Senate Bill 1572
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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.
1
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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
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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
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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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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
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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
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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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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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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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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
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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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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.
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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.
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