contiguous acres; provide a financial statement signed by all officers of the company which attest to a net worth of at least $50,000, which net worth must be continuously maintained as a condition of licensure; and pay an application fee of $5,000;

(b)  Create a legal entity; and

(c)  Demonstrate to the satisfaction of the board that the applicant possesses the ability, experience, financial stability, and integrity to operate a cemetery.

(3)  The department shall determine the need for a new cemetery by considering the adequacy of existing cemetery facilities, licensed and unlicensed, within the community; the solvency of the trust funds of the existing facilities; and the relationship between population, rate of population growth, death rate, and ratio of burials to deaths to meet the projected need for burial spaces for a period of 30 years. In order to promote competition, the department may waive the criteria of this subsection so that each county may have at least six cemeteries operated by different licensees.

(4)  If the board finds that the applicant meets the criteria established in subsection (2) and the department determines that a need for the new cemetery in the community exists, the department shall notify the applicant that a license will be issued when:

(a)  The establishment of a care and maintenance trust fund containing not less than $50,000 has been certified by a trust company, a state or national bank, or a savings and loan association licensed in this state.

(b)  The applicant has filed with the department development plans which are sufficient to ensure the department that the cemetery will provide adequate service to the community and which have been approved by the appropriate local governmental agency regulating zoning in the area of the proposed cemetery.

(c)  The applicant holds an unencumbered fee simple title to at least 15 contiguous acres of land.

(d)  The applicant has designated as general manager a person who has integrity, 1 year of cemetery experience, and the ability to operate a cemetery.

(e)  The applicant has fully developed not less than 2 acres for use as burial space, such development to include a paved road from a public roadway to the developed section.

(f)  The applicant has recorded, in the public records of the county in which the land is located, a notice which contains the following language:

NOTICE

The property described herein shall not be sold, conveyed, leased, mortgaged, or encumbered without the prior written approval of the Department of Banking and Finance, as provided in the Florida Funeral and Cemetery Services Act.

Such notice shall be clearly printed in boldfaced type of not less than 10 points and may be included on the face of the deed of conveyance to the licensee or may be contained in a separate recorded instrument which contains a description of the property.

(5)  The department shall issue a license to operate a cemetery company to any applicant who, within 12 months after notice that a license may be issued, meets the criteria of subsection (4). With respect to any application for which the department has given notice under subsection (4) on or after January 1, 1984, the board may, for good cause shown, grant up to two extensions of the 12-month period within which the applicant must meet the criteria of subsection (4).

History.--s. 4, ch. 59-363; s. 1, ch. 63-324; s. 2, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 72-78; s. 141, ch. 73-333; s. 3, ch. 76-168; s. 3, ch. 76-251; s. 1, ch. 77-457; s. 7, ch. 78-95; s. 1, ch. 78-369; s. 1, ch. 78-407; ss. 5, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 3, ch. 85-202; ss. 1, 4, ch. 87-39; s. 1, ch. 89-8; ss. 59, 122, ch. 93-399.

Note.--Former s. 559.33; s. 497.006.

497.205  License not assignable or transferable.--

(1)  A license issued to operate a cemetery pursuant to this chapter is not transferable or assignable, and a licensee may not develop or operate any cemetery authorized by this chapter at any location other than that contained in the application for the license.

(2)  Any person who seeks to purchase or acquire control of an existing licensed cemetery shall first apply to the board for approval of the proposed change of ownership. The application shall contain the name and address of the proposed new owner, a financial statement signed by all officers of the company attesting to a net worth of at least $50,000, and other information required by the board. The board may approve a change of ownership only after it has conducted an investigation of the applicant and determined that the proposed new owner is qualified by character, experience, and financial responsibility to control and operate the cemetery in a legal and proper manner. The department may examine the records of the cemetery company as part of the investigation in accordance with this chapter. The application shall be accompanied by an investigation fee of $5,000. Upon consummation of the purchase or acquisition of control and upon receipt of all documents required by the board, the department shall issue the new license for that cemetery effective on the date of that purchase or acquisition of control.

History.--s. 18, ch. 59-363; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 39, ch. 83-215; s. 4, ch. 85-202; s. 1, ch. 89-8; ss. 60, 122, ch. 93-399.

Note.--Former s. 559.47; s. 497.007.

497.209  Application for change of control among existing stockholders or partners; investigation fee.--Any stockholders or partners who intend to acquire control of an existing cemetery company from other stockholders or partners shall first apply to the board for approval for the proposed change of control. The application shall contain the names and addresses of the stockholders or partners seeking to acquire control and a financial statement signed by all officers of the company attesting to a net worth of at least $50,000. The board may approve the change of control only after it has conducted an investigation of the applicants and determined that such individuals are qualified by character, experience, and financial responsibility to control and operate the cemetery company in a legal and proper manner and that the interest of the public generally will not be jeopardized by the change in ownership and management. The department may examine the records of the cemetery company as part of the investigation in accordance with this chapter. The application shall be accompanied by an investigation fee of $2,500.

History.--s. 5, ch. 59-363; s. 2, ch. 63-324; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 138, ch. 71-355; s. 3, ch. 73-326; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 2, ch. 78-369; ss. 6, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 5, ch. 85-202; s. 1, ch. 89-8; ss. 61, 122, ch. 93-399.

Note.--Former s. 559.34; s. 497.008.

497.213  Annual license fees.--

(1)  The department shall collect from each cemetery company operating under the provisions of this chapter an annual license fee as follows:

(a)  For a cemetery with less than $25,000 annual gross sales ....... $250.

(b)  For a cemetery with at least $25,000 but less than $100,000 annual gross sales ....... $350.

(c)  For a cemetery with annual gross sales of at least $100,000 but less than $250,000 ....... $600.

(d)  For a cemetery with annual gross sales of at least $250,000 but less than $500,000 ....... $900.

(e)  For a cemetery with annual gross sales of at least $500,000 but less than $750,000 ....... $1,350.

(f)  For a cemetery with annual gross sales of at least $750,000 but less than $1 million ....... $2,250.

(g)  For a cemetery with annual gross sales of at least $1 million but less than $5 million ....... $3,250.

(h)  For a cemetery with annual gross sales of $5 million or more ....... $4,900.

(2)  An application for license renewal shall be submitted, along with the applicable license fee, on or before December 31 each year in the case of an existing cemetery company and before any sale of cemetery property in the case of a new cemetery company or a change of ownership or control pursuant to ss. 497.205 and 497.209. If the renewal application and fee are not received by December 31, the department shall collect a penalty in the amount of $200 per month or fraction of a month for each month delinquent. For the purposes of this subsection, a renewal application and fee submitted by mail shall be considered timely submitted and received if postmarked by December 31 of the applicable year.

History.--s. 17, ch. 59-363; s. 3, ch. 63-324; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 4, ch. 78-369; ss. 25, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 6, ch. 85-202; s. 1, ch. 88-227; s. 1, ch. 89-8; ss. 62, 122, ch. 93-399; s. 6, ch. 2000-195.

Note.--Former ss. 559.46, 559.345; s. 497.009.

497.217  Department rules; challenges.--The department shall not adopt any rule or approve any cemetery bylaw which unreasonably restricts competition or the availability of services in the state or in a significant part of the state or which unnecessarily increases the cost of services without a corresponding or equivalent public benefit. Any person substantially affected by a rule of the department has standing to challenge the rule under s. 120.56. Upon such a challenge, the administrative law judge may declare all or part of a rule invalid if the rule:

(1)  Does not protect the public from any significant and discernible harm or damages;

(2)  Unreasonably restricts competition or the availability of services in the state or in a significant part of the state; or

(3)  Unnecessarily increases the cost of services without a corresponding or equivalent public benefit.

However, there shall not be created a presumption of the existence of any of the conditions cited in this section in the event that the rule or proposed rule is challenged.

History.--ss. 9, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 236, ch. 96-410.

Note.--Former s. 559.3703; s. 497.012.

497.221  Cease and desist orders.--

(1)  The department may issue and serve upon a cemetery company a complaint whenever the department has reason to believe that the cemetery company is violating or has violated any law, department rule, department order, or written agreement entered into with the department.

(2)  The complaint shall contain a statement of facts and notice of opportunity for a hearing pursuant to ss. 120.569 and 120.57.

(3)  If no hearing is requested within the time allowed by ss. 120.569 and 120.57, or if a hearing is held and the department finds that any of the allegations in the complaint are true, the department may enter an order directing the cemetery company to cease and desist from engaging in the conduct complained of and to take corrective action.

(4)  The failure of a cemetery company to respond to the complaint within the time allowed in ss. 120.569 and 120.57 shall constitute a default and shall be grounds for the issuance of a cease and desist order.

(5)  A cease and desist order issued pursuant to the provisions of subsection (3) or subsection (4) is effective when reduced to writing and served upon the cemetery company. A consent order is effective as agreed between the parties thereto.

(6)  The department may issue an emergency cease and desist order pursuant to s. 120.569.

History.--s. 3, ch. 78-407; ss. 11, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 237, ch. 96-410.

Note.--Former s. 559.371; s. 497.014.

497.225  Civil penalty.--The department may seek an injunction and assessment of a civil penalty not to exceed $1,000 for each violation, in a court of competent jurisdiction, against any person who violates a cease and desist order of the department which is final and in effect. Any party subject to the injunction and penalty assessment shall be given notice and opportunity to attend and present evidence in a hearing before the judicial officer. If a licensee fails to pay the penalty within 30 days after receiving notice of the final order imposing the civil penalty, the department may suspend her or his license until the penalty is paid, in addition to other judicial remedies prescribed by law. Proceedings for suspension under this section shall be in accordance with the provisions of chapter 120.

History.--s. 6, ch. 78-407; ss. 12, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 567, ch. 97-103.

Note.--Former s. 559.373; s. 497.015.

497.229  Courts; powers; abatement of nuisances.--

(1)  In addition to all other means provided by law for the enforcement of a temporary restraining order or an injunction, the circuit court may impound the property of a cemetery company, including books, papers, documents, and records pertaining thereto, and may appoint a receiver or administrator to prevent further violation of this chapter.

(2)  A court-appointed receiver or administrator may take any action to implement the provisions of the court order, to ensure the performance of the order, and to remedy any breach thereof.

(3)  Any nonconforming physical condition in a cemetery or component thereof which is the result of a violation of this chapter or of the rules of the board relating to construction, physical operations, or care and maintenance at the cemetery shall be deemed a public nuisance, and the nonconforming physical conditions caused by such violation may be abated as provided in s. 60.05.

History.--ss. 10, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 4, ch. 98-268.

Note.--Former s. 559.374; s. 497.016.

497.233  Disciplinary proceedings.--

(1)  The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

(a)  Violating any provision of this chapter.

(b)  Failing to comply with a rule or lawful order of the department.

(c)  Failing to pay the fees required by this chapter.

(d)  Failing to remit the required amounts to any trust fund required by this chapter.

(e)  Attempting to procure, or procuring, by bribery, material misstatement, or fraudulent misrepresentation, a license to operate a cemetery company, a certificate of authority, or any other license or registration authorized by this chapter.

(f)  Having a license to operate a cemetery company, a certificate of authority to sell preneed contracts, or a registration to undertake any other activity which is regulated by this chapter revoked, suspended, or otherwise acted against, including having a license denied, by the licensing authority of another jurisdiction.

(g)  Being convicted or found guilty in any jurisdiction, regardless of adjudication, of a crime which directly relates to the operation of a cemetery, the sale of preneed contracts, or any other activity authorized by this chapter.

(h)  Making or filing a report required by this chapter which the licensee, certificateholder, or registrant knows to be false or willfully failing to make or file a report required by this chapter.

(i)  Fraud, deceit, misrepresentation, incompetency, or misconduct in the operation of a cemetery, the sale of preneed contracts, or any other activity authorized by this chapter.

(j)  Negligence in the operation of a cemetery, the sale of preneed contracts, or any other activity authorized by this chapter.

(k)  Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.

(l)  Making any false or misleading statement of the legal requirement as to the necessity of any particular burial or funeral merchandise or services.

(m)  Making any false or misleading statement regarding the sale of services or merchandise.

(n)  Making any false or misleading statement that natural decomposition or decay of human remains can be prevented or substantially delayed by use of a sealed or unsealed casket or outer burial container.

(o)  Soliciting through the use of fraud, undue influence, intimidation, overreaching, or other form of vexatious conduct.

(p)  Discouraging the purchase of any burial or funeral merchandise or service which is advertised or offered for sale, with the purpose of encouraging the purchase of additional or more expensive burial or funeral merchandise or service, by disparaging its quality or appearance, except that factual statements concerning features, design, or construction do not constitute disparagement, or by suggesting directly or by implication that a customer's concern for the price or expressed interest in inexpensive burial or funeral merchandise or services is improper, inappropriate, or indicative of diminished respect or affection for the deceased.

(q)  Failing to furnish, for retention, to anyone who inquires in person about burial rights, burial or funeral merchandise, or burial or funeral services, before any discussion of selection, a printed or typewritten list specifying the range of retail prices for such rights, merchandise, or services. At a minimum, the list shall itemize the highest and lowest priced product and service regularly offered and shall include the name, address, and telephone number of the licensee and statements that the customer may choose only the items the customer desires, that the customer will be charged for only those items selected, and that there may be other charges for other items or other services.

(r)  Failing to furnish, for retention, to each purchaser of burial rights, burial or funeral merchandise, or burial or funeral services a written agreement, the form of which has been previously approved by the board, which lists the items and services purchased together with the prices for the items and services purchased; the name, address, and telephone number of the licensee; the signatures of the customer and the licensee or her or his representative; and the date signed.

(s)  Failing to provide to any person, upon request, a copy of the cemetery bylaws.

(t)  Assessing fees and costs which have not been disclosed to the customer.

(u)  Failure, upon proper request pursuant to s. 497.419 or s. 497.421, to cancel a contract or refund that part paid on the contract.

(v)  Failure to maintain one or more of the qualifications for the certificate of authority.

(w)  Refusal to produce records in connection with any activity regulated pursuant to this chapter.

(x)  Sale of an irrevocable preneed contract to a person who is not an applicant for or recipient of Supplemental Security Income, Aid to Families with Dependent Children, or Medicaid pursuant to s. 497.419(7).

(2)  When the board finds any person guilty of any of the acts specified in subsection (1), it may enter an order imposing one or more of the following penalties:

(a)  Denial of an application for a license, certificate of authority, or registration.

(b)  Revocation or suspension of a license, certificate of authority, or registration.

(c)  Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

(d)  Issuance of a reprimand.

(e)  Placement of the licensee, certificateholder, or registrant on probation for a period of time subject to such conditions as the board may specify.

(3)  For purposes of this section, the acts or omissions of any person employed by or under contract to the licensee shall be treated as acts or omissions of the licensee. However, the board may determine that disciplinary action may be more appropriately taken against an individual registered preneed agent or registered branch rather than taking action against the licensee or certificateholder.

(4)  Any order imposing any penalty pursuant to this section shall recite the grounds upon which the penalty is based.

(5)(a)  A suspension or revocation of a license shall be by order of the board. A person whose license has been suspended or revoked may not solicit or write any new preneed contracts regulated by this chapter in this state during the period of any such suspension or revocation.

(b)  In its discretion, the board may cause notice of any such suspension or revocation to be published in one or more newspapers of general circulation published in this state.

(c)  During the period of suspension, the person whose license has been suspended shall file the annual statement and pay license fees as required under this chapter as if the license had continued in full force.

(d)  Upon expiration of the suspension period, if within such period the license has not otherwise terminated, the suspended license shall automatically be reinstated unless the board finds that the causes of the suspension have not been resolved or that such person is otherwise not in compliance with the requirements of this chapter. If not reinstated automatically, the license shall be deemed to have expired as of the end of the suspension period or upon the failure of the licensee to continue the license during the suspension period, whichever event occurs first.

History.--ss. 13, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 63, 122, ch. 93-399; s. 10, ch. 96-400; s. 1146, ch. 97-103.

Note.--Former s. 559.375; s. 497.018.

497.237  Care and maintenance trust fund; remedy of department for noncompliance.--

(1)  No cemetery company may establish a cemetery, or operate a cemetery if already established, without providing for the future care and maintenance of the cemetery, for which a care and maintenance trust fund shall be established, to be known as "the care and maintenance trust fund of _____." The trust fund shall be established with a trust company operating pursuant to chapter 660 or with a state or national bank holding trust powers. Trust funds which are with a state or national bank or savings and loan association licensed in this state on October 1, 1993, shall remain in force; however, when the amount of any such trust fund exceeds the amount that is insured by an agency of the Federal Government, the cemetery company shall transfer that trust fund to a trust company operating pursuant to chapter 660 or to a state or national bank holding trust powers.

(2)  The cemetery company may appoint a person to advise the trustee in the investment of the trust fund. The board must approve the appointment of the initial trustee, and any subsequent changes of the trustee shall also be approved by the board. If a cemetery company refuses or otherwise fails to provide or maintain an adequate care and maintenance trust fund in accordance with the provisions of this chapter, the board, after reasonable notice, shall enforce compliance. However, a nonprofit cemetery corporation which has been incorporated and engaged in the cemetery business prior to and continuously since 1915 and which has current trust assets exceeding $2 million is not required to designate a corporate trustee. The trust fund agreement shall specify the following: the name, location, and address of both the licensee and the trustee, showing the date of agreement, together with the percentages required to be deposited pursuant to this chapter.

(3)  No person may withdraw or transfer any portion of the corpus of the care and maintenance trust fund without first obtaining written consent from the board. Funds deposited pursuant to this chapter may not be loaned to any cemetery company or person who is directly or indirectly engaged in the burial, funeral home, or cemetery business.

(4)  The trustee of the trust established pursuant to this section may only invest in investments as prescribed in s. 497.417. The trustee shall take title to the property conveyed to the trust for the purposes of investing, protecting, and conserving it for the cemetery company; collecting income; and distributing the principal and income as prescribed in this chapter. The cemetery company is prohibited from sharing in the discharge of the trustee's responsibilities under this subsection, except that the cemetery company may request the trustee to invest in tax-free investments.

History.--s. 12, ch. 59-363; s. 7, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 6, ch. 76-251; s. 1, ch. 77-457; s. 9, ch. 78-407; ss. 17, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 82-7; s. 1, ch. 89-8; ss. 64, 122, ch. 93-399.

Note.--Former s. 559.41; s. 497.021.

497.241  Disposition of income of care and maintenance trust fund; notice to purchasers and depositors.--The net income of the care and maintenance trust fund shall be used solely for the care and maintenance of the cemetery, including maintenance of monuments, which maintenance shall not be deemed to include the cleaning, refinishing, repairing, or replacement of monuments; for reasonable costs of administering the care and maintenance; and for reasonable costs of administering the trust fund. At the time of making a sale or receiving an initial deposit, the cemetery company shall deliver to the person to whom the sale is made, or who makes a deposit, a written instrument which shall specifically state the purposes for which the income of the trust fund shall be used.

History.--s. 13, ch. 59-363; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 18, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 9, ch. 85-202; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399.

Note.--Former s. 559.42; s. 497.022.

497.245  Care and maintenance trust fund, percentage of payments for burial rights to be deposited.--

(1)  Each cemetery company shall set aside and deposit in its care and maintenance trust fund the following percentages or amounts for all sums received from sales of burial rights:

(a)  For graves, 10 percent of all payments received; however, for sales made after September 30, 1993, no deposit shall be less than $25 per grave. For each burial right, grave, or space which is provided without charge, the deposit to the fund shall be $25.

(b)  For mausoleums or columbaria, 10 percent of payments received.

(c)  For general endowments for the care and maintenance of the cemetery, the full amount of sums received when received.

(d)  For special endowments for a specific lot or grave or a family mausoleum, memorial, marker, or monument, the cemetery company may set aside the full amount received for this individual special care in a separate trust fund or by a deposit to a savings account in a bank or savings and loan association located within and authorized to do business in the state; however, if the licensee does not set up a separate trust fund or savings account for the special endowment, the full amount thereof shall be deposited into the care and maintenance trust fund as required of general endowments.

(2)  Deposits to the care and maintenance trust fund shall be made by the cemetery company not later than 30 days following the close of the calendar month in which any payment was received; however, when such payments are received in installments, the percentage of the installment payment placed in trust must be identical to the percentage which the payment received bears to the total cost for the burial rights. Trust income may be used to pay for all usual and customary services for the operation of a trust account, including, but not limited to: reasonable trustee and custodian fees, investment adviser fees, allocation fees, and taxes. If the net income is not sufficient to pay the fees and other expenses, the fees and other expenses shall be paid by the cemetery company. Capital gains taxes shall be paid from the corpus.

(3)  Any payments made to the care and maintenance trust fund on contracts which are canceled shall be credited against future obligations to the care and maintenance trust fund, provided they have been refunded to the purchaser.

(4)  When a cemetery which is exempt from the provisions of this chapter changes ownership so as to lose its exempt status, it shall establish and maintain a care and maintenance trust fund pursuant to this chapter. The initial deposit for establishment of this trust fund shall be $25 per space for all spaces either previously sold or contracted for sale in the cemetery at the time of conversion or $50,000, whichever is greater.

(5)  In each sales contract, reservation, or agreement wherein burial rights are priced separately, the purchase price of the burial rights shall be the only item subject to care and maintenance trust fund deposits; but if the burial rights are not priced separately, the full amount of the contract, reservation, or agreement shall be subject to care and maintenance trust fund deposits as provided in this section, unless the purchase price of the burial rights can be determined from the accounting records of the cemetery company.

(6)  If an installment contract or promissory note for the purchase of a burial space is sold or discounted to a third party, the entire amount due the care and maintenance trust fund shall be payable no later than 30 days following the close of the calendar month in which the contract was sold or discounted.

History.--s. 14, ch. 59-363; s. 8, ch. 65-288; s. 5, ch. 72-78; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 10, ch. 78-407; ss. 20, 39, 40, ch. 80-238; s. 410, ch. 81-259; ss. 2, 3, ch. 81-318; s. 10, ch. 85-202; s. 1, ch. 89-8; ss. 65, 122, ch. 93-399; s. 11, ch. 96-400; s. 7, ch. 2000-195.

Note.--Former s. 559.43; s. 497.023.

497.249  Care and maintenance trust fund; financial reports.--On or before April 1 of each year, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms provided by the department. However, the department may require the trustee to make such additional financial reports as it deems necessary. In order to ensure that the proper deposits to the trust fund have been made, the department shall examine the status of the trust fund of the company on a semiannual basis for the first 2 years of the trust fund's existence.

History.--s. 15, ch. 59-363; s. 1, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 21, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 12, ch. 96-400.

Note.--Former s. 559.44; s. 497.024.

¹497.253  Minimum acreage; sale or disposition of cemetery lands.--

(1)  Each licensee shall set aside a minimum of 15 contiguous acres of land for use by the licensee as a cemetery and shall not sell, mortgage, lease, or encumber that property without prior written approval of the department.

(2)  Any lands owned by a licensee and dedicated for use by it as a cemetery, which are contiguous, adjoining, or adjacent to the minimum of 15 contiguous acres described in subsection (1), may be sold, conveyed, or disposed of by the licensee, after obtaining written approval of the department pursuant to subsection (3), for use by the new owner for other purposes than as a cemetery. All of the human remains which have been previously interred therein shall first have been removed from the lands proposed to be sold, conveyed, or disposed of; however, the provisions of ss. 470.0295 and 497.515(7) must be complied with prior to any disinterment of human remains. Any and all titles, interests, or burial rights which may have been sold or contracted to be sold in lands which are the subject of the sale shall be conveyed to and revested in the licensee prior to consummation of any such sale, conveyance, or disposition.

(3)(a)  If the property to be sold, conveyed, or disposed of under subsection (2) has been or is being used for the permanent interment of human remains, the applicant for approval of such sale, conveyance, or disposition shall cause to be published, at least once a week for 4 consecutive weeks, a notice meeting the standards of publication set forth in s. 125.66(4)(b)2. The notice shall describe the property in question and the proposed noncemetery use and shall advise substantially affected persons that they may file a written request for a hearing pursuant to chapter 120, within 14 days after the date of last publication of the notice, with the department if they object to granting the applicant's request to sell, convey, or dispose of the subject property for noncemetery uses.

(b)  If the property in question has never been used for the permanent interment of human remains, no notice or hearing is required.

(c)  If the property in question has been used for the permanent interment of human remains, the department shall approve the application, in writing, if it finds that it would not be contrary to the public interest. In determining whether to approve the application, the department shall consider any evidence presented concerning the following:

1.  The historical significance of the subject property, if any.

2.  The archaeological significance of the subject property, if any.

3.  The public purpose, if any, to be served by the proposed use of the subject property.

4.  The impact of the proposed change in use of the subject property upon the inventory of remaining cemetery facilities in the community and upon the other factors enumerated in s. 497.201(3).

5.  The impact of the proposed change in use of the subject property upon the reasonable expectations of the families of the deceased regarding whether the cemetery property was to remain as a cemetery in perpetuity.

6.  Whether any living relatives of the deceased actively oppose the relocation of their deceased's remains and the conversion of the subject property to noncemetery uses.

7.  The elapsed time since the last interment in the subject property.

8.  Any other factor enumerated in this chapter that the department considers relevant to the public interest.

(d)  Any deed, mortgage, or other conveyance by a cemetery company or other owner pursuant to subsections (a) and (c) above must contain a disclosure in the following or substantially similar form:


NOTICE: The property described herein was formerly used and dedicated as a cemetery. Conveyance of this property and its use for noncemetery purposes was authorized by the Florida Department of Banking and Finance by Order No. _____, dated _____.

(e)  The department shall adopt such rules as are necessary to carry out the provisions of this section.

(4)  A licensee may convey and transfer to a municipality or county its real and personal property, together with moneys deposited in trust funds pursuant to this chapter, provided the municipality or county will accept responsibility for maintenance thereof and prior written approval of the department is obtained.

(5)  The provisions of subsections (1) and (2) relating to a requirement for minimum acreage shall not apply to any cemetery company licensed by the department on or before July 1, 1965, which owns a total of less than 15 acres of land; however, no cemetery company shall dispose of any land without the prior written consent of the department.

History.--s. 9, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 12, ch. 78-407; ss. 26, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 2, ch. 88-227; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399; s. 5, ch. 98-268.

¹Note.--Section 15, ch. 98-268, provides that "[e]xcept as otherwise provided herein, this act shall take effect July 1 of [1998]; however, the provisions of sections 497.0255 and 497.255, Florida Statutes, as created by this act, and the changes to section 497.253, Florida Statutes, as amended by this act, shall not be enforceable until the rules implementing those provisions have been adopted by the Board of Funeral and Cemetery Services or the Department of Banking and Finance, as applicable."

Note.--Former s. 559.481; s. 497.027.

497.255  Standards for construction and significant alteration or renovation of mausoleums and columbaria.--

(1)  All newly constructed and significantly altered or renovated mausoleums and columbaria must, in addition to complying with applicable building codes, conform to the standards adopted under this section.

(2)  The board shall adopt, by no later than July 1, 1999, rules establishing minimum standards for all newly constructed and significantly altered or renovated mausoleums and columbaria; however, in the case of significant alterations or renovations to existing structures, the rules shall apply only, when physically feasible, to the newly altered or renovated portion of such structures, except as specified in subsection (4). In developing and promulgating said rules, the board may define different classes of structures or construction standards, and may provide for different rules to apply to each of said classes, if the designation of classes and the application of different rules is in the public interest and is supported by findings by the board based on evidence of industry practices, economic and physical feasibility, location, or intended uses; provided, that the rules shall provide minimum standards applicable to all construction. For example, and without limiting the generality of the foregoing, the board may determine that a small single-story ground level mausoleum does not require the same level of construction standards that a large multistory mausoleum might require; or that a mausoleum located in a low-lying area subject to frequent flooding or hurricane threats might require different standards than one located on high ground in an area not subject to frequent severe weather threats. The board shall develop the rules in cooperation with, and with technical assistance from, the Florida Building Commission of the Department of Community Affairs, to ensure that the rules are in the proper form and content to be included as part of the State Minimum Building Codes under part VII of chapter 553. If the Florida Building Commission advises that some of the standards proposed by the board are not appropriate for inclusion in such building codes, the board may choose to include those standards in a distinct chapter of its rules entitled "Non-Building-Code Standards for Mausoleums" or "Additional Standards for Mausoleums," or other terminology to that effect. If the board elects to divide the standards into two or more chapters, all such rules shall be binding on licensees and others subject to the jurisdiction of the board, but only the chapter containing provisions appropriate for building codes shall be transmitted to the Florida Building Commission pursuant to subsection (3). Such rules may be in the form of standards for design and construction; methods, materials, and specifications for construction; or other mechanisms. Such rules shall encompass, at a minimum, the following standards:

(a)  No structure may be built or significantly altered for use for interment, entombment, or inurnment purposes unless constructed of such material and workmanship as will ensure its durability and permanence, as well as the safety, convenience, comfort, and health of the community in which it is located, as dictated and determined at the time by modern mausoleum construction and engineering science.

(b)  Such structure must be so arranged that the exterior of any vault, niche, or crypt may be readily examined at any time by any person authorized by law to do so.

(c)  Such structure must contain adequate provision for drainage and ventilation.

(d)  Such structure must be of fire-resistant construction. Notwithstanding the requirements of s. 553.895 and chapter 633, any mausoleum or columbarium constructed of noncombustible materials, as defined in the Standard Building Code, shall not require a sprinkler system.

(e)  Such structure must be resistant to hurricane and other storm damage to the highest degree provided under applicable building codes for buildings of that class.

(f)  Suitable provisions must be made for securely and permanently sealing each crypt with durable materials after the interment or entombment of human remains, so that no effluvia or odors may escape therefrom except as provided by design and sanitary engineering standards. Panels for permanent seals must be solid and constructed of materials of sufficient weight, permanence, density, imperviousness, and strength as to ensure their durability and continued functioning. Permanent crypt sealing panels must be securely installed and set in with high quality fire-resistant, resilient, and durable materials after the interment or entombment of human remains. The outer or exposed covering of each crypt must be of a durable, permanent, fire-resistant material; however, plastic, fiberglass, and wood are not acceptable materials for such outer or exposed coverings.

(g)  Interior and exterior fastenings for hangers, clips, doors, and other objects must be of copper, copper-base alloy, aluminum, or stainless steel of adequate gauges, or other materials established by rule which provide equivalent or better strength and durability, and must be properly installed.

(3)  The board shall transmit the rules as adopted under subsection (2), hereinafter referred to as the "mausoleum standards," to the Florida Building Commission, which shall initiate rulemaking under chapter 120 to consider such mausoleum standards. If such mausoleum standards are not deemed acceptable, they shall be returned by the Florida Building Commission to the board with details of changes needed to make them acceptable. If such mausoleum standards are acceptable, the Florida Building Commission shall adopt a rule designating the mausoleum standards as an approved revision to the State Minimum Building Codes under part VII of chapter 553. When so designated by the Florida Building Commission, such mausoleum standards shall become a required element of the State Minimum Building Codes under s. 553.73(2) and shall be transmitted to each local enforcement agency, as defined in s. 553.71(5). Such local enforcement agency shall consider and inspect for compliance with such mausoleum standards as if they were part of the local building code, but shall have no continuing duty to inspect after final approval of the construction pursuant to the local building code. Any further amendments to the mausoleum standards shall be accomplished by the same procedure. Such designated mausoleum standards, as from time to time amended, shall be a part of the State Minimum Building Codes under s. 553.73 until the adoption and effective date of a new statewide uniform minimum building code, which may supersede the mausoleum standards as provided by the law enacting the new statewide uniform minimum building code.

(4)  In addition to the rules adopted under subsection (2), the board shall adopt rules providing that following all interments, inurnments, and entombments in mausoleums and columbaria occurring after the effective date of such rules, whether newly constructed or existing, suitable provision must be made, when physically feasible, for sealing each crypt in accordance with standards promulgated pursuant to paragraph (2)(f).

(5)  For purposes of this section, "significant alteration or renovation" means any addition, renovation, or repair which results in the creation of new crypt or niche spaces.

History.--s. 6, ch. 98-268; s. 43, ch. 2000-141; s. 42, ch. 2000-154.

497.257  Construction of mausoleums, columbaria, and belowground crypts; preconstruction trust fund; compliance requirement.--

(1)  A cemetery company shall start construction of that section of a mausoleum, columbarium, or bank of belowground crypts in which sales, contracts for sales, reservations for sales, or agreements for sales are being made within 4 years after the date of the first such sale or 50 percent of the mausoleum, columbarium, or belowground crypts have been sold and the purchase price has been received, whichever occurs first. The construction shall be completed within 5 years after the date of the first sale made. However, extensions for completion, not to exceed 1 year, may be granted by the department for good cause shown. If the units have not been completely constructed at the time of need or the time specified herein, all moneys paid shall be refunded upon request, plus interest earned thereon for that portion of the moneys deposited in the trust fund and an amount equal to the interest that would have been earned on that portion of the moneys that were not in trust.

(2)  A cemetery company which plans to offer for sale space in a section of a mausoleum, columbarium, or bank of belowground crypts prior to construction shall establish a preconstruction trust fund by written instrument. The preconstruction trust fund shall be administered by a corporate trustee and operated in conformity with s. 497.417. The preconstruction trust fund shall be separate from any other trust funds that may be required by this chapter.

(3)  Before a sale, contract for sale, reservation for sale, or agreement for sale in a mausoleum section, columbarium, or bank of belowground crypts may be made, the cemetery company shall compute the amount to be deposited to the preconstruction trust fund. The total amount to be deposited in the fund for each unit of the project shall be computed by dividing the cost of the project plus 10 percent of the cost, as computed by a licensed contractor, engineer, or architect, by the number of crypts in the section or bank of belowground crypts or the number of niches in the columbarium. When payments are received in installments, the percentage of the installment payment placed in trust must be identical to the percentage which the payment received bears to the total cost of the contract, including other merchandise and services purchased. Preconstruction trust fund payments shall be made within 30 days after the end of the month in which payment is received.

(4)  When the cemetery company delivers a completed crypt or niche acceptable to the purchaser in lieu of the crypt or niche purchased prior to construction, all sums deposited to the preconstruction trust fund for that purchaser shall be paid to the cemetery company.

(5)  Each cemetery company may negotiate, at the time of establishment of the preconstruction trust fund, a procedure for withdrawal of the escrowed funds as a part of the construction cost of the mausoleum section, columbarium, or bank of belowground crypts contemplated, subject to the approval of the department. Upon completion of the mausoleum section, columbarium, or bank of belowground crypts, the cemetery company shall certify completion to the trustee and shall be entitled to withdraw all funds deposited to the account thereof.

(6)  If the mausoleum section, columbarium, or bank of belowground crypts is not completed within the time limits set out in this section, the trustee shall contract for and cause the project to be completed and pay therefor from the trust funds deposited to the project's account paying any balance, less cost and expenses, to the cemetery company. The refund provisions of subsection (1) apply only to the extent there are funds remaining in excess of the costs to complete the facilities, prior to any payments to the cemetery company.

(7)  On or before April 1 of each year, the trustee shall file with the board in the form prescribed by the board a full and true statement as to the activities of any trust established by the board pursuant to this chapter for the preceding calendar year.

(8)  In lieu of the payments outlined hereunder to the preconstruction trust fund, the cemetery company may deliver to the department a performance bond in an amount and by a surety company acceptable to the department.

History.--s. 7, ch. 72-78; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 27, 39, 40, ch. 80-238; s. 412, ch. 81-259; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 66, 122, ch. 93-399; s. 13, ch. 96-400; s. 7, ch. 98-268.

Note.--Former s. 559.482; s. 497.029.

497.301  Toll-free telephone number for complaints.--The department shall establish and operate a toll-free telephone hotline to receive complaints and provide information relating to the regulation under this chapter.

History.--ss. 14, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 67, 122, ch. 93-399; s. 14, ch. 96-400.

Note.--Former s. 559.377; s. 497.031.

497.305  Cemetery companies; authorized functions.--

(1)  Within the boundaries of the cemetery lands it owns, a cemetery company may perform the following functions:

(a)  The exclusive care and maintenance of the cemetery.

(b)  The exclusive interment, entombment, or inurnment of human remains, including the exclusive right to open, prepare for interment, and close all ground, mausoleum, and urn burials. Each preneed contract for burial rights or services shall disclose, pursuant to board rule, whether opening and closing of the burial space is included in the contract and, if not, the current prices for opening and closing and a statement that these prices are subject to change. Each cemetery which sells preneed contracts must offer opening and closing as part of a preneed contract.

(c)  The exclusive initial preneed and at-need sale of interment or burial rights in earth, mausoleum, crypt, niche, or columbarium interment; however, nothing herein shall limit the right of a person owning interment or burial rights to sell those rights to third parties subject to the transfer of title by the cemetery company.

(d)  The adoption of bylaws regulating the activities conducted within its boundaries, provided that no funeral director licensed pursuant to chapter 470 shall be denied access to any cemetery to conduct a funeral for or supervise a disinterment of human remains. All bylaws provided for herein shall be subject to the approval of the board under the provisions of chapter 120 prior to becoming effective. The board shall not approve any bylaw which unreasonably restricts the use of interment or burial rights, which unreasonably restricts competition, or which unreasonably increases the cost to the owner of interment or burial rights in utilizing these rights.

(e)  The nonexclusive preneed and at-need sale of monuments, memorials, markers, burial vaults, urns, flower vases, floral arrangements, and other similar merchandise for use within the cemetery.

(f)  The nonexclusive cremation of human remains, subject to provisions of s. 470.025.

(g)  The entry into sales or management contracts with other persons. The cemetery company shall be responsible for the deposit of all moneys required by this part to be placed in a trust fund.

(2)  A full disclosure shall be made for all fees required for interment, entombment, or inurnment of human remains.

(3)  A cemetery company may adopt bylaws establishing minimum standards for burial merchandise or the installation thereof.

History.--s. 8, ch. 78-407; ss. 16, 19, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 4, ch. 87-39; s. 1, ch. 89-8; ss. 68, 122, ch. 93-399; s. 79, ch. 94-119.

Note.--Former s. 559.405; s. 497.033.

497.309  Records.--

(1)  A record shall be kept of every burial in the cemetery of a cemetery company, showing the date of burial and the name of the person buried, together with lot, plot, and space in which the burial was made. All financial records of the cemetery company shall be available at its principal place of business in this state and shall be readily available at all reasonable times for examination by the department.

(2)  Notwithstanding the provisions of subsection (1), the board may, upon request, authorize a cemetery company to maintain its financial records at a location other than its principal place of business and may, if necessary, require the company to make its books, accounts, records, and documents available at a reasonable and convenient location in this state.

(3)  The board may prescribe the minimum information to be shown in the books, accounts, records, and documents of a cemetery company to enable the department to determine the company's compliance with this chapter.

History.--s. 9, ch. 59-363; s. 4, ch. 65-288; ss. 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 15, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 69, 122, ch. 93-399.

Note.--Former s. 559.38; s. 497.035.

497.313  Other charges.--Other than the fees for the sale of burial rights, burial merchandise, and burial services, no other fee may be directly or indirectly charged, contracted for, or received by a cemetery company as a condition for a customer to use any burial right, burial merchandise, or burial service, except for:

(1)  Charges paid for opening and closing a grave and vault installation.

(2)  Charges paid for transferring burial rights from one purchaser to another; however, no such fee may exceed $50.

(3)  Charges for sales, documentary excise, and other taxes actually and necessarily paid to a public official, which charges must be supported in fact.

(4)  Charges for credit life and credit disability insurance, as requested by the purchaser, the premiums for which may not exceed the applicable premiums chargeable in accordance with the rates filed with the Department of Insurance.

(5)  Charges for interest on unpaid balances pursuant to chapter 687.

History.--s. 70, ch. 93-399.

497.317  Monuments; installation fees.--

(1)  No cemetery company may charge a fee for the installation of a monument purchased or obtained from and to be installed by a person or firm other than the cemetery company or its agents.

(2)  To verify that a monument is installed on the proper grave in accordance with cemetery bylaws, rules, or regulations, the cemetery company shall mark the place on the grave where the marker or monument is to be installed and shall inspect the installation when completed. Nothing in this subsection is intended to imply or require that a cemetery company shall have to lay out or engineer a grave site or grave sites for the installation of a marker or monument.

(3)  A cemetery company may not require any person or firm that installs, places, or sets a monument to obtain any form of insurance, bond, or surety or make any form of pledge, deposit, or monetary guarantee as a condition for entry on or access to cemetery property.

History.--ss. 19, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 11, ch. 85-202; s. 3, ch. 88-227; s. 1, ch. 89-8; ss. 71, 122, ch. 93-399.

Note.--Former s. 559.406; s. 497.041.

497.321  Solicitation of goods or services.--

(1)  The board is authorized to adopt rules regulating the solicitation of sales of burial rights, merchandise, or services by licensees.

(2)  The board shall regulate such solicitation to protect the public from solicitation which is intimidating, overreaching, vexatious, fraudulent, or misleading; which utilizes undue influence; or which takes undue advantage of a person's ignorance or emotional vulnerability.

(3)  The board shall regulate any solicitation which comprises an uninvited invasion of personal privacy. It is the express finding of the Legislature that the public have a high expectation of privacy in their personal residences, and the department by rule shall restrict the hours or otherwise regulate such solicitation in the personal residence of a person unless the solicitation has been previously and expressly requested by the person solicited.

(4)  Nothing in this act shall be construed to restrict the right of a person to lawfully advertise, use direct mail, or otherwise communicate in a manner not within the definition of solicitation or to solicit the business of anyone responding to such communication or otherwise initiating discussion of goods and services being offered.

(5)  At-need solicitation of sales of burial rights, merchandise, or services is prohibited. No cemetery company or any agent or representative of that company may contact the family or next of kin of a deceased person to sell services or merchandise unless the cemetery company or an agent or representative of the company has been initially called or contacted by the family or next of kin of such person or persons and requested to provide services or merchandise.

History.--s. 38, ch. 80-238; s. 409, ch. 81-259; s. 2, ch. 81-318; s. 4, ch. 85-16; s. 1, ch. 89-8; ss. 72, 122, ch. 93-399.

Note.--Former s. 559.408; s. 497.043.

497.325  Illegal tying arrangements.--

(1)  No person authorized to sell grave space may tie the purchase of any grave space to the purchase of a monument from or through the seller of any other designated person or corporation.

(2)(a)  Noncemetery licensed persons and firms shall have the right to sell monuments and to perform or provide on cemetery property foundation, preparation, and installation services for monuments. However, a cemetery company may establish reasonable rules regarding the style and size of a monument or its foundation, provided such rules are applicable to all monuments from whatever source obtained and are enforced uniformly as to all monuments. Such rules shall be conspicuously posted and readily accessible to inspection and copy by interested persons.

(b)  No person who is authorized to sell grave space and no cemetery company may:

1.  Require the payment of a setting or service charge, by whatever name known, from third party installers for the placement of a monument;

2.  Refuse to provide care or maintenance for any portion of a gravesite on which a monument has been placed; or

3.  Waive liability with respect to damage caused by cemetery employees or agents to a monument after installation,

where the monument or installation service is not purchased from the person authorized to sell grave space or the cemetery company providing grave space or from or through any other person or corporation designated by the person authorized to sell grave space or the cemetery company providing grave space. No cemetery company may be held liable for the improper installation of a monument where the monument is not installed by the cemetery company or its agents.

(3)  No program offering free burial rights may be conditioned by any requirement to purchase additional burial rights, funeral merchandise, or services. Any program offering free burial rights shall comply with s. 817.415.

History.--ss. 19, 32, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 12, ch. 85-202; s. 4, ch. 88-227; s. 1, ch. 89-8; ss. 73, 122, ch. 93-399; s. 15, ch. 96-400.

Note.--Former s. 559.409; s. 497.044.

497.329  Registration of brokers of burial rights.--

(1)  No person shall receive compensation to act as a third party to the sale or transfer of three or more burial rights in a 12-month period unless the person pays a registration fee of $150 and is registered with the department in accordance with this section.

(2)  The department, by rule, shall provide for the biennial renewal of registrants and a renewal fee of $100.

(3)  This section shall not apply to persons otherwise licensed or registered pursuant to this chapter.

History.--s. 74, ch. 93-399.

497.333  Disclosure of information to public.--A licensee offering to provide burial rights, merchandise, or services to the public shall:

(1)  Provide by telephone, upon request, accurate information regarding the retail prices of burial merchandise and services offered for sale by the licensee.

(2)  Fully disclose all regularly offered services and merchandise prior to the selection of burial services or merchandise. The full disclosure required shall identify the prices of all burial rights, services, and merchandise provided by the licensee.

(3)  Not make any false or misleading statements of the legal requirement as to the necessity of a casket or outer burial container.

(4)  Provide a good faith estimate of all fees and costs the customer will incur to use any burial rights, merchandise, or services purchased.

(5)  Provide to the customer, upon request, a current copy of the bylaws of the licensee.

(6)  Provide to the customer, upon the purchase of any burial right, merchandise, or service, a written contract, the form of which has been approved by the board.

(a)  The written contract shall be completed as to all essential provisions prior to the signing of the contract by the customer.

(b)  The written contract shall provide an itemization of the amounts charged for all services, merchandise, and fees, which itemization shall be clearly and conspicuously segregated from everything else on the written contract.

(c)  A description of the merchandise covered by the contract to include, when applicable, model, manufacturer, and other relevant specifications.

(7)  Provide the licensee's policy on cancellation and refunds to each customer.

(8)  In a manner established by rule of the board, provide on the signature page, clearly and conspicuously in boldfaced 10-point type or larger, the following:

(a)  The words "purchase price."

(b)  The amount to be trusted.

(c)  The amount to be refunded upon contract cancellation.

(d)  The amounts allocated to merchandise, services, and cash advances.

(e)  The toll-free number of the department which is available for questions or complaints.

(f)  A statement that the purchaser shall have 30 days from the date of execution of contract to cancel the contract and receive a total refund of all moneys paid.

History.--s. 37, ch. 80-238; s. 2, ch. 81-318; s. 1, ch. 89-8; ss. 75, 122, ch. 93-399; s. 16, ch. 96-400.

Note.--Former s. 559.407; s. 497.046.

497.337  Prohibition on sale of personal property or services.--

(1)  This section applies to all cemetery companies licensed pursuant to this chapter that offer for sale or sell personal property or services which may be used in a cemetery in connection with the burial of human remains or the commemoration of the memory of a deceased human being and also to any person in direct written contractual relationship with licensed cemetery companies.

(2)(a)  Except as otherwise provided in this chapter, no cemetery company shall directly or indirectly enter into a contract for the sale of personal property or services, excluding burial or interment rights, which may be used in a cemetery in connection with disposing of human remains, or commemorating the memory of a deceased human being, if delivery of the personal property or performance of the service is to be made more than 120 days after receipt of final payment under the contract of sale, except as provided in s. 497.417. This shall include, but not be limited to, the sale for future delivery of burial vaults, grave liners, urns, memorials, vases, foundations, memorial bases, and similar merchandise and related services commonly sold or used in cemeteries and interment fees but excluding burial or interment rights.

(b)  For the purposes of this section, the term "delivery" means actual delivery and installation at the time of need or at the request of the owner or the owner's agent. Merchandise is not considered delivered under paragraph (a) if it is stored on the grounds of the cemetery or at a storage facility except for monuments, markers, and permanent outer burial receptacles that are stored in a protected environment and are comprised of materials designed to withstand prolonged, protected storage without adversely affecting the structural integrity or aesthetic characteristics of such permanent outer burial receptacles.

(c)  In lieu of delivery as required by paragraph (b), for sales to cemetery companies and funeral establishments, and only for such sales, the manufacturer of a permanent outer burial receptacle which meets standards adopted by the board may elect, at its discretion, to comply with the delivery requirements of this section by annually submitting, in writing, evidence of the manufacturer's financial responsibility with the board for its review and approval. The standards and procedures to establish evidence of financial responsibility shall be those in s. 497.423 or s. 497.425, with the manufacturer of permanent outer burial receptacles which meet national industry standards assuming the same rights and responsibilities as those of a certificateholder under s. 497.423 or s. 497.425.

(3)  No nonprofit cemetery corporation which has been incorporated and engaged in the cemetery business prior to and continuously since 1915 and which has current trust assets exceeding $2 million shall be required to designate a corporate trustee.

History.--s. 6, ch. 72-78; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 11, ch. 78-407; ss. 23, 39, 40, ch. 80-238; s. 411, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 2, 3, ch. 82-7; s. 13, ch. 85-202; s. 7, ch. 88-227; s. 1, ch. 89-8; ss. 76, 122, ch. 93-399.

Note.--Former s. 559.441; s. 497.048.

497.341  Burial without regard to race or color.--

(1)  No cemetery company or other legal entity conducting or maintaining any public or private cemetery may deny burial space to any person because of race or color. A cemetery company or other entity operating any cemetery may designate parts of cemeteries or burial grounds for the specific use of persons whose religious code requires isolation. Religious institution cemeteries may limit burials to members of the religious institution and their families.

(2)  Any cemetery company or other legal entity which violates the provisions of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.083, and each violation of this section constitutes a separate offense.

History.--s. 9, ch. 72-78; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 31, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 83, 122, ch. 93-399; s. 8, ch. 2000-195.

Note.--Former s. 559.52; s. 497.061.

497.345  Abandoned cemeteries; immunity; actions.--

(1)  Notwithstanding any provision of law to the contrary, a county or municipality which has within its jurisdiction an abandoned cemetery or a cemetery that has not been reasonably maintained for a period in excess of 6 months may, upon notice to the department, take such action as is necessary and appropriate to provide for maintenance and security of the cemetery. The solicitation of private funds and the expenditure of public funds for the purposes enumerated in this subsection are hereby authorized, provided that no action taken by a county or municipality under this subsection shall establish an ongoing obligation or duty to provide continuous security or maintenance for any cemetery.

(2)  No county or municipality nor any person under the supervision or direction of the county or municipality, providing good faith assistance in securing or maintaining a cemetery under subsection (1), may be subject to civil liabilities or penalties of any type for damages to property at the cemetery.

(3)  A county or municipality that has maintained or secured a cemetery pursuant to the provisions of subsection (1) may maintain an action at law against the owner of the cemetery to recover an amount equal to the value of such maintenance or security.

History.--s. 7, ch. 78-407; ss. 33, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 88-300; s. 1, ch. 89-8; ss. 84, 122, ch. 93-399.

Note.--Former s. 559.525; s. 497.071.

497.349  Inactive cemeteries.--

(1)  A licensee shall be considered inactive upon the acceptance of the surrender of its license by the department or upon the nonreceipt by the department of the license renewal fees required by s. 497.213(2).

(2)  A licensee shall cease all preneed sales to the public upon becoming inactive. At-need sales to the public shall cease within 30 days after becoming inactive.

(3)  Any licensee desiring to surrender its license to the department shall first:

(a)  File notice with the department.

(b)  Submit copies of its existing trust agreements.

(c)  Resolve to the department's satisfaction all findings and violations resulting from the last examination conducted.

(d)  Pay all outstanding fines and invoices due the department.

(e)  Submit its current license.

(4)  Upon receipt of the notice, the department shall review the licensee's:

(a)  Trust funds.

(b)  Trust agreements.

(c)  Care and maintenance of the cemetery grounds.

(5)  After a review to the department's satisfaction, the department shall terminate the license.

(6)(a)  The care and maintenance trust fund of a licensee shall be held intact and in trust after the licensee has become inactive, and funds in that trust fund shall be disbursed to the cemetery on a regular basis for the upkeep of the grounds.

(b)  The merchandise trust fund of a licensee shall be held intact and in trust after the licensee has become inactive, and the funds in that trust fund shall be disbursed in accordance with the requirements of the written contracts until the fund has been exhausted.

History.--s. 85, ch. 93-399.

497.353  Owners to provide addresses; presumption of abandonment; abandonment procedures; sale of abandoned unused burial rights.--

(1)  For purposes of this section, all owners of burial rights in any cemetery licensed under the provisions of the Florida Funeral and Cemetery Services Act shall have the legal duty to keep the cemetery companies informed in writing of their residence addresses. Cemetery companies shall notify their present burial rights owners by letter at the owner's last known address and notify all future burial rights owners, in the contract for sale and the certificate of ownership, of the requirement to keep the cemetery company informed in writing of their current residence address.

(2)  There is hereby created a presumption that burial rights in any cemetery licensed under this chapter have been abandoned when an owner of unused burial rights has failed to provide the cemetery with a current residence address for a period of 50 consecutive years and the cemetery is unable to communicate by certified letter with said owner of unused burial rights for lack of address. No such presumption of abandonment shall exist for burial rights held in common ownership which are adjoining, whether in a grave space, plot, mausoleum, columbarium, or other place of interment, if any such burial rights have been used within such common ownership.

(3)  Upon the occurrence of a presumption of abandonment as set forth in subsection (2), a cemetery may file with the department a certified notice attesting to the abandonment of the burial rights. The notice shall do the following:

(a)  Describe the burial rights certified to have been abandoned;

(b)  Set forth the name of the owner or owners of the burial rights, or if the owner is known to the cemetery to be deceased, then the names, if known to the cemetery, of such claimants as are heirs at law, next of kin, or specific devisees under the will of the owner;

(c)  Detail the facts with respect to the failure of the owner or survivors as outlined in this section to keep the cemetery informed of the owner's address for a period of 50 consecutive years or more; and

(d)  Certify that no burial right has been exercised which is held in common ownership with any abandoned burial rights as set forth in subsection (2).

(4)  Irrespective of diversity of ownership of the burial rights, a cemetery may include in its certification burial rights in as many owners as are certified to have been abandoned.

(5)  The department shall notice and publish the approved abandoned burial rights in the manner provided by s. 717.118.

(6)  Within 120 days from the final notice and publication as provided in subsection (5), the department shall notify the cemetery if there has been no claim filed for the burial rights, and the cemetery shall have the right to sell such burial rights at a public sale subject to the approval of the sale price by the department.

(7)  Notice of the time and place of any sale held pursuant to the provisions of this section shall be published by the cemetery once in a newspaper of general circulation in the county in which the cemetery is located, such publication to be not less than 30 days prior to the date of sale.

(8)  The proceeds derived from any sale shall be disbursed in the following manner: an amount specified in s. 497.245 shall be deposited to the cemetery care and maintenance trust fund; an amount equal to the cemetery company's actual and necessary costs incurred pursuant to this section but not to exceed 10 percent of the selling price of the abandoned burial right shall be deposited to the cemetery company's operating account; and the balance of the proceeds shall be deposited with the department within 20 days after receipt of said funds. The department shall deposit all funds received pursuant to this subsection in accordance with the provisions of s. 717.123.

(9)  Persons or their heirs who were owners of burial rights which were sold under this section shall have the right at any time to obtain equivalent burial rights in the cemetery without further charge. If no burial rights are desired, such persons or their heirs may obtain the amount paid to the department in accordance with the provisions of s. 717.124.

(10)  The cemetery shall set aside equivalent burial rights equal to 10 percent of the abandoned burial rights sold under this section for the exclusive use of persons or their heirs who were owners of burial rights which were sold under this section, who have the right at any time to obtain equivalent burial rights in the cemetery under this section.

(11)  Persons who purchase burial rights at a sale pursuant to this section shall have the right to sell, alienate, or otherwise transfer said burial rights subject to and in accordance with the rules and regulations of the cemetery and payment of a reasonable transfer fee.

(12)  No burial rights reacquired pursuant to this section by a cemetery may be included in determining available inventory of burial spaces or lots in the evaluation of need for new cemeteries pursuant to s. 497.201.

History.--ss. 2, 4, ch. 87-39; s. 1, ch. 89-8; ss. 86, 122, ch. 93-399; s. 43, ch. 2000-154.

Note.--Former s. 497.091.

497.357  Report of identification of exempt cemeteries.--

(1)  All cemeteries in excess of 5 acres located in this state that are exempt from the provisions of this chapter shall be required to file a report of identification with the department and pay a $25 fee. The department shall maintain such reports as public records. Such report of identification shall be refiled every 5 years pursuant to a schedule set by board rule. Solely for purposes of chapter 120, such report of identification shall be considered a registration with the department.

(2)  The report shall be submitted on a form approved by the board, and shall list the name and address of the authorized agent who is responsible for conducting the business of the cemetery and to whom inquiries about the cemetery can be directed.

(3)  The board may institute proceedings in any appropriate court for injunctive relief to enforce this section.

History.--s. 87, ch. 93-399; s. 17, ch. 96-400.

497.361  Registration of monument establishments.--

(1)  No person shall conduct, maintain, manage, or operate a monument establishment, unless such an establishment pays a registration fee of $200 and is registered with the department in accordance with this section.

(2)  A monument establishment shall be a physical structure that is located at a specific street address.

(3)  No person may engage in the retail sale of monuments or monument services to consumers, unless they are affiliated with a monument establishment, funeral establishment, or cemetery.

(4)  The department, by rule, shall provide for biennial renewal of registrants and a renewal fee of $150.

(5)  Monuments shall be delivered as established by this chapter and installed no later than 120 days after the date of sale. The establishment may request two 30-day extensions. Extensions may be granted by the executive director.

History.--s. 88, ch. 93-399; s. 18, ch. 96-400.

497.401  Preneed sales; chapter exclusive; applicability of other laws.--Except as provided in this chapter, preneed funeral merchandise or service contract businesses and preneed burial merchandise or service contract businesses shall be governed by this chapter and shall be exempt from all provisions of the Florida Insurance Code.

History.--ss. 21, 52, ch. 85-321; ss. 90, 122, ch. 93-399.

Note.--Former s. 639.085.

497.403  Insurance business not authorized.--Nothing in the Florida Insurance Code or this chapter shall be deemed to authorize any preneed funeral merchandise or service contract business or any preneed burial merchandise or service business to transact any insurance business, other than that of preneed funeral merchandise or service insurance or preneed burial merchandise or service insurance, or otherwise to engage in any other type of insurance unless it is authorized under a certificate of authority issued by the Department of Insurance under the provisions of the Florida Insurance Code. Any insurance business transacted under this section must comply with the provisions of s. 626.785.

History.--ss. 22, 52, ch. 85-321; ss. 91, 122, ch. 93-399.

Note.--Former s. 639.087.

497.405  Certificate of authority required.--

(1)(a)  No person, including any cemetery exempt under s. 497.003, may sell a preneed contract without first having a valid certificate of authority.

(b)  No person, including any cemetery exempt under s. 497.003, may sell services, merchandise, or burial rights on a preneed basis unless such person is authorized pursuant to this chapter to provide such services, merchandise, or burial rights on an at-need basis.

(2)(a)  No person may receive any funds for payment on a preneed contract who does not hold a valid certificate of authority.

(b)  The provisions of paragraph (a) do not apply to any trust company or to any national or state bank or savings and loan association having trust powers which company, bank, or association receives any money in trust pursuant to the sale of a preneed contract.

(c)  The provisions of paragraph (a) do not apply to any Florida corporation existing under chapter 607 acting as a servicing agent hereunder in which the stock of such corporation is held by 100 or more persons licensed pursuant to chapter 470, provided no one stockholder holds, owns, votes, or has proxies for more than 5 percent of the issued stock of such corporation; provided the corporation has a blanket fidelity bond, covering all employees handling the funds, in the amount of $50,000 or more issued by a licensed insurance carrier in this state; and provided the corporation processes the funds directly to and from the trustee within the applicable time limits set forth in this chapter. The department may require any person claiming that the provisions of this paragraph exempt it from the provisions of paragraph (a) to demonstrate to the satisfaction of the department that it meets the requirements of this paragraph.

(3)  No person may obtain a certificate of authority under this chapter for the preneed sale of services unless such person or its agent, in the case of a corporate entity, holds a license as a funeral establishment or cemetery company or registration as a direct disposal establishment under chapter 470.

(4)  The provisions of this section do not apply to religious-institution-owned cemeteries exempt under s. 497.003(1)(d), in counties with a population of at least 960,000 persons on July 1, 1996, with respect to the sale to the religious institution's members and their families of interment rights, mausoleums, crypts, cremation niches, vaults, liners, urns, memorials, vases, foundations, memorial bases, floral arrangements, monuments, markers, engraving, and the opening and closing of interment rights, mausoleums, crypts and cremation niches, if such cemeteries have engaged in the sale of preneed contracts prior to October 1, 1993, and maintain a positive net worth at the end of each fiscal year of the cemetery.

History.--s. 4, ch. 28211, 1953; s. 24, ch. 57-1; s. 5, ch. 65-393; ss. 13, 35, ch. 69-106; s. 3, ch. 77-438; s. 2, ch. 81-318; ss. 3, 31, 32, ch. 83-316; s. 3, ch. 88-139; ss. 92, 122, ch. 93-399; s. 19, ch. 96-400; s. 9, ch. 2000-195.

Note.--Former s. 639.09.

497.407  Certificate of authority; annual statement; renewal; transfer.--

(1)  An application to the board for a certificate of authority shall be accompanied by the statement and other matters described in this section in the form prescribed by the board. Annually thereafter, within 3 months after the end of its fiscal period, or within an extension of time therefor, as the board for good cause may grant, the person authorized to engage in the sale of preneed contracts shall file with the department a full and true statement of her or his financial condition, transactions, and affairs, prepared on a basis as adopted by rule of the board, as of the preceding fiscal period or at such other time or times as the board may provide by rule, together with information and data which may be required by the board.

(2)  The statement shall include the following:

(a)  The types of preneed contracts proposed to be written.

(b)  The name and address of the place of business of the person offering to write preneed contracts.

(c)  Evidence that the person offering the statement:

1.  Has the ability to discharge her or his liabilities as they become due in the normal course of business and has sufficient funds available during the calendar year to perform her or his obligations under her or his contract;

2.  Has complied with the trust requirements for the funds received under contracts issued by herself or himself as hereinafter described;

3.  Has disbursed interest, dividends, or accretions earned by trust funds, in accordance with this chapter and rules promulgated thereunder; and

4.  Has complied with this chapter and any rules of the board and the department.

(d)  Any other information considered necessary by the board to meet its responsibilities under this chapter.

(3)  If the person is an individual, the statement shall be sworn by her or him; if a firm or association, by all members thereof; or, if a corporation, by any officer of the corporation.

(4)(a)  An application to the board for an initial certificate of authority shall be accompanied by an application fee of $500. Thereafter, each annual application for renewal of a certificate of authority shall be accompanied by the appropriate fee as follows:

1.  For a certificateholder with no preneed contract sales during the immediately preceding year ....... $300.

2.  For a certificateholder with at least 1 but fewer than 50 preneed contract sales during the immediately preceding year ....... $400.

3.  For a certificateholder with at least 50 but fewer than 250 preneed contract sales during the immediately preceding year ....... $500.

4.  For a certificateholder with at least 250 but fewer than 1,000 preneed contract sales during the immediately preceding year ....... $850.

5.  For a certificateholder with at least 1,000 but fewer than 2,500 preneed contract sales during the immediately preceding year ....... $1,500.

6.  For a certificateholder with at least 2,500 but fewer than 5,000 preneed contract sales during the immediately preceding year ....... $2,500.

7.  For a certificateholder with at least 5,000 but fewer than 15,000 preneed contract sales during the immediately preceding year ....... $6,000.

8.  For a certificateholder with at least 15,000 but fewer than 30,000 preneed contract sales during the immediately preceding year ....... $12,500.

9.  For a certificateholder with 30,000 preneed contract sales or more during the immediately preceding year ....... $18,500.

(b)  Any person or entity that is part of a common business enterprise that has a certificate of authority issued pursuant to this section and elects to operate under a name other than that of the common business enterprise shall submit an application on a form adopted by the board to become a branch registrant. Upon the approval of the board that such entity qualifies to sell preneed contracts under this chapter except for the requirements of subparagraph (2)(c)1. and if the certificateholder meets the requirements of such subparagraph, a branch registration shall be issued. Each branch registrant may operate under the certificate of authority of the common business enterprise upon the payment of a fee established by the board not to exceed $150 accompanying the application on April 1 annually. The fee shall be payable to the department's Regulatory Trust Fund.

(5)  Upon the board being satisfied that the statement and matters which may accompany it meet the requirements of this chapter and of its rules, it shall issue or renew the certificate of authority if upon investigation by the board it appears that the principals, including directors, officers, stockholders, employees, and agents of such person, are of good moral character and have reputations for fair dealing in business matters.

(6)  The certificate of authority shall expire annually on June 1, unless renewed, or at such other time or times as the board may provide by rule.

(7)  An application for an initial certificate of authority or for the annual renewal of the certificate shall disclose the existence of all preneed contracts for service or merchandise funded by any method other than a method permitted by this chapter, which contracts are known to the applicant and name the applicant or her or his business as the beneficiary upon the death of the purchaser of the preneed contract. Such disclosure shall include the name and address of the contract purchaser, the name and address of the institution where such funds are deposited, and the number used by the institution to identify the account. With respect to contracts entered into before January 1, 1983, the board may not deny or refuse to renew a certificate of authority solely on the basis of such disclosure. The board may not require the purchaser of any such contract to liquidate the account if such account was established before July 1, 1965. The board may use the information disclosed to notify the contract purchaser and the institution in which such funds are deposited should the holder of a certificate of authority be unable to fulfill the requirements of the contract.

(8)  On or before April 1 of each year, the certificateholder shall file with the board in the form prescribed by the board a full and true statement as to the activities of any trust established by it pursuant to this chapter for the preceding calendar year.

(9)  In addition to any other penalty that may be provided for under this chapter, the board may levy a fine not to exceed $50 a day for each day the certificateholder fails to file its annual statement, and the board may levy a fine not to exceed $50 a day for each day the certificateholder fails to file the statement of activities of the trust. Upon notice to the certificateholder by the board that the certificateholder has failed to file the annual statement or the statement of activities of the trust, the certificateholder's authority to sell preneed contracts shall cease while such default continues. The board shall deposit all sums collected under this section to the credit of the department's Regulatory Trust Fund.

(10)  To facilitate uniformity in financial statements and to facilitate department analysis, the board may by rule adopt a form for financial statements.

(11)  The board may authorize the transfer of certificates of authority and establish fees for the transfer in an amount not to exceed $100. Upon receipt of an application for transfer, the executive director may grant a temporary certificate of authority to the proposed transferee, based upon criteria established by the board by rule, which criteria shall promote the purposes of this chapter in protecting the consumer. Such a temporary certificate of authority shall expire at the conclusion of the next regular meeting of the board unless renewed by the board.

(12)  Each certificateholder shall pay to the department's Regulatory Trust Fund an amount established by the board not to exceed $10 for each preneed contract entered into. This amount must be paid within 60 days after the end of each quarter. These funds must be used to defray the cost of the board and the department in administering the provisions of this chapter.

History.--s. 5, ch. 28211, 1953; ss. 6, 7, ch. 65-393; ss. 13, 35, ch. 69-106; s. 4, ch. 77-438; s. 169, ch. 79-164; s. 246, ch. 79-400; s. 2, ch. 81-318; ss. 4, 31, 32, ch. 83-316; s. 2, ch. 85-89; s. 4, ch. 88-139; ss. 93, 122, ch. 93-399; s. 20, ch. 96-400; s. 1147, ch. 97-103; s. 27, ch. 99-155; s. 10, ch. 2000-195.

Note.--Former s. 639.10.

497.409  Approval of forms.--

(1)  Preneed contract forms and related forms shall be filed with and approved by the board. The board may not approve any preneed contract form that does not provide for sequential prenumbering thereon.

(2)  Specific disclosure regarding the certificateholder's ability to select either trust funding or the financial responsibility alternative as set forth in s. 497.423 or s. 497.425 in connection with the receipt of preneed contract proceeds is required in the preneed contract.

History.--ss. 5, 32, ch. 83-316; s. 5, ch. 88-139; ss. 94, 122, ch. 93-399.

Note.--Former s. 639.105.

497.411  Nonconforming contracts.--Any preneed contract that requires the moneys paid to the seller or trustee to be placed in trust and fails to comply with s. 497.417 shall comply with and be construed under s. 497.429.

History.--ss. 6, 17, ch. 88-139; ss. 95, 122, ch. 93-399.

Note.--Former s. 639.107.

497.413  Preneed Funeral Contract Consumer Protection Trust Fund.--

(1)  There is hereby created in the department the Preneed Funeral Contract Consumer Protection Trust Fund to be administered and regulated by the board.

(2)  Within 60 days after the end of each calendar quarter, for each preneed contract written during the quarter and not canceled within 30 days after the date of the execution of the contract, each certificateholder, whether funding preneed contracts by the sale of insurance or by establishing a trust pursuant to s. 497.417 or s. 497.429, shall remit the sum of $2.50 for each preneed contract having a purchase price of $1,500 or less, and the sum of $5 for each preneed contract having a purchase price in excess of $1,500; and each certificateholder utilizing s. 497.423 or s. 497.425 shall remit the sum of $5 for each preneed contract having a purchase price of $1,500 or less, and the sum of $10 for each preneed contract having a purchase price in excess of $1,500.

(3)  In addition to the amounts specified in subsection (2), each remittance shall contain such other additional information as needed by the board to carry out its responsibilities under this chapter and as prescribed by rule of the board.

(4)  All funds received by the board or the department pursuant to this section shall be deposited into the Preneed Funeral Contract Consumer Protection Trust Fund.

(5)  The amounts remitted for deposit into the Preneed Funeral Contract Consumer Protection Trust Fund shall not be deemed proceeds from the sale of a preneed contract within the meaning of this chapter.

(6)  Upon the commencement of a delinquency proceeding pursuant to this chapter against a certificateholder, the board may use up to 50 percent of the balance of the trust fund not already committed to a prior delinquency proceeding solely for the purpose of providing restitution to preneed contract purchasers and their estates due to a certificateholder's failure to provide the benefits of a preneed contract or failure to refund the appropriate principal amount by reason of cancellation thereof. The balance of the trust fund shall be determined as of the date of the delinquency proceeding.

(7)  In any situation in which a delinquency proceeding has not commenced, the board may, in its discretion, use the trust fund for the purpose of providing restitution to any consumer, owner, or beneficiary of a preneed contract or similar regulated arrangement under this chapter entered into after June 30, 1977. If, after investigation, the board determines that a certificateholder has breached a preneed contract by failing to provide benefits or an appropriate refund, or that a provider, who is a former certificateholder or an establishment which has been regulated under this chapter or chapter 470, has sold a preneed contract and has failed to fulfill the arrangement or provide the appropriate refund, and such certificateholder or provider does not provide or does not possess adequate funds to provide appropriate refunds, payments from the trust fund may be authorized by the board. In considering whether payments shall be made or when considering who will be responsible for such payments, the board shall consider whether the certificateholder or previous provider has been acquired by a successor who is or should be responsible for the liabilities of the defaulting entity. With respect to preneed contracts funded by life insurance, payments from the fund shall be made: if the insurer is insolvent, but only to the extent that funds are not available through the liquidation proceeding of the insurer; or if the certificateholder is unable to perform under the contract and the insurance proceeds are not sufficient to cover the cost of the merchandise and services contracted for. In no event shall the board approve payments in excess of the insurance policy limits unless it determines that at the time of sale of the preneed contract, the insurance policy would have paid for the services and merchandise contracted for. Such monetary relief shall be in an amount as the board may determine and shall be payable in such manner and upon such conditions and terms as the board may prescribe. However, with respect to preneed contracts to be funded pursuant to s. 497.417, s. 497.419, s. 497.423, or s. 497.425, any restitution made pursuant to this subsection shall not exceed, as to any single contract or arrangement, the lesser of the gross amount paid under the contract or 4 percent of the uncommitted assets of the trust fund. With respect to preneed contracts funded by life insurance policies, any restitution shall not exceed, as to any single contract or arrangement, the lesser of the face amount of the policy, the actual cost of the arrangement contracted for, or 4 percent of the uncommitted assets of the trust fund. The total of all restitutions made to all applicants under this subsection in a single fiscal year shall not exceed the greater of 30 percent of the uncommitted assets of the trust fund as of the end of the most recent fiscal year or $120,000. The department may use moneys in the trust fund to contract with independent vendors pursuant to chapter 287 to administer the requirements of this subsection.

(8)  All moneys deposited in the Preneed Funeral Contract Consumer Protection Trust Fund together with all accumulated income shall be used only for the purposes expressed in this section and shall not be subject to any liens, charges, judgments, garnishments, or other creditor's claims against the certificateholder, any trustee utilized by the certificateholder, any company providing a surety bond as specified in this chapter, or any purchaser of a preneed contract. No preneed contract purchaser shall have any vested rights in the trust fund.

(9)  If restitution is paid to a preneed contract purchaser or her or his estate in accordance with this section, the amount of restitution paid shall not exceed the gross amount of the principal payments made by the purchaser on its contract.

(10)  Whenever the board makes payments from the trust fund to a purchaser or its estate, the board shall be subrogated to the purchaser's rights under the contract, and any amounts so collected by the board shall be deposited in the Preneed Funeral Contract Consumer Protection Trust Fund.

(11)  No person shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio station or television station, or in any other way, any advertisement, announcement, or statement which uses the existence of the Preneed Funeral Contract Consumer Protection Trust Fund for the purpose of sales, solicitation, or inducement to purchase any form of preneed contract covered under this chapter.

(12)  Notwithstanding the fee structure in subsection (2), the department shall review the status of the trust fund annually, and if it determines that the uncommitted trust fund balance exceeds $1 million, the board may by rule lower the required payments to the trust fund to an amount not less than $1 per preneed contract.

History.--ss. 7, 17, ch. 88-139; s. 67, ch. 89-360; s. 1, ch. 92-97; ss. 96, 122, ch. 93-399; s. 21, ch. 96-400; s. 1148, ch. 97-103.

Note.--Former s. 639.108.

497.415  Ownership of proceeds received on contracts.--

(1)  Subject to the provisions of this chapter, all funds paid pursuant to a preneed contract by a purchaser to a certificateholder shall be the sole property of, and within the full dominion and control of, said certificateholder.

(2)  Subject to the provisions of this chapter, the relationship between the purchaser of a preneed contract and a certificateholder shall be deemed for all purposes as a debtor-creditor relationship.

History.--ss. 8, 17, ch. 88-139; ss. 97, 122, ch. 93-399.

Note.--Former s. 639.109.

497.417  Disposition of proceeds received on contracts.--

(1)  Any person who is paid, collects, or receives funds under a preneed contract for funeral services or merchandise or burial services or merchandise shall deposit in this state an amount at least equal to the sum of 70 percent of the purchase price collected for all services sold and facilities rented; 100 percent of the purchase price collected for all cash advance items sold; and 30 percent of the purchase price collected or 110 percent of the wholesale cost, whichever is greater, for each item of merchandise sold. The method of determining wholesale cost shall be established by rule of the board and shall be based upon the certificateholder's stated wholesale cost for the 12-month period beginning July 1 during which the initial deposit to the preneed trust fund for the preneed contract is made. Such deposits shall be made within 30 days after the end of the calendar month in which payment is received, under the terms of a revocable trust instrument entered into with a national or state bank or savings and loan association having trust powers or a trust company. The trustee shall take title to the property conveyed to the trust for the purpose of investing, protecting, and conserving it for the certificateholder; collecting income; and distributing the principal and income as prescribed in this chapter. The certificateholder is prohibited from sharing in the discharge of these responsibilities, except that the certificateholder may request the trustee to invest in tax-free investments and may appoint an adviser to the trustee. The trust agreement shall be submitted to the board for approval and filing. The funds shall be held in trust, both as to principal and income earned thereon, and shall remain intact, except that the cost of the operation of the trust or trust account authorized by this section may be deducted from the income earned thereon. The contract purchaser shall have no interest whatsoever in, or power whatsoever over, funds deposited in trust pursuant to this section. In no event may said funds be loaned to a certificateholder, an affiliate of a certificateholder, or any person directly or indirectly engaged in the burial, funeral home, or cemetery business. Furthermore, the certificateholder's interest in said trust shall not be pledged as collateral for any loans, debts, or liabilities of the certificateholder and shall not be transferred to any person without the prior written approval from the department and the trustee which shall not be unreasonably withheld. Even though the certificateholder shall be deemed and treated as the settlor and beneficiary of said trust for all purposes, all of said trust funds are exempt from all claims of creditors of the certificateholder except as to the claims of the contract purchaser, her or his representative, the board, or the department.

(2)  Except as provided in s. 497.337, the delivery of funeral merchandise before the death of the person for whom it is purchased does not constitute performance or fulfillment, either wholly or in part, of any preneed contract entered into after July 1, 1977.

(3)  The trustee shall make regular valuations of assets it holds in trust and provide a report of such valuations to the certificateholder at least quarterly. Any person who withdraws appreciation in the value of trust, other than the pro rata portion of such appreciation which may be withdrawn upon the death of a contract beneficiary or upon cancellation of a preneed contract, shall be required to make additional deposits from her or his own funds to restore the aggregate value of assets to the value of funds deposited in trust, but excluding from the funds deposited those funds paid out upon preneed contracts which such person has fully performed or which have been otherwise withdrawn, as provided for in this chapter. The certificateholder shall be liable to third parties to the extent that income from the trust is not sufficient to pay the expenses of the trust.

(4)  The trustee of the trust established pursuant to this section shall only have the power to:

(a)  Invest in investments as prescribed in s. 215.47 and exercise the powers set forth in part IV of chapter 737, provided that the board may by order require the trustee to liquidate or dispose of any investment within 30 days after such order.

(b)  Borrow money up to an aggregate amount of 10 percent of trust assets, at interest rates then prevailing from any individual, bank, insurance company, or other source, irrespective of whether any such person is then acting as trustee, and to create security interests in no more than 10 percent of trust assets by mortgage, pledge, or otherwise, upon the terms and conditions and for such purposes as the trustee may deem advisable.

(c)  Commingle the property of the trust with the property of any other trust established pursuant to this chapter and make corresponding allocations and divisions of assets, liabilities, income, and expenses.

(5)  The certificateholder, at her or his election, shall have the right and power, at any time, to revest in it title to the trust assets, or its pro rata share thereof, provided it has complied with s. 497.423 or s. 497.425. Notwithstanding anything contained in this chapter to the contrary, the certificateholder, via its election to sell or offer for sale preneed contracts subject to this section, shall represent and warrant, and is hereby deemed to have done such, to all federal and Florida taxing authorities, as well as to all potential and actual preneed contract purchasers, that s. 497.423 or s. 497.425 is a viable option available to it at any and all relevant times. If in the certificateholder's opinion it does not have the ability to select the financial responsibility alternative of s. 497.423 or s. 497.425, then it shall not have the right to sell or solicit contracts pursuant to this section.

(6)  This section, as amended by s. 6, chapter 83-316, Laws of Florida, applies to preneed contracts entered into before October 1, 1993, and as amended by s. 98, chapter 93-399, Laws of Florida, applies to preneed contracts entered into on or after October 1, 1993.

History.--s. 6, ch. 28211, 1953; s. 8, ch. 65-393; s. 5, ch. 77-438; s. 247, ch. 79-400; s. 2, ch. 81-318; ss. 6, 31, 32, 33, ch. 83-316; s. 9, ch. 88-139; s. 68, ch. 89-360; ss. 98, 122, ch. 93-399; s. 22, ch. 96-400; s. 1149, ch. 97-103; s. 8, ch. 98-268.

Note.--Former s. 639.11.

497.419  Cancellation of, or default on, preneed contracts.--

(1)  A purchaser, by providing written notice to the certificateholder, may cancel a preneed contract within 30 days of the date that the contract was executed provided that the burial rights, merchandise and services have not yet been used. Upon providing such notice, the purchaser shall be entitled to a complete refund of the amount paid, except for the amount allocable to any burial rights, merchandise or services that have been used, and shall be released from all obligations under the contract. This subsection shall apply to all items that are purchased as part of a preneed contract, including burial rights, regardless of whether such burial rights are purchased as part of a preneed contract or purchased separately.

(2)  A purchaser, by providing written notice to the certificateholder, may cancel the services, facilities, and cash advance items portions of a preneed contract at any time, and shall be entitled to a full refund of the purchase price allocable to such items. Any accumulated earnings allocable to such preneed contract shall be paid to the certificateholder upon such cancellation.

(3)  Subject to paragraphs (a) and (b) a purchaser may cancel the merchandise portion of a preneed contract by providing written notice to the certificateholder, and shall be entitled to a full refund of the purchase price allocable to the specific item or items of merchandise that the certificateholder cannot or does not deliver in accordance with this subsection.

(a)  Such refund shall be provided only if at the time that the certificateholder is required to fulfill its obligations under the preneed contract the certificateholder does not or cannot comply with the terms of the contract by actually delivering the merchandise, within a reasonable time, depending upon the nature of the merchandise purchased, after having been requested to do so.

(b)  In order to fulfill its obligations under the preneed contract, a certificateholder may elect either or both of the following options:

1.  Subcontract with a person located outside the certificateholder's market area to provide the merchandise; or

2.  Provide other items of equal or greater quality.

(4)  Each certificateholder shall provide in conspicuous type in its contract that the contract purchaser may cancel the contract and receive a full refund within 30 days of the date of execution of the contract. The failure to make such provision shall not impair the contract purchaser's right to cancellation and refund as provided in this section.

(5)  Upon breach of contract or failure of the certificateholder to provide funeral merchandise or services under a preneed contract, the contract purchaser shall be entitled to a refund of all money paid on the contract. Such refund shall be made within 30 days after receipt by the certificateholder of the contract purchaser's written request for refund.

(6)  If a purchaser is 90 days past due in making payments on a preneed contract, the contract shall be considered to be in default, and the certificateholder shall be entitled to cancel the contract, withdraw all funds in trust allocable to merchandise items, and retain such funds as liquidated damages. Upon making such withdrawal, the certificateholder shall return all funds in trust allocable to services, facilities, or cash advance items to the purchaser, provided that the certificateholder has provided the purchaser with 30 days' written notice of its intention to exercise any of its rights under this provision.

(7)  All preneed contracts are cancelable and revocable as provided in this section, provided that a preneed contract does not restrict any contract purchaser who is a qualified applicant for, or a recipient of, supplemental security income, temporary cash assistance, or Medicaid from making her or his contract irrevocable.

(8)  This section, as amended by s. 7, chapter 83-316, Laws of Florida, applies to preneed contracts entered into before October 1, 1993, and as amended by s. 98, chapter 93-399, Laws of Florida, applies to preneed contracts entered into on or after October 1, 1993.

(9)  Persons who purchase merchandise or burial rights pursuant to this chapter shall have the right to sell, alienate, or otherwise transfer the merchandise or burial rights subject to and in accordance with rules adopted by the board.

(10)  All refunds required to be made under this section to a purchaser who has canceled a contract must be made within 30 days after the date written notice of cancellation is received by the certificateholder.

History.--s. 8, ch. 28211, 1953; s. 10, ch. 65-393; s. 6, ch. 77-438; s. 1, ch. 78-276; s. 2, ch. 81-318; s. 2, ch. 82-159; ss. 7, 31, 32, 33, ch. 83-316; s. 10, ch. 88-139; ss. 99, 122, ch. 93-399; s. 105, ch. 96-175; s. 23, ch. 96-400; s. 1150, ch. 97-103; s. 151, ch. 2000-165.

Note.--Former s. 639.13.

497.421  Payment of funds upon death of named beneficiary.--Disbursements of funds discharging any preneed contract fulfilled after September 30, 1993, shall be made by the trustee to the certificateholder upon receipt of a certified copy of the death certificate of the contract beneficiary or satisfactory evidence as established by the board that the preneed contract has been performed in whole or in part. However, if the contract is only partially performed, the disbursement shall only cover that portion of the contract performed. In the event of any contract default by the contract purchaser, or in the event that the funeral merchandise or service or burial merchandise or service contracted for is not provided or is not desired by the heirs or personal representative of the contract beneficiary, the trustee shall return, within 30 days after its receipt of a written request therefor, funds paid on the contract to the certificateholder or to its assigns, subject to the provisions of s. 497.419.

History.--s. 9, ch. 28211, 1953; s. 11, ch. 65-393; s. 7, ch. 77-438; s. 2, ch. 78-276; s. 2, ch. 81-318; ss. 8, 31, 32, ch. 83-316; s. 11, ch. 88-139; ss. 100, 122, ch. 93-399; s. 24, ch. 96-400.

Note.--Former s. 639.14.

497.423  Evidence of financial responsibility as alternative to trust deposit.--

(1)  In lieu of depositing funds into a trust as required by s. 497.417(1) or s. 497.429, a certificateholder may elect annually, at its discretion, to comply with this section by filing annually a written request with, and receiving annual approval from, the board.

(2)  No certificateholder shall utilize this section unless it has filed annually a written request with, and received approval by, the board.

(3)  The certificateholder receiving approval from the board to comply with this section shall maintain compliance with this section at all times during the period this election is in effect.

(4)  The certificateholder's request to be governed by this section shall be in the form prescribed by the board and shall be accompanied by, in addition to other information that the board may require by rule, the surety bond, the audited financial statements, and proof of the other requirements specified in this section, all as described in this section.

(5)  For each 12-month period, or any part thereof, in which this section is applicable, the electing certificateholder shall maintain a bond, issued by a surety company admitted to do business in this state, in an amount at least equal to the sum of all amounts not currently in trust, an amount equal to the total purchase price for all installed preneed contracts where the total purchase price has not been collected, excluding those amounts already in trust, all amounts the certificateholder intends to remove from trust if the board approves the certificateholder's request to comply with this section, and an amount equal to 70 percent of the total purchase price for each preneed contract the certificateholder expects to sell in the year for which the certificateholder is electing to comply with this section. The surety bond shall be conditioned in such a manner to secure the faithful performance of all conditions of any preneed contracts for which the certificateholder was required to have covered by the amount of the bond, including refunds requested pursuant to ss. 497.419 and 497.421. The surety bond shall also guarantee the financial responsibility of such certificateholder against its default arising out of any of its preneed contracts. The terms of the surety bond shall cover liabilities arising from all moneys received by the electing certificateholder from preneed contracts for which the certificateholder was required to have covered by the amount of the bond during the time the bond is in effect, and the liability of the surety shall continue until the contracts thereunder are fulfilled. The bond shall be in favor of the state for the benefit of any person damaged as a result of purchasing a preneed contract from the certificateholder. The aggregate liability of the surety to all persons for all breaches of the conditions of the bonds shall in no event exceed the amount of the bond. The per preneed contract liability shall not exceed the amount of the funds received by the certificateholder per preneed contract during the effective period in which the bond is issued. The bond shall be filed and maintained with the board.

(6)  The amount of the surety bond shall, upon order of the board, be increased if, in the board's discretion, it finds such increase to be warranted by the volume of preneed contracts handled, or expected to be handled, by the certificateholder. The surety bond shall be in a form to be approved by the board, and the board shall have the right to disapprove any bond which does not provide assurance as provided in, and required by, this section.

(7)  The bond shall be maintained unimpaired for as long as the certificateholder continues in business in this state and continues to utilize this section. Whenever the certificateholder notifies the board that it no longer desires to be governed by this section and furnishes to the board satisfactory proof that it has discharged or otherwise adequately provided for all of its obligations to its preneed contract purchasers covered by the bond, such as by evidence satisfactory to the board demonstrating that s. 497.417 or s. 497.429 has been complied with, the board shall release the bond to the entitled parties, provided said parties acknowledge receipt of same.

(8)  No surety bond used to comply with this section shall be canceled or subject to cancellation unless at least 60 days' advance notice thereof, in writing, is filed with the board, by the surety company. The cancellation of the bond shall not relieve the obligation of the surety company for claims arising out of contracts issued or otherwise covered before cancellation of the bond. In the event that notice of termination of the bond is filed with the board, the certificateholder insured thereunder shall, within 30 days of the filing of the notice of termination with the board, provide the board with a replacement bond or with evidence which is satisfactory to the board demonstrating that s. 497.417 or s. 497.429 has been fully complied with. If within 30 days of filing of the notice of termination with the board no replacement bond acceptable to the board or no evidence satisfactory to the board demonstrating that s. 497.417 or s. 497.429 has been complied with is filed with the board, the board shall suspend the license of the certificateholder until the certificateholder files a replacement bond acceptable to the board or demonstrates to the satisfaction of the board that it has complied with s. 497.417 or s. 497.429.

(9)  In lieu of the surety bond, the board may provide by rule for other forms of security or insurance.

(10)  Every certificateholder electing to be governed by this section shall have its financial statements, submitted to the department pursuant to s. 497.407, audited by an independent public accountant certified pursuant to chapter 473. The financial statements shall contain, in accordance with generally accepted accounting principles, for two or more consecutive annual periods, the following:

(a)  The certified public accountant's unqualified opinion or, in the case of a qualified opinion, a qualified opinion acceptable to the board, and:

1.  A balance sheet;

2.  A statement of income and expenses; and

3.  A statement of changes in financial position.

(b)  Notes to the financial statements considered customary or necessary for full disclosure and adequate understanding of the financial statements, financial condition, and operation of the certificateholder. The notes shall include a schedule, based upon statutory accounting principles, indicating that the certificateholder which has held a certificate pursuant to this chapter for less than 10 years has a current ratio of no less than 3 to 1 of current assets to current liabilities and net assets of at least $600,000 or that the certificateholder which has held a certificate pursuant to this chapter for 10 years or more has a current ratio of no less than 2 to 1 of current assets to current liabilities and net assets of at least $400,000.

(c)  An indication that the certificateholder has sufficient funds available to perform the obligations under all its preneed contracts.

(11)  The board may require that the audited financial statements be prepared on a calendar-year basis.

(12)  The electing certificateholder shall provide the board interim unaudited financial statements on a quarterly basis demonstrating financial compliance with this section.

(13)  In lieu of subsections (4)-(11), a certificateholder with net assets of at least $25,000 may request to comply with this section by providing a written guarantee from a qualified guaranteeing organization. If the certificateholder so elects, the certificateholder's requests to be governed by this section shall be in the form prescribed by the board and shall be accompanied by, in addition to other information the board may require by rule, a written guarantee approved by the board as meeting the requirements of this section from a qualified guaranteeing organization, acceptable to the board, which:

(a)  Is either a certificateholder or servicing agent.

(b)  Is a corporation formed under the laws of this state or of another state, district, territory, or possession of the United States.

(c)  Has been in operation for 10 or more years.

(d)  Submits to the board its annual financial statements audited by an independent public accountant certified pursuant to chapter 473. The financial statements shall contain, in accordance with generally accepted accounting principles, for two or more consecutive annual periods, the following:

1.  The certified public accountant's unqualified opinion or, in the case of a qualified opinion, a qualified opinion acceptable to the board, and:

a.  A balance sheet;

b.  A statement of income and expenses; and

c.  A statement of changes in financial position.

2.  Notes to the financial statements considered customary or necessary for full disclosure and adequate understanding of the financial statements, financial condition, and operation of the certificateholder. The notes shall include a schedule, based upon statutory accounting principles, indicating that the guaranteeing organization has a current ratio of no less than 2 to 1 of current assets to current liabilities and net assets of at least $250,000.

(e)  Has sufficient funds available to perform the obligations under its guarantees.

(f)  Has complied with subsections (5), (6), (7), and (8), except that the bond shall be maintained by the guaranteeing organization in the minimum aggregate principal amount of $1 million.

(g)  Has principals, including directors, officers, stockholders, employees, and agents that are of good moral character and have reputations for fair dealing in business matters, both as determined by the board.

History.--ss. 12, 17, ch. 88-139; ss. 101, 122, ch. 93-399.

Note.--Former s. 639.145.

497.425  Alternatives to deposits under s. 497.417.--

(1)(a)  As an alternative to the requirements of s. 497.417 that relate to trust funds, a certificateholder may purchase a surety bond in an amount not less than the aggregate value of outstanding liabilities on undelivered preneed contracts for merchandise and services. For the purpose of this section, the term "outstanding liabilities" means the gross replacement or wholesale value of the preneed merchandise and services. The bond shall be made payable to the State of Florida for the benefit of the board and all purchasers of preneed cemetery merchandise or services. The bond must be approved by the board.

(b)  The amount of the bond shall be based on a report documenting the outstanding liabilities of the certificateholder and shall be prepared by the certificateholder using generally accepted accounting principles and signed by the certificateholder's chief financial officer.

(c)  The report shall be compiled as of the end of the certificateholder's fiscal year and updated annually. The amount of the bond shall be increased or decreased as necessary to correlate with changes in the outstanding liabilities.

(d)  If a certificateholder fails to maintain a bond pursuant to this section, the certificateholder shall cease the sale of preneed merchandise and services.

(2)  Upon prior approval by the board, the certificateholder may file a letter of credit with the board in lieu of a surety bond. Such letter of credit must be in a form, and is subject to terms and conditions, prescribed by the board. It may be revoked only with the express approval of the board.

(3)(a)  A buyer of preneed merchandise or services who does not receive such services or merchandise due to the economic failure, closing, or bankruptcy of the certificateholder must file a claim with the surety as a prerequisite to payment of the claim and, if the claim is not paid, may bring an action based on the bond and recover against the surety. In the case of a letter of credit or cash deposit that has been filed with the board, the buyer may file a claim with the board.

(b)  In order to qualify for recovery on any claim under paragraph (a), the buyer must file the claim no later than 1 year after the date on which the certificateholder closed or bankruptcy was filed.

(c)  The board may file a claim with the surety on behalf of any buyer under paragraph (a). The surety shall pay the amount of the claims to the board for distribution to claimants entitled to restitution and shall be relieved of liability to that extent.

(d)  The liability of the surety under any bond may not exceed the aggregate amount of the bond, regardless of the number or amount of claims filed.

(e)  If the total value of the claims filed exceeds the amount of the bond, the surety shall pay the amount of the bond to the board for distribution to claimants entitled to restitution and shall be relieved of all liability under the bond.

(4)  The certificateholder shall maintain accurate records of the bond and premium payments on it, which records shall be open to inspection by the board.

(5)  For purposes of this section, a preneed contract is a contract calling for the delivery of merchandise and services in the future and entered into before the death of the prospective recipient.

(6)  This act does not relieve the certificateholder or other entity from liability for nonperformance of contractual terms unless the certificateholder cannot deliver the merchandise or services because of a national emergency, strike, or act of God.

(7)  The board may require the holder of any assets of the certificateholder to furnish written verification of the financial report required to be submitted by the certificateholder or other entity.

(8)  Any preneed contract which promises future delivery of merchandise at no cost constitutes a paid-up contract. Merchandise which has been delivered is not covered by the required performance bond or letter of credit even though the contract is not completely paid. The certificateholder may not cancel a contract unless the purchaser is in default according to the terms of the contract. A contract sold, discounted, and transferred to a third party constitutes a paid-up contract for the purposes of the performance bond or letter of credit.

(9)  Each contract must state the type, size, and design of merchandise and the description of service to be delivered or performed.

(10)  A purchaser and a certificateholder who are parties to a preneed contract executed prior to July 2, 1988, may enter into an amended preneed contract which is made subject to this section.

(11)  The board may adopt forms and rules necessary to implement this section, including, but not limited to, rules which ensure that the surety bond and line of credit provide liability coverage for preneed merchandise and services.

History.--ss. 8, 10, ch. 88-227; s. 1, ch. 89-8; s. 34, ch. 91-220; ss. 77, 122, ch. 93-399.

Note.--Former s. 497.0484.

497.427  Existing merchandise trust funds; proof of compliance with law.--The certificateholder shall present to the board prior to the implementation of the alternatives provided in s. 497.425 documentation which demonstrates that the existing merchandise trust fund complies with the law and that the elected alternative plan conforms to the requirements of this chapter.

History.--ss. 9, 10, ch. 88-227; s. 1, ch. 89-8; ss. 78, 122, ch. 93-399.

Note.--Former s. 497.049.

497.429  Alternative preneed contracts.--

(1)  Nothing in this chapter shall prevent the purchaser and the certificateholder from executing a preneed contract upon the terms stated in this section. Such contracts shall be subject to all provisions of this chapter except:

(a)  Section 497.409(2).

(b)  Section 497.415.

(c)  Section 497.417(1), (3), and (5).

(d)  Section 497.419(1), (2), and (5).

(e)  Section 497.421.

(f)  Section 497.423.

(g)  Section 497.425.

(2)  The contract must require that a trust be established by the certificateholder on behalf of, and for the use, benefit, and protection of, the purchaser and that the trustee must be a national or state bank or savings and loan association having trust powers or a trust company with the same powers of investment as provided elsewhere in this chapter.

(3)  The contract must require that the purchaser make all payments required by the contract directly to the trustee or its qualified servicing agent and that the funds shall be deposited in this state, subject to the terms of a trust instrument approved by the board. A copy of the trust instrument shall be made available to the purchaser, at any reasonable time, upon request.

(4)  The contract or trust instrument shall expressly state that the certificateholder does not have any dominion or control over the trust or its assets, except to the extent that subsection (6) applies, until such time as the preneed contract is entirely completed or performed.

(5)  The trust instrument shall prohibit the trustee from distributing any appreciation on the trust to any person and shall require that the trustee accumulate the entire net income of the trust, or its pro rata share thereof. The accumulated net income shall be distributed to the certificateholder upon cancellation or performance of the contract.

(6)  The contract and trust instrument may provide that the certificateholder may receive a current distribution of not more than 10 percent of all funds paid or collected by the trustee and may further provide for liquidated damages during the first 3 years after the execution of the contract of not more than 10 percent of all the funds paid on the preneed contract, except that no liquidated damages shall apply for cancellation within 30 days of the date of execution of the contract.

(7)  Disbursement of funds discharging any preneed contract shall be made by the trustee to the person issuing or writing such contract upon receipt of a certified copy of the death certificate of the contract beneficiary and evidence satisfactory to the trustee that the preneed contract has been fully performed. In the event of any contract default by the contract purchaser, or in the event that the funeral merchandise or service contracted for is not provided or is not desired by the purchaser or the heirs or personal representative of the contract beneficiary, the trustee shall return, within 30 days after its receipt of a written request therefor, funds paid on the contract to the contract purchaser or to her or his assigns, heirs, or personal representative, subject to the lawful liquidation damage provision in the contract.

(8)  The contract shall provide, in conspicuous type, that the purchaser may receive a federal income tax informational statement, pursuant to the grantor trust rules of ss. 671 et seq. of the Internal Revenue Code of 1986, as amended, from the trustee reflecting all of the income earned by the trust; and, accordingly, the purchaser should seek the advice of an independent tax professional for the tax impact upon the purchaser as a result of executing the preneed contract.

(9)  The contract may provide that the certificateholder may cancel the contract, but only in the event that the purchaser is more than 90 days in default of the terms of the contract; and, unless subject to the provisions of s. 497.419(6), must provide that the purchaser, or her or his representative, has the right, at any time prior to the performance of the contract, to cancel the preneed contract and revest title to all the funds paid on the preneed contract, except for applicable liquidated damages, and the certificateholder's rights in the net income of the trust.

(10)  The contract or trust agreement may require the trustee to invest in solely tax-free investments.

(11)  In the event the parties execute a contract pursuant to this section, the purchaser shall be deemed, and treated for all purposes, as the settlor of the trust established thereunder.

History.--ss. 13, 17, ch. 88-139; ss. 102, 122, ch. 93-399; s. 25, ch. 96-400; s. 1151, ch. 97-103; s. 9, ch. 98-268.

Note.--Former s. 639.149.

497.431  Examinations and investigations.--The department shall, as often as it may deem necessary but at least once every 3 years, examine the business of any person writing preneed contracts and any guaranteeing organization existing under this chapter to the extent applicable. The examination shall be made by designated representatives or examiners of the department. The written report of each such examination, when completed, shall be filed in the office of the board and, when so filed, shall constitute a public record. Any such person or organization being examined shall produce, upon request, all records of the company or organization. The designated representative of the board may at any time examine the records and affairs of any such person or organization, whether in connection with a formal examination or not. The board may waive the examination requirements of this section if the certificateholder or guaranteeing organization submits audited financial statements. The person or organization examined shall pay the travel expense and per diem subsistence allowance provided for state employees under s. 112.061 for out-of-state travel incurred by department representatives or examiners in connection with an examination. The department shall be entitled to recover the reasonable and justifiable costs of investigation if the investigation results in judicial or administrative disciplinary action.

History.--s. 10, ch. 28211, 1953; s. 12, ch. 65-393; ss. 13, 35, ch. 69-106; s. 8, ch. 77-438; s. 3, ch. 78-276; s. 1, ch. 80-135; s. 2, ch. 81-318; ss. 9, 31, 32, ch. 83-316; s. 14, ch. 88-139; ss. 103, 122, ch. 93-399; s. 26, ch. 96-400; s. 11, ch. 2000-195.

Note.--Former s. 639.15.

497.435  Administrative fine in lieu of revocation or suspension of certificate of authority.--

(1)  If the board finds that one or more grounds exist for the discretionary suspension or revocation of a certificate of authority issued under this chapter, it may, in lieu of such suspension or revocation, impose a fine upon the certificateholder in an amount not to exceed $1,000 for each nonwillful violation and in an amount not to exceed $10,000 for each willful violation.

(2)  The board may grant not more than 30 days from the date of the order for the payment of any fine.

(3)  The fine shall be deposited into the department's Regulatory Trust Fund.

History.--ss. 13, 32, ch. 83-316; ss. 105, 122, ch. 93-399; s. 28, ch. 99-155; s. 12, ch. 2000-195.

Note.--Former s. 639.162.

497.436  Inactive and revoked certificateholders.--

(1)  A certificateholder shall be considered inactive upon the acceptance of the surrender of its license by the board or upon the nonreceipt by the board of the certificate of authority renewal application and fees required by s. 497.213(2).

(2)  A certificateholder shall cease all preneed sales to the public upon becoming inactive. The certificateholder shall collect and deposit into trust all of the funds paid toward preneed contracts sold prior to becoming inactive.

(3)  Any certificateholder desiring to surrender its license to the board shall first:

(a)  File notice with the board.

(b)  Submit copies of its existing trust agreements.

(c)  Submit a sample copy of each type of preneed contract sold.

(d)  Resolve to the board's satisfaction all findings and violations resulting from the last examination conducted.

(e)  Pay all outstanding fines and invoices due the board.

(f)  Submit its current certificate of authority.

(4)  Upon receipt of the notice, the board shall review the certificateholder's:

(a)  Trust funds.

(b)  Trust agreements.

(c)  Evidence of all outstanding preneed contracts.

(5)  After a review to the board's satisfaction, the board shall terminate the certificate of authority by an order which shall set forth the conditions of termination established by the board to ensure that the preneed funds will be available for their intended purpose.

(6)  The trust fund of the certificateholder shall be held intact and in trust after the certificateholder has become inactive, and the funds in that trust shall be disbursed in accordance with the requirements of the written contracts until the funds have been exhausted.

(7)  The board shall continue to have jurisdiction over the inactive certificateholder as if the certificate were active and to require such reports and inspect such records as the board deems appropriate so long as there are funds in trust or preneed contracts that are not fulfilled.

(8)  In addition to any other terms of revocation or suspension ordered pursuant to s. 497.233, the provisions of this section shall also apply, unless the provisions of the suspension or revocation order specifically provide otherwise.

History.--s. 27, ch. 96-400.

497.437  Dissolution or liquidation.--Any dissolution or liquidation of a certificateholder shall be under the supervision of the board, which shall have all powers with respect thereto granted to it under the laws of the state with respect to the dissolution and liquidation of companies pursuant to chapter 631, as applicable.

History.--ss. 12, 32, ch. 83-316; s. 16, ch. 88-139; ss. 106, 122, ch. 93-399.

Note.--Former s. 639.165.

497.439  Preneed sales agents.--

(1)  All individuals who offer preneed contracts to the public, or who execute preneed contracts on behalf of a certificateholder, including all individuals who offer, sell, or sign contracts for the preneed sale of burial rights, shall be registered with the board as preneed sales agents, pursuant to this section, unless such individuals are licensed as funeral directors pursuant to this chapter.

(2)  All preneed sales agents and funeral directors acting as preneed sales agents must be affiliated with the certificateholder that they are representing.

(3)  A certificateholder shall be responsible for the activities of all preneed sales agents and all funeral directors acting as preneed sales agents, who are affiliated with the certificateholder and who perform any type of preneed-related activity on behalf of the certificateholder. In addition to the preneed sales agents and funeral directors acting as preneed sales agents, each certificateholder shall also be subject to discipline if its preneed sales agents or funeral directors acting as preneed sales agents violate any provision of this chapter.

(4)  A preneed sales agent and a funeral director acting as a preneed sales agent shall be authorized to sell, offer, and execute preneed contracts on behalf of all entities owned or operated by its sponsoring certificateholder.

(5)  An individual may begin functioning as a preneed sales agent as soon as a completed application for registration, as set forth in subsection (7), is sent to the department.

(6)  The qualifications for a preneed sales agent are as follows:

(a)  The applicant must be at least 18 years of age.

(b)  The applicant must be in good standing with the board.

(c)  The applicant must not have any felony or misdemeanor convictions that relate to any activity regulated by this chapter.

(7)  An application for registration as a preneed sales agent shall be submitted to the department with an application fee of $100 by the certificateholder in a form that has been prescribed by department rule and approved by the board. Such application shall contain, at a minimum, the following:

(a)  The name, address, social security number, and date of birth of the applicant and such other information as the board may reasonably require of the applicant.

(b)  The name, address, and license number of the sponsoring certificateholder.

(c)  A representation, signed by the applicant, that the applicant meets the requirements set forth in subsection (6).

(d)  A representation, signed by the certificateholder, that the applicant is authorized to offer, sell, and sign preneed contracts on behalf of the certificateholder, and that the certificateholder has trained the applicant in the provisions of this chapter relating to preneed sales as determined by the board, the provisions of the certificateholder's preneed contract, and the nature of the merchandise, services, or burial rights sold by the certificateholder.

(e)  A statement indicating whether the applicant has any type of working relationship with any other certificateholder or insurance company.

(8)  An individual may be registered as a preneed sales agent on behalf of more than one certificateholder, provided that the individual has received the written consent of all such certificateholders.

(9)  A certificateholder who has registered a preneed sales agent shall notify the department within 30 days after such individual's status as a preneed sales agent has been terminated.

(10)  Upon receipt of an application that complies with all of the requirements of subsection (7), the department shall register the applicant. The department shall by rule provide for biennial renewal of registration and a renewal fee of $150.

History.--s. 107, ch. 93-399; s. 13, ch. 2000-195.

497.441  Acceptability of funeral and burial merchandise.--Each person who engages in preneed sales of funeral or burial merchandise shall determine, and notify the purchaser in writing prior to the completion of the contract, that the merchandise being considered for purchase will be accepted in the cemetery of the purchaser's choice. The failure to comply with this chapter shall nullify the agreement, and all moneys paid in shall be returned, notwithstanding the existence of any liquidated damages provision pursuant to s. 497.419(2).

History.--s. 13, ch. 77-438; s. 2, ch. 81-318; ss. 21, 31, 32, ch. 83-316; ss. 108, 122, ch. 93-399.

Note.--Former s. 639.21.

497.443  Unfair methods of competition and unfair or deceptive acts or practices prohibited.--No person shall engage in this state in any trade practice which is defined in this chapter as, or determined pursuant to s. 497.445 to be, an unfair method of competition or an unfair or deceptive act or practice.

History.--ss. 22, 32, ch. 83-316; ss. 109, 122, ch. 93-399.

Note.--Former s. 639.22.

497.445  Unfair methods of competition and unfair or deceptive acts or practices defined.--Unfair methods of competition and unfair or deceptive acts or practices are defined as the following:

(1)  MISREPRESENTATION AND FALSE ADVERTISING OF PRENEED CONTRACT.--Knowingly making, issuing, or circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which:

(a)  Misrepresents the benefits, advantages, conditions, or terms of any preneed contract.

(b)  Is misleading, or is a misrepresentation as to the financial condition of any person.

(c)  Uses any name or title of any preneed contract misrepresenting the true nature thereof.

(d)  Is a misrepresentation for the purpose of inducing, or tending to induce, the lapse, forfeiture, exchange, conversion, or surrender of any preneed contract.

(2)  FALSE INFORMATION AND ADVERTISING GENERALLY.--Knowingly making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public:

(a)  In a newspaper, magazine, or other publication;

(b)  In the form of a notice, circular, pamphlet, letter, or poster;

(c)  Over any radio or television station; or

(d)  In any other way;

an advertisement, announcement, or statement containing any assertion, representation, or statement which is untrue, deceptive, or misleading with respect to any preneed contract.

(3)  DEFAMATION.--Knowingly making, publishing, disseminating, or circulating, directly or indirectly, or aiding, abetting, or encouraging the making, publishing, disseminating, or circulating of, any oral or written statement, or any pamphlet, circular, article, or literature, which is false or maliciously critical of, or derogatory to, any person and which is calculated to injure such person.

(4)  FALSE STATEMENTS AND ENTRIES.--Knowingly:

(a)  Filing any false statement with any supervisory or other public official;

(b)  Making, publishing, disseminating, or circulating any false statement;

(c)  Delivering any false statement to any person;

(d)  Placing any false statement before the public;

(e)  Causing, directly or indirectly, any false statement to be made, published, disseminated, circulated, delivered to any person, or placed before the public; or

(f)  Making any false entry of a material fact in any book, report, or statement of any person.

(5)  UNFAIR CLAIM SETTLEMENT PRACTICES.--

(a)  Attempting to settle a claim on the basis of a material document which was altered without notice to, or without the knowledge or consent of, the contract purchaser or his or her representative or legal guardian.

(b)  Making a material misrepresentation to a contract purchaser or his or her representative or legal guardian for the purpose and with the intent of effecting settlement of a claim or loss under a prepaid contract on less favorable terms than those provided in, and contemplated by, the prepaid contract; or

(c)  Committing or performing with such frequency as to indicate a general business practice any of the following acts:

1.  Failing to adopt and implement standards for the proper investigation of claims;

2.  Misrepresenting pertinent facts or prepaid contract provisions relating to issues on coverage of funeral merchandise or services or burial merchandise or services;

3.  Failing to acknowledge and act promptly upon communications with respect to claims;

4.  Denying claims without conducting reasonable investigations based upon available information;

5.  Failing to affirm or deny coverage of a claim upon written request of a contract purchaser or his or her representative or legal guardian within a reasonable time; or

6.  Failing to provide promptly a reasonable explanation to a contract purchaser or his or her representative or legal guardian of the basis, in the prepaid contract in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.

(6)  FAILURE TO MAINTAIN PROCEDURES FOR HANDLING COMPLAINTS.--Failing to maintain a complete record of every complaint received since the date of the last examination. For purposes of this subsection, the term "complaint" means any written communication primarily expressing a grievance.

(7)  DISCRIMINATORY REFUSAL TO ISSUE A CONTRACT.--Refusing to issue a contract solely because of an individual's race, color, creed, marital status, sex, or national origin.

History.--ss. 23, 32, ch. 83-316; ss. 110, 122, ch. 93-399; s. 568, ch. 97-103.

Note.--Former s. 639.23.

497.447  Prohibited practices; hearings, witnesses, appearances, production of books, and service of process.--

(1)  Whenever the board has reason to believe that any person has engaged, or is engaging, in this state in any unfair method of competition or any unfair or deceptive act or practice as defined in s. 497.445, or is engaging in the sale of preneed contracts without being properly licensed as required by this chapter, and that a proceeding by the board in respect thereto would be in the interest of the public, the board shall conduct or cause to have conducted a hearing in accordance with chapter 120.

(2)  The board, a duly empowered hearing officer, or an administrative law judge shall, during the conduct of such hearing, have those powers enumerated in s. 120.569; however, the penalties for failure to comply with a subpoena or with an order directing discovery shall be limited to a fine not to exceed $1,000 per violation.

(3)  A statement of charges, notice, or order or other process under this chapter may be served by anyone duly authorized by the department, either in the manner provided by law for service of process in civil actions or by certifying and mailing a copy thereof to the person affected by such statement, notice, or order or other process at her or his or its residence or principal office or place of business. The verified return by the person so serving such statement, notice, or order or other process, setting forth the manner of the service, shall be proof of the service; and the return postcard receipt for such statement, notice, or order or other process, certified and mailed as provided in this subsection, shall be proof of service of the statement, notice, or order or other process.

History.--ss. 25, 32, ch. 83-316; s. 27, ch. 85-62; ss. 111, 122, ch. 93-399; s. 238, ch. 96-410; s. 1152, ch. 97-103.

Note.--Former s. 639.25.

497.515  Additional prohibited acts.--In addition to the acts set forth elsewhere in this chapter, the following acts are prohibited:

(1)  Requiring lot owners or current customers to make unnecessary visits to the cemetery company office for the purpose of solicitation.

(2)  Soliciting that overreaches and takes advantage of a customer's ignorance or emotional vulnerability.

(3)  Failing to disclose all fees and costs the customer may incur to use the burial rights or merchandise purchased.

(4)  Failing to provide a detailed description on the written contract of all burial merchandise purchased.

(5)  Failing to honor cancellations and issue refunds as provided by s. 497.419.

(6)  Misrepresenting any burial merchandise or service when offered for sale to the public.

(7)  Failing to obtain written authorization from the family or next of kin of the deceased prior to disinterment, disentombment, or disinurnment.

History.--s. 81, ch. 93-399.

497.517  Attorney's fees.--

(1)  In any civil litigation resulting from a transaction involving a violation of this chapter, the court may award to the prevailing party, after judgment in the trial court and exhaustion of any appeal, reasonable attorney's fees and costs from the nonprevailing party in an amount to be determined by the trial court.

(2)  Any award of attorney's fees or costs shall become a part of the judgment and shall be subject to execution as the law allows.

(3)  Subsections (1) and (2) shall not apply to any action initiated by the department.

History.--s. 4, ch. 78-407; ss. 28, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 82, 122, ch. 93-399.

Note.--Former s. 559.505; s. 497.057.

497.519  Penalties.--Any officer or director, or person occupying similar status or performing similar functions, of a certificateholder which fails to make required deposits to any trust fund required by this chapter; any director, officer, agent, or employee of a certificateholder who makes any unlawful withdrawal of funds from any such account or who knowingly discloses to the department or an employee thereof any false report made pursuant to this chapter; or any person who willfully violates any of the provisions of this chapter commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 12, ch. 65-288; s. 556, ch. 71-136; s. 8, ch. 72-78; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 13, ch. 78-407; ss. 29, 39, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 79, 122, ch. 93-399.

Note.--Former s. 559.51; s. 497.054.

497.525  Disposition of fees and penalties.--All fees and penalties collected pursuant to this chapter shall be deposited in the Regulatory Trust Fund of the department.

History.--ss. 25, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 89, 122, ch. 93-399.

Note.--Former s. 559.491; s. 497.019.

497.527  Civil remedies.--The Attorney General or any person may bring a civil action against a person or company violating the provisions of this chapter in the appropriate court of the county in which the alleged violator resides or has his or her or its principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages caused by such violation. The court may, as provided by common law, award punitive damages and may provide such equitable relief as it deems proper or necessary, including enjoining the defendant from further violations of this chapter.

History.--ss. 30, 40, ch. 80-238; ss. 2, 3, ch. 81-318; s. 1, ch. 89-8; ss. 80, 122, ch. 93-399; s. 569, ch. 97-103; s. 10, ch. 98-268.

Note.--Former s. 559.501; s. 497.056.

497.529  Civil liability.--The provisions of this chapter are cumulative to rights under the general civil and common law, and no action of the department may abrogate such rights to damages or other relief in any court.

History.--ss. 30, 32, ch. 83-316; ss. 112, 122, ch. 93-399.

Note.--Former s. 639.30.

497.531  Unauthorized arrangements.--

(1)  Any arrangement to provide merchandise or services as defined in this chapter, by which payment for such merchandise or services is to be paid for through a financial arrangement, other than as authorized pursuant to this chapter, in which the provider of the merchandise or services is a beneficiary, party, agent, or owner is in violation of this chapter.

(2)  Any person who provides merchandise or services and who knowingly becomes a beneficiary, agent, party, or coowner as described in subsection (1) is in violation of this chapter.

History.--s. 2, ch. 94-216.