Senate Bill 1572

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1998                                  SB 1572

    By Senator Harris





    24-1046A-98                                        See HB 3763

  1                      A bill to be entitled

  2         An act relating to funeral and cemetery

  3         services; providing a short title; amending s.

  4         497.005, F.S.; defining "care and maintenance";

  5         creating s. 497.0255, F.S.; providing a duty of

  6         care and maintenance of licensed cemeteries in

  7         this state; providing rulemaking authority to

  8         the Board of Funeral and Cemetery Services for

  9         such purpose; amending s. 497.229, F.S.;

10         providing circumstances under which a cemetery

11         or component thereof may be deemed a public

12         nuisance and providing for abatement thereof;

13         amending s. 497.253, F.S.; providing additional

14         requirements with respect to the conveyance of

15         cemetery property to noncemetery uses,

16         including certain notice; creating s. 497.255,

17         F.S.; providing standards for construction and

18         significant alteration or renovation of

19         mausoleums and columbaria; providing rulemaking

20         authority with respect to such standards to the

21         board, in conjunction with the Board of

22         Building Codes and Standards, and providing for

23         incorporation of a portion thereof in the State

24         Minimum Building Codes; requiring all newly

25         constructed and significantly altered or

26         renovated mausoleums and columbaria to conform

27         to such standards and applicable building

28         codes; amending s. 497.257, F.S.; including

29         columbaria in provisions relating to

30         preconstruction requirements applicable to

31         mausoleums and belowground crypts; amending s.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         497.527, F.S.; authorizing the Attorney General

  2         to bring a civil action for violation of

  3         chapter 497, relating to regulation of funeral

  4         and cemetery services, in the appropriate

  5         court; increasing the minimum liability for

  6         actual damages, except for violations

  7         designated as minor by rule of the board;

  8         amending s. 872.02, F.S., relating to

  9         prohibitions against injuring or removing tombs

10         or monuments or disturbing the contents of

11         graves or tombs; increasing penalties;

12         specifying that the term "tomb" includes any

13         mausoleum, columbarium, and belowground crypt;

14         amending s. 245.07, F.S.; revising provisions

15         relating to retention and disposition of bodies

16         received by an anatomical board; creating the

17         Task Force on Abandoned and Neglected

18         Cemeteries within the Department of Banking and

19         Finance; providing for appointment of members

20         and election of officers; authorizing

21         reimbursement for per diem and travel;

22         requiring the department to provide

23         administrative and staff support; providing

24         duties; requiring preliminary and final

25         reports; providing for termination of the task

26         force; providing an appropriation; providing

27         effective dates.

28

29         WHEREAS, Florida is the retirement state of choice for

30  most Americans, attracting hundreds of thousands of new

31

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  citizens who move to this state to live their remaining years

  2  enjoying its famous climate and cultural amenities, and

  3         WHEREAS, the number of Florida citizens over the age of

  4  65 has dramatically increased and will continue to increase at

  5  a rate faster than the growth in the state's population as a

  6  whole, and

  7         WHEREAS, the number of Florida citizens over the age of

  8  85 has dramatically increased and will continue to increase

  9  more than twice as fast as those over the age of 65, and

10         WHEREAS, in 1995 Florida had the second highest median

11  age in the nation, and

12         WHEREAS, Florida has the third highest unadjusted death

13  rate in the United States, and

14         WHEREAS, 154,734 persons died in Florida in 1996, and

15         WHEREAS, the number of burials in Florida cemeteries

16  will continue to increase in the future, and

17         WHEREAS, gross sales reported by Florida cemetery

18  licensees increased from $175,393,887 in 1996 to $194,427,476

19  in 1997, and

20         WHEREAS, Florida cemetery licensees paid less than

21  one-quarter of one percent of gross sales for their licenses

22  in 1996, and

23         WHEREAS, cemeteries are a critical part of Florida's

24  historical and cultural resources, and

25         WHEREAS, the legislative purposes for regulation of the

26  cemetery industry set forth in s. 497.002(1), Florida

27  Statutes, encompass both the prevention of economic harm to

28  consumers and the prevention of significant emotional stress

29  resulting from the failure to properly maintain cemetery

30  grounds, yet the majority of the present statutory and

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  regulatory provisions relate to economic problems but not to

  2  care and maintenance, and

  3         WHEREAS, the families and loved ones of the deceased

  4  who are interred in Florida deserve well-maintained cemetery

  5  facilities which provide the highest dignity and respect

  6  accorded to the deceased's final resting place that is

  7  compatible with reasonable and practical economic constraints,

  8  and

  9         WHEREAS, inadequate care and maintenance of a cemetery

10  where a loved one is interred causes added stress and

11  emotional trauma to the deceased's family and friends, and

12         WHEREAS, a person who makes burial arrangements with a

13  Florida cemetery or preneed provider will receive assurances

14  concerning the care, dignity, and maintenance of the

15  deceased's final resting place, and

16         WHEREAS, a person who makes such arrangements may not

17  have family members in Florida to ensure that the proper care

18  and maintenance of the deceased's final resting place are

19  being performed, and

20         WHEREAS, the state may be the only entity available to

21  enforce minimum standards of care and maintenance to protect

22  the dignity of the deceased and the memories of the family and

23  loved ones, and

24         WHEREAS, Florida has fewer written standards regulating

25  the physical operations of cemeteries than other states,

26  leading to some serious inconsistencies in the quality of

27  cemetery facilities and their care and maintenance in Florida,

28  and

29         WHEREAS, approximately 2,000 cemeteries in Florida have

30  no entity responsible for their care and maintenance and have

31  become abandoned, overgrown, dilapidated, and otherwise

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  neglected, creating eyesores and decreasing neighboring

  2  property values, and

  3         WHEREAS, neglected cemeteries become breeding grounds

  4  for mosquitoes, rats, and other vermin, raising serious public

  5  health concerns, and

  6         WHEREAS, vandalism and other crimes associated with

  7  neglected cemeteries are increasing, making the neighborhoods

  8  in which they are located less safe for families, and

  9         WHEREAS, inadequately maintained graves, crypts, and

10  mausoleums at abandoned cemeteries can be broken open as a

11  result of vandalism or storm damage, exposing human remains,

12  and

13         WHEREAS, citizen complaints often cause local

14  governments to take over or perform care and maintenance at

15  abandoned and neglected cemeteries, leading to a strain on

16  local government financial resources, and

17         WHEREAS, it is an affront to the dignity of our

18  departed and a source of pain to their families when grave

19  spaces are overgrown with weeds and tombstones are broken and

20  scattered due to neglect, and

21         WHEREAS, cemeteries that have been abandoned and

22  neglected for long periods can become obliterated, leading to

23  a loss of important historical, genealogical, and

24  archaeological information, and

25         WHEREAS, Florida's communities should be encouraged to

26  assist in the preservation and protection which is due the

27  final resting places of the deceased, and

28         WHEREAS, the cemeteries where our deceased loved ones

29  are interred deserve at least as much protection from

30  vandalism and other crime as construction sites and orange

31  groves enjoy under current law, and

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         WHEREAS, the Legislature finds that it is necessary to

  2  improve the regulation of the physical facilities and

  3  operations of Florida cemeteries in order to honor the

  4  memories of deceased citizens, protect the families and

  5  friends of the deceased from significant emotional stress,

  6  safeguard the integrity of Florida cemeteries, protect the

  7  interests of consumers, preserve our historical heritage,

  8  protect the public health and welfare, and reduce the

  9  financial burden on local governments, NOW, THEREFORE,

10

11  Be It Enacted by the Legislature of the State of Florida:

12

13         Section 1.  This act may be cited as the "Cemetery

14  Preservation and Consumer Protection Act."

15         Section 2.  Section 497.005, Florida Statutes, is

16  amended to read:

17         497.005  Definitions.--As used in this chapter:

18         (1)(17)  "At-need solicitation" means any uninvited

19  contact by a licensee or her or his agent for the purpose of

20  the sale of burial services or merchandise to the family or

21  next of kin of a person after her or his death has occurred.

22         (2)(9)  "Bank of belowground crypts" means any

23  construction unit of belowground crypts which is acceptable to

24  the department and which a cemetery uses to initiate its

25  belowground crypt program or to add to existing belowground

26  crypt structures.

27         (3)(8)  "Belowground crypts" consist of interment space

28  in preplaced chambers, either side by side or multiple depth,

29  covered by earth and sod and known also as "lawn crypts,"

30  "westminsters," or "turf-top crypts."

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (4)(30)  "Board" means the Board of Funeral and

  2  Cemetery Services.

  3         (5)(12)  "Burial merchandise," "funeral merchandise,"

  4  or "merchandise" means any personal property offered or sold

  5  by any person for use in connection with the final

  6  disposition, memorialization, interment, entombment, or

  7  inurnment of human remains.

  8         (6)(11)  "Burial right" means the right to use a grave

  9  space, mausoleum, or columbarium for the interment,

10  entombment, or inurnment of human remains.

11         (7)(13)  "Burial service," "funeral service," or

12  "service" means any service offered or provided by any person

13  in connection with the final disposition, memorialization,

14  interment, entombment, or inurnment of human remains.

15         (8)  "Care and maintenance" means the perpetual process

16  of keeping a cemetery and its lots, graves, grounds,

17  landscaping, roads, paths, parking lots, fences, mausoleums,

18  columbaria, vaults, crypts, utilities, and other improvements,

19  structures, and embellishments in a well-cared-for and

20  dignified condition, so that the cemetery does not become a

21  nuisance or place of reproach and desolation in the community.

22  As specified in the rules of the board, "care and maintenance"

23  may include, but is not limited to, any or all of the

24  following activities:  mowing the grass at reasonable

25  intervals; raking and cleaning the grave spaces and adjacent

26  areas; pruning of shrubs and trees; suppression of weeds and

27  exotic flora; and maintenance, upkeep, and repair of drains,

28  water lines, roads, buildings, and other improvements. "Care

29  and maintenance" may include, but is not limited to,

30  reasonable overhead expenses necessary for such purposes,

31  including maintenance of machinery, tools, and equipment used

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  for such purposes. "Care and maintenance" may also include

  2  repair or restoration of improvements necessary or desirable

  3  as a result of wear, deterioration, accident, damage, or

  4  destruction. "Care and maintenance" does not include expenses

  5  for the construction and development of new grave spaces or

  6  interment structures to be sold to the public.

  7         (9)(14)  "Casket" means a rigid container which is

  8  designed for the encasement of human remains and which is

  9  usually constructed of wood or metal, ornamented, and lined

10  with fabric.

11         (10)(2)  "Cemetery" means a place dedicated to and used

12  or intended to be used for the permanent interment of human

13  remains.  A cemetery may contain land or earth interment;

14  mausoleum, vault, or crypt interment; a columbarium or other

15  structure or place used or intended to be used for the

16  interment of cremated human remains; or any combination of one

17  or more of such structures or places.

18         (11)(5)  "Cemetery company" means any legal entity that

19  owns or controls cemetery lands or property.

20         (12)(31)  "Certificateholder" or "licensee" means the

21  person or entity that is authorized under this chapter to sell

22  preneed funeral or burial services, preneed funeral or burial

23  merchandise, or burial rights. Each term shall include the

24  other, as applicable, as the context requires. For the

25  purposes of chapter 120, all certificateholders, licensees,

26  and registrants shall be considered licensees.

27         (13)(4)  "Columbarium" means a structure or building

28  which is substantially exposed above the ground and which is

29  intended to be used for the inurnment of cremated human

30  remains.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (14)(32)  "Common business enterprise" means a group of

  2  two or more business entities that share common ownership in

  3  excess of 50 percent.

  4         (15)(28)  "Community" means the area within a 15-mile

  5  radius surrounding the location or proposed location of a

  6  cemetery.

  7         (16)(25)  "Cremation" includes any mechanical or

  8  thermal process whereby a dead human body is reduced to ashes.

  9  Cremation also includes any other mechanical or thermal

10  process whereby human remains are pulverized, burned,

11  recremated, or otherwise further reduced in size or quantity.

12         (17)(7)  "Department" means the Department of Banking

13  and Finance.

14         (18)(19)  "Direct disposer" means any person who is

15  registered in this state to practice direct disposition

16  pursuant to the provisions of chapter 470.

17         (19)(20)  "Final disposition" means the final disposal

18  of a dead human body whether by interment, entombment, burial

19  at sea, cremation, or any other means and includes, but is not

20  limited to, any other disposition of remains for which a

21  segregated charge is imposed.

22         (20)(21)  "Funeral director" means any person licensed

23  in this state to practice funeral directing pursuant to the

24  provisions of chapter 470.

25         (21)(6)  "Grave space" means a space of ground in a

26  cemetery intended to be used for the interment in the ground

27  of human remains.

28         (22)(1)  "Human remains" means the bodies of deceased

29  persons and includes bodies in any stage of decomposition and

30  cremated remains.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (23)(3)  "Mausoleum" means a structure or building

  2  which is substantially exposed above the ground and which is

  3  intended to be used for the entombment of human remains.

  4         (24)(10)  "Mausoleum section" means any construction

  5  unit of a mausoleum which is acceptable to the department and

  6  which a cemetery uses to initiate its mausoleum program or to

  7  add to its existing mausoleum structures.

  8         (25)(18)  "Monument" means any product used for

  9  identifying a grave site and cemetery memorials of all types,

10  including monuments, markers, and vases.

11         (26)(27)  "Monument establishment" means a facility

12  that operates independently of a cemetery or funeral

13  establishment and that offers to sell monuments or monument

14  services to the public for placement in a cemetery.

15         (27)(24)  "Net assets" means the amount by which the

16  total assets of a certificateholder, excluding goodwill,

17  franchises, customer lists, patents, trademarks, and

18  receivables from or advances to officers, directors,

19  employees, salespersons, and affiliated companies, exceed

20  total liabilities of the certificateholder.  For purposes of

21  this definition, the term "total liabilities" does not include

22  the capital stock, paid-in capital, or retained earnings of

23  the certificateholder.

24         (28)(29)  "Net worth" means total assets minus total

25  liabilities pursuant to generally accepted accounting

26  principles.

27         (29)(16)  "Outer burial container" means an enclosure

28  into which a casket is placed and includes, but is not limited

29  to, vaults made of concrete, steel, fiberglass, or copper;

30  sectional concrete enclosures; crypts; and wooden enclosures.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (30)(22)  "Preneed contract" means any arrangement or

  2  method, of which the provider of funeral merchandise or

  3  services has actual knowledge, whereby the funeral

  4  establishment, direct disposer, or certificateholder agrees to

  5  furnish funeral merchandise or service in the future.

  6         (31)(26)  "Servicing agent" means any person acting as

  7  an independent contractor whose fiduciary responsibility is to

  8  assist both the trustee and certificateholder hereunder in

  9  administrating their responsibilities pursuant to this

10  chapter.

11         (32)(15)  "Solicitation" means any communication which

12  directly or implicitly requests an immediate oral response

13  from the recipient.

14         (33)(23)  "Statutory accounting" means generally

15  accepted accounting principles, except as modified by this

16  chapter.

17         Section 3.  Section 497.0255, Florida Statutes, is

18  created to read:

19         497.0255  Duty of care and maintenance of licensed

20  cemetery.--Every cemetery company or other entity responsible

21  for the care and maintenance of a licensed cemetery in this

22  state shall ensure that the grounds, structures, and other

23  improvements of the cemetery are well cared for and maintained

24  in a proper and dignified condition. The board shall adopt, by

25  no later than July 1, 1999, such rules as are necessary to

26  implement and enforce this section.

27         Section 4.  Section 497.229, Florida Statutes, is

28  amended to read:

29         497.229  Courts; powers; abatement of nuisances.--

30         (1)  In addition to all other means provided by law for

31  the enforcement of a temporary restraining order or an

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  injunction, the circuit court may impound the property of a

  2  cemetery company, including books, papers, documents, and

  3  records pertaining thereto, and may appoint a receiver or

  4  administrator to prevent further violation of this chapter.

  5         (2)  A court-appointed receiver or administrator may

  6  take any action to implement the provisions of the court

  7  order, to ensure the performance of the order, and to remedy

  8  any breach thereof.

  9         (3)  Any cemetery or component thereof which is

10  constructed, physically operated, or maintained in violation

11  of or contrary to the provisions of this chapter, or in

12  violation of the rules of the board, shall be deemed a public

13  nuisance, and such violation may be abated as provided in s.

14  60.05.

15         Section 5.  Section 497.253, Florida Statutes, is

16  amended to read:

17         497.253  Minimum acreage; sale or disposition of

18  cemetery lands.--

19         (1)  Each licensee shall set aside a minimum of 15

20  contiguous acres of land for use by the licensee as a cemetery

21  and shall not sell, mortgage, lease, or encumber that property

22  without prior written approval of the department.

23         (2)  Any lands owned by a licensee and dedicated for

24  use by it as a cemetery, which are contiguous, adjoining, or

25  adjacent to the minimum of 15 contiguous acres described in

26  subsection (1), may be sold, conveyed, or disposed of by the

27  licensee, after obtaining written approval of the department

28  pursuant to subsection (3), for use by the new owner for other

29  purposes than as a cemetery. All of the human remains which

30  have been previously interred therein shall first have been

31  removed from the lands proposed to be sold, conveyed, or

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  disposed of; however, the provisions of ss. 497.515(7) and

  2  470.0295 must be complied with prior to any disinterment of

  3  human remains. Any and all titles, interests, or burial rights

  4  which may have been sold or contracted to be sold in lands

  5  which are the subject of the sale shall be conveyed to and

  6  revested in the licensee prior to consummation of any such

  7  sale, conveyance, or disposition.

  8         (3)(a)  If the property to be sold, conveyed, or

  9  disposed of under subsection (2) has been or is being used for

10  the permanent interment of human remains, the applicant for

11  approval of such sale, conveyance, or disposition shall cause

12  to be published, at least once a week for 4 consecutive weeks,

13  a notice meeting the standards of publication set forth in s.

14  125.66(4)(b)2. The notice shall describe the property in

15  question and the proposed noncemetery use and shall advise

16  substantially affected persons that they may file a written

17  request for a hearing pursuant to chapter 120, within 14 days

18  after the date of last publication of the notice, with the

19  department if they object to granting the applicant's request

20  to sell, convey, or dispose of the subject property for

21  noncemetery uses.

22         (b)  If the property in question has never been used

23  for the permanent interment of human remains, no notice or

24  hearing is required.

25         (c)  The department shall approve the application, in

26  writing, if it finds that it would not be contrary to the

27  public interest. In determining whether to approve the

28  application, the department shall consider any evidence

29  presented concerning the following:

30         1.  The historical significance of the subject

31  property, if any.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         2.  The archaeological significance of the subject

  2  property, if any.

  3         3.  The public purpose, if any, to be served by the

  4  proposed use of the subject property.

  5         4.  The impact of the proposed change in use of the

  6  subject property upon the inventory of remaining cemetery

  7  facilities in the community and upon the other factors

  8  enumerated in s. 497.201(3).

  9         5.  The impact of the proposed change in use of the

10  subject property upon the reasonable expectations of the

11  families of the deceased regarding whether the cemetery

12  property was to remain as a cemetery in perpetuity.

13         6.  Whether any living relatives of the deceased

14  actively oppose the relocation of their deceased's remains and

15  the conversion of the subject property to noncemetery uses.

16         7.  The elapsed time since the last interment in the

17  subject property.

18         8.  Any other factor enumerated in this chapter that

19  the department considers relevant to the public interest.

20         (d)  The department shall adopt such rules as are

21  necessary to carry out the provisions of this subsection.

22         (e)  Any deed, mortgage, or other conveyance by a

23  cemetery company or other owner pursuant to this subsection

24  must contain a disclosure in the following or substantially

25  similar form:

26

27  NOTICE:  The property described herein was formerly used and

28  dedicated as a cemetery. Conveyance of this property and its

29  use for noncemetery purposes was authorized by the Florida

30  Department of Banking and Finance by Order No. ...., dated

31  .....

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1

  2         (4)(3)  A licensee may convey and transfer to a

  3  municipality or county its real and personal property,

  4  together with moneys deposited in trust funds pursuant to this

  5  chapter, provided the municipality or county will accept

  6  responsibility for maintenance thereof and prior written

  7  approval of the department is obtained.

  8         (5)(4)  The provisions of subsections (1) and (2)

  9  relating to a requirement for minimum acreage shall not apply

10  to any cemetery company licensed by the department on or

11  before July 1, 1965, which owns a total of less than 15 acres

12  of land; however, no cemetery company shall dispose of any

13  land without the prior written consent of the department.

14         Section 6.  Section 497.255, Florida Statutes, is

15  created to read:

16         497.255  Standards for construction and significant

17  alteration or renovation of mausoleums and columbaria.--

18         (1)  All newly constructed and significantly altered or

19  renovated mausoleums and columbaria must, in addition to

20  complying with applicable building codes, conform to the

21  standards adopted under this section.

22         (2)  The board shall adopt, by no later than July 1,

23  1999, rules establishing minimum standards for all newly

24  constructed and significantly altered or renovated mausoleums

25  and columbaria; however, in the case of significant

26  alterations or renovations to existing structures, the rules

27  shall apply only, when physically feasible, to the newly

28  altered or renovated portion of such structures, except as

29  specified in subsection (4).  The board shall develop the

30  rules in cooperation with, and with technical assistance from,

31  the Board of Building Codes and Standards of the Department of

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  Community Affairs, to ensure that the rules are in the proper

  2  form and content to be included as part of the State Minimum

  3  Building Codes under part VII of chapter 553. If the Board of

  4  Building Codes and Standards advises that some of the

  5  standards proposed by the board are not appropriate for

  6  inclusion in such building codes, the board may choose to

  7  include those standards in a distinct chapter of its rules

  8  entitled "Non-Building-Code Standards for Mausoleums" or

  9  "Additional Standards for Mausoleums," or other terminology to

10  that effect. If the board elects to divide the standards into

11  two or more chapters, all such rules shall be binding on

12  licensees and others subject to the jurisdiction of the board,

13  but only the chapter containing provisions appropriate for

14  building codes shall be transmitted to the Board of Building

15  Codes and Standards pursuant to subsection (3). Such rules may

16  be in the form of standards for design and construction;

17  methods, materials, and specifications for construction; or

18  other mechanisms. Such rules shall encompass, at a minimum,

19  the following standards:

20         (a)  No structure may be built or significantly altered

21  for use for interment, entombment, or inurnment purposes

22  unless constructed of such material and workmanship as will

23  ensure its durability and permanence, as well as the safety,

24  convenience, comfort, and health of the community in which it

25  is located, as dictated and determined at the time by modern

26  mausoleum construction and engineering science.

27         (b)  Such structure must be so arranged that the

28  exterior of any vault, cell, niche, or crypt may be readily

29  examined at any time by any person authorized by law to do so.

30         (c)  Such structure must contain adequate provision for

31  drainage and ventilation.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (d)  Such structure must be of fire-resistant

  2  construction.

  3         (e)  Such structure must be resistant to hurricane and

  4  other storm damage to the highest degree provided under

  5  applicable building codes for buildings of that class.

  6         (f)  Suitable provisions must be made for securely and

  7  permanently sealing each crypt or cell with durable materials

  8  after the interment or entombment of human remains, so that no

  9  effluvia or odors may escape therefrom except as provided by

10  design and sanitary engineering standards. Panels for

11  permanent seals must be solid and constructed of materials of

12  sufficient weight, permanence, density, imperviousness, and

13  strength as to ensure their durability and continued

14  functioning. Permanent crypt or cell sealing panels must be

15  securely installed and set in with high quality

16  fire-resistant, resilient, and durable materials after the

17  interment or entombment of human remains. The outer or exposed

18  covering of each crypt or cell must be of a durable,

19  permanent, fire-resistant material; however, plastic,

20  fiberglass, and wood are not acceptable materials for such

21  outer or exposed coverings.

22         (g)  Interior and exterior fastenings for hangers,

23  clips, doors, and other objects must be of copper, copper-base

24  alloy, aluminum, or stainless steel of adequate gauges, or

25  other materials established by rule which provide equivalent

26  or better strength and durability, and must be properly

27  installed.

28         (3)  The board shall transmit the rules as adopted

29  under subsection (2), hereinafter referred to as the

30  "mausoleum standards," to the Board of Building Codes and

31  Standards, which shall initiate rulemaking under chapter 120

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  to consider such mausoleum standards. If such mausoleum

  2  standards are not deemed acceptable, they shall be returned by

  3  the Board of Building Codes and Standards to the board with

  4  details of changes needed to make them acceptable. If such

  5  mausoleum standards are acceptable, the Board of Building

  6  Codes and Standards shall adopt a rule designating the

  7  mausoleum standards as an approved revision to the State

  8  Minimum Building Codes under part VII of chapter 553. When so

  9  designated by the Board of Building Codes and Standards, such

10  mausoleum standards shall become a required element of the

11  State Minimum Building Codes under s. 553.73(2) and shall be

12  transmitted to each local enforcement agency, as defined in s.

13  553.71(5). Such local enforcement agency shall consider and

14  inspect for compliance with such mausoleum standards as if

15  they were part of the local building code, but shall have no

16  continuing duty to inspect after final approval of the

17  construction pursuant to the local building code. Any further

18  amendments to the mausoleum standards shall be accomplished by

19  the same procedure. Such designated mausoleum standards, as

20  from time to time amended, shall be a part of the State

21  Minimum Building Codes under s. 553.73 until the adoption and

22  effective date of a new statewide uniform minimum building

23  code, which may supersede the mausoleum standards as provided

24  by the law enacting the new statewide uniform minimum building

25  code.

26         (4)  In addition to the rules adopted under subsection

27  (2), the board shall adopt rules providing that following all

28  interments, inurnments, and entombments in mausoleums and

29  columbaria occurring after the effective date of such rules,

30  whether newly constructed or existing, suitable provision must

31  be made, when physically feasible, for sealing each crypt or

                                  18

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  cell in accordance with standards promulgated pursuant to

  2  paragraph (2)(f).

  3         Section 7.  Section 497.257, Florida Statutes, is

  4  amended to read:

  5         497.257  Construction of mausoleums, columbaria, and

  6  belowground crypts; preconstruction trust fund; compliance

  7  requirement.--

  8         (1)  A cemetery company shall start construction of

  9  that section of a mausoleum, columbarium, or bank of

10  belowground crypts in which sales, contracts for sales,

11  reservations for sales, or agreements for sales are being made

12  within 4 years after the date of the first such sale or 50

13  percent of the mausoleum, columbarium, or belowground crypts

14  have been sold and the purchase price has been received,

15  whichever occurs first.  The construction shall be completed

16  within 5 years after the date of the first sale made.

17  However, extensions for completion, not to exceed 1 year, may

18  be granted by the department for good cause shown. If the

19  units have not been completely constructed at the time of need

20  or the time specified herein, all moneys paid shall be

21  refunded upon request, plus interest earned thereon for that

22  portion of the moneys deposited in the trust fund and an

23  amount equal to the interest that would have been earned on

24  that portion of the moneys that were not in trust.

25         (2)  A cemetery company which plans to offer for sale

26  space in a section of a mausoleum, columbarium, or bank of

27  belowground crypts prior to construction shall establish a

28  preconstruction trust fund by written instrument.  The

29  preconstruction trust fund shall be administered by a

30  corporate trustee and operated in conformity with s. 497.417.

31

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  The preconstruction trust fund shall be separate from any

  2  other trust funds that may be required by this chapter.

  3         (3)  Before a sale, contract for sale, reservation for

  4  sale, or agreement for sale in a mausoleum section

  5  columbarium, or bank of belowground crypts may be made, the

  6  cemetery company shall compute the amount to be deposited to

  7  the preconstruction trust fund.  The total amount to be

  8  deposited in the fund for each unit of the project shall be

  9  computed by dividing the cost of the project plus 10 percent

10  of the cost, as computed by a licensed contractor, engineer,

11  or architect, by the number of crypts in the section or bank

12  of belowground crypts or the number of cells in the

13  columbarium.  When payments are received in installments, the

14  percentage of the installment payment placed in trust must be

15  identical to the percentage which the payment received bears

16  to the total cost of the contract, including other merchandise

17  and services purchased.  Preconstruction trust fund payments

18  shall be made within 30 days after the end of the month in

19  which payment is received.

20         (4)  When the cemetery company delivers a completed

21  crypt or cell acceptable to the purchaser in lieu of the crypt

22  or cell purchased prior to construction, all sums deposited to

23  the preconstruction trust fund for that purchaser shall be

24  paid to the cemetery company.

25         (5)  Each cemetery company may negotiate, at the time

26  of establishment of the preconstruction trust fund, a

27  procedure for withdrawal of the escrowed funds as a part of

28  the construction cost of the mausoleum section, columbarium,

29  or bank of belowground crypts contemplated, subject to the

30  approval of the department.  Upon completion of the mausoleum

31  section, columbarium, or bank of belowground crypts, the

                                  20

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  cemetery company shall certify completion to the trustee and

  2  shall be entitled to withdraw all funds deposited to the

  3  account thereof.

  4         (6)  If the mausoleum section, columbarium, or bank of

  5  belowground crypts is not completed within the time limits set

  6  out in this section, the trustee shall contract for and cause

  7  the project to be completed and pay therefor from the trust

  8  funds deposited to the project's account paying any balance,

  9  less cost and expenses, to the cemetery company. The refund

10  provisions of subsection (1) apply only to the extent there

11  are funds remaining in excess of the costs to complete the

12  facilities, prior to any payments to the cemetery company.

13         (7)  On or before April 1 of each year, the trustee

14  shall file with the board in the form prescribed by the board

15  a full and true statement as to the activities of any trust

16  established by the board pursuant to this chapter for the

17  preceding calendar year.

18         (8)  In lieu of the payments outlined hereunder to the

19  preconstruction trust fund, the cemetery company may deliver

20  to the department a performance bond in an amount and by a

21  surety company acceptable to the department.

22         Section 8.  Section 497.527, Florida Statutes, is

23  amended to read:

24         497.527  Civil remedies.--The Attorney General or any

25  person may bring a civil action against a person or company

26  violating the provisions of this chapter in the appropriate

27  circuit court of the county in which the alleged violator

28  resides or has his or her or its principal place of business

29  or in the county wherein the alleged violation occurred. Upon

30  adverse adjudication, the defendant shall be liable for actual

31  damages or $1,000 $500, whichever is greater; however, for a

                                  21

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  violation designated by rule of the board as a minor violation

  2  eligible for a notice of noncompliance pursuant to s.

  3  497.131(3), the defendant shall be liable for actual damages

  4  or $500, whichever is greater.  The court may, as provided by

  5  common law, award punitive damages and may provide such

  6  equitable relief as it deems proper or necessary, including

  7  enjoining the defendant from further violations of this

  8  chapter.

  9         Section 9.  Section 872.02, Florida Statutes, is

10  amended to read:

11         872.02  Injuring or removing tomb or monument;

12  disturbing contents of grave or tomb; penalties.--

13         (1)  A person who willfully and knowingly destroys,

14  mutilates, defaces, injures, or removes any tomb, monument,

15  gravestone, burial mound, earthen or shell monument containing

16  human skeletal remains or associated burial artifacts, or

17  other structure or thing placed or designed for a memorial of

18  the dead, or any fence, railing, curb, or other thing intended

19  for the protection or ornamentation of any tomb, monument,

20  gravestone, burial mound, earthen or shell monument containing

21  human skeletal remains or associated burial artifacts, or

22  other structure before mentioned, or for any enclosure for the

23  burial of the dead, or willfully destroys, mutilates, removes,

24  cuts, breaks, or injures any tree, shrub, or plant placed or

25  being within any such enclosure, commits is guilty of a

26  misdemeanor of the first degree, punishable as provided in s.

27  775.082 or s. 775.083.  However, if the damage to such

28  property is greater than $100 or if any property removed is

29  greater than $100 in value, then the person is guilty of a

30  felony of the third degree, punishable as provided in s.

31  775.082, s. 775.083, or s. 775.084.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (2)  A person who willfully and knowingly disturbs the

  2  contents of a tomb or grave commits is guilty of a felony of

  3  the second third degree, punishable as provided in s. 775.082,

  4  s. 775.083, or s. 775.084.

  5         (3)  This section shall not apply to any person acting

  6  under the direction or authority of the Division of Historical

  7  Resources of the Department of State, to cemeteries operating

  8  under chapter 497, or to any person otherwise authorized by

  9  law to remove or disturb a tomb, monument, gravestone, burial

10  mound, or similar structure, or its contents, as described in

11  subsection (1).

12         (4)  For purposes of this section, the term "tomb"

13  includes any mausoleum, columbarium, or belowground crypt.

14         Section 10.  Section 245.07, Florida Statutes, is

15  amended to read:

16         245.07  Retention of bodies before use; unfit or excess

17  number of bodies, disposition procedure.--All bodies received

18  by the anatomical board shall be retained in receiving vaults

19  for a period of not less than 48 hours before allowing their

20  use for medical science; if at any time more bodies are made

21  available to the anatomical board than can be used for medical

22  science under its jurisdiction, or if a body shall be deemed

23  by the anatomical board to be unfit for anatomical purposes,

24  the anatomical board may notify, in writing, the county

25  commissioners or other legally authorized person, as defined

26  in s. 470.002, the person or entity in control of such body in

27  the county where such person died, to cause it to be buried or

28  cremated in accordance with the already existing rules, laws

29  and practices for disposing of such unclaimed bodies within

30  the confines of the said county. However, prior to having any

31  body buried or cremated, the county shall make a reasonable

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  effort to determine the identity of the body and shall further

  2  make a reasonable effort to contact any relatives of the

  3  deceased person.  If a relative of the deceased person is

  4  contacted and expresses a preference for either burial or

  5  cremation, the county shall make a reasonable effort to

  6  accommodate the request of the relative.  For purposes of this

  7  section, the county commissioners of the county where such

  8  person died shall be considered a "legally authorized person"

  9  as defined in pursuant to s. 470.002(18). A person licensed

10  under chapter 470 or chapter 497 shall not be liable for any

11  damages resulting from cremating such body at the direction of

12  the county's legally authorized person county commission.

13         Section 11.  (1)  There is created within the

14  Department of Banking and Finance the Task Force on Abandoned

15  and Neglected Cemeteries. The task force shall be composed of

16  11 members appointed by the Comptroller and representing the

17  following interests:

18         (a)  A representative of the licensed cemetery

19  industry.

20         (b)  A representative of preneed certificateholders.

21         (c)  A representative of church-owned cemeteries.

22         (d)  A representative of cemeteries owned by nonprofit

23  organizations.

24         (e)  A representative of consumer interests.

25         (f)  A representative of the department.

26         (g)  A person nominated by the Secretary of State as a

27  representative of historic preservation and archaeological

28  interests.

29         (h)  A person nominated by the Florida League of Cities

30  as a representative of municipally owned or maintained

31  cemeteries.

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1         (i)  A person nominated by the Florida Association of

  2  Counties as a representative of county-owned or

  3  county-maintained cemeteries.

  4         (j)  Two citizen members.

  5         (2)  The members of the task force shall elect from

  6  among their number a chair and a vice chair.

  7         (3)  Members of the task force shall be appointed no

  8  later than 30 days after this act becomes a law. The task

  9  force shall serve from the time its members are appointed

10  until adjournment sine die of the 1999 Regular Session of the

11  Legislature.

12         (4)  The members of the task force shall serve without

13  compensation, but shall be reimbursed for per diem and travel

14  expenses as provided in s. 112.061, Florida Statutes.

15         (5)  The department shall provide administrative and

16  staff support for the task force.

17         (6)  The task force shall:

18         (a)  Examine the extent to which some cemeteries in the

19  state are abandoned and therefore have no existing responsible

20  person or entity in charge, or are neglected and therefore are

21  not receiving adequate care and maintenance.

22         (b)  Examine the extent to which some cemeteries in the

23  state, although they are owned and operated by some

24  identifiable person or entity, are neglected due to a lack of

25  sufficient funds to perform adequate care and maintenance or

26  for other reasons.

27         (c)  Examine the extent to which neglected cemeteries

28  in the state create problems for citizens and local

29  governments due to vandalism, storm damage, dilapidation,

30  public health concerns, public safety concerns, lack of

31

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  enforceable standards, and strain on local government

  2  financial resources.

  3         (d)  Examine the extent to which neglected cemeteries

  4  in the state represent a loss of significant historic or

  5  archaeological resources.

  6         (e)  Examine whether or not bringing presently

  7  unlicensed operating cemeteries under state regulation as to

  8  physical facilities and care and maintenance may help

  9  ameliorate the problems caused by neglected cemeteries.

10         (f)  Examine whether or not a program of grants to

11  assist in providing adequate care and maintenance for

12  abandoned and neglected cemeteries may help ameliorate the

13  problems caused by neglected cemeteries and, if so, how the

14  grant program should be structured, administered, and funded.

15         (g)  Examine current governmental and nongovernmental

16  programs that help or could help ameliorate the problems

17  caused by neglected cemeteries, to see if some expansion or

18  increased emphasis or support could do more to help ameliorate

19  the problems caused by neglected cemeteries in a more

20  cost-effective manner than a grant program.

21         (h)  Report findings and make recommendations

22  concerning solutions to problems found by the task force,

23  including a draft of any legislation deemed advisable to

24  implement recommended solutions.

25         (7)  The task force shall produce a preliminary report

26  by December 1, 1998, and a final report by January 15, 1999,

27  detailing its findings and recommendations. Copies of each

28  report shall be transmitted to the Comptroller, the President

29  and the Minority Leader of the Senate, and the Speaker and the

30  Minority Leader of the House of Representatives. Copies shall

31  also be furnished to the Governor, the Secretary of State, the

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1  Attorney General, and the Office of Program Policy Analysis

  2  and Government Accountability. After submission of the final

  3  report, members of the task force may, with the approval of

  4  the chair, receive reimbursement pursuant to subsection (4)

  5  for travel necessary to consult with the department or the

  6  Legislature concerning issues raised by the final report or

  7  other work of the task force, until termination of the task

  8  force as provided in subsection (3).

  9         (8)  This section shall take effect upon this act

10  becoming a law.

11         Section 12.  There is hereby appropriated to the

12  Department of Banking and Finance from the department's

13  Regulatory Trust Fund an amount sufficient to carry out the

14  purposes of this act.

15         Section 13.  Except as otherwise provided herein, this

16  act shall take effect July 1 of the year in which enacted;

17  however, the provisions of sections 497.0255 and 497.255,

18  Florida Statutes, as created by this act, and the changes to

19  section 497.253, Florida Statutes, as amended by this act,

20  shall not be enforceable until the rules implementing those

21  provisions have been adopted by the Board of Funeral and

22  Cemetery Services or the Department of Banking and Finance, as

23  applicable.

24

25

26

27

28

29

30

31

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    Florida Senate - 1998                                  SB 1572
    24-1046A-98                                        See HB 3763




  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises various provisions relating to funeral and
  4    cemetery services. Defines "care and maintenance."
      Provides a duty of care and maintenance of licensed
  5    cemeteries in this state, and provides rulemaking
      authority to the Board of Funeral and Cemetery Services
  6    for such purpose. Provides circumstances under which a
      cemetery or component thereof may be deemed a public
  7    nuisance and provides for abatement thereof.

  8
      Provides additional requirements with respect to the
  9    conveyance of cemetery property to noncemetery uses,
      including certain notice. Provides standards for
10    construction and significant alteration or renovation of
      mausoleums and columbaria. Provides rulemaking authority
11    with respect to such standards to the board, in
      conjunction with the Board of Building Codes and
12    Standards, and provides for incorporation of a portion
      thereof in the State Minimum Building Codes. Requires all
13    newly constructed and significantly altered or renovated
      mausoleums and columbaria to conform to such standards
14    and applicable building codes. Includes columbaria in
      provisions relating to preconstruction requirements
15    applicable to mausoleums and belowground crypts.

16
      Authorizes the Attorney General to bring a civil action
17    for violation of chapter 497, F.S., relating to
      regulation of funeral and cemetery services, in the
18    appropriate court. Increases the minimum liability for
      actual damages, except for violations designated as minor
19    by rule of the board. With respect to prohibitions
      against injuring or removing tombs or monuments or
20    disturbing the contents of graves or tombs, increases the
      applicable penalties and specifies that the term "tomb"
21    includes any mausoleum, columbarium, and belowground
      crypt. Revises provisions relating to retention and
22    disposition of bodies received by an anatomical board.

23
      Creates the Task Force on Abandoned and Neglected
24    Cemeteries within the Department of Banking and Finance.
      Provides for appointment of members and election of
25    officers. Authorizes reimbursement for per diem and
      travel. Requires the department to provide administrative
26    and staff support to the task force. Provides duties of
      the task force and requires the task force to submit
27    preliminary and final reports. Provides for termination
      of the task force upon adjournment sine die of the 1999
28    Regular Session of the Legislature. Provides an
      appropriation.
29

30    See bill for details.

31

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