CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 The Committee on Real Property & Probate offered the
12 following:
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14 Amendment (with title amendment)
15 On page 6, line 12,
16 remove from the bill: everything after the enacting clause
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18 and insert in lieu thereof:
19 Section 1. This act may be cited as the "Cemetery
20 Preservation and Consumer Protection Act."
21 Section 2. Section 497.005, Florida Statutes, is
22 amended to read:
23 497.005 Definitions.--As used in this chapter:
24 (1)(17) "At-need solicitation" means any uninvited
25 contact by a licensee or her or his agent for the purpose of
26 the sale of burial services or merchandise to the family or
27 next of kin of a person after her or his death has occurred.
28 (2)(9) "Bank of belowground crypts" means any
29 construction unit of belowground crypts which is acceptable to
30 the department and which a cemetery uses to initiate its
31 belowground crypt program or to add to existing belowground
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 crypt structures.
2 (3)(8) "Belowground crypts" consist of interment space
3 in preplaced chambers, either side by side or multiple depth,
4 covered by earth and sod and known also as "lawn crypts,"
5 "westminsters," or "turf-top crypts."
6 (4)(30) "Board" means the Board of Funeral and
7 Cemetery Services.
8 (5)(12) "Burial merchandise," "funeral merchandise,"
9 or "merchandise" means any personal property offered or sold
10 by any person for use in connection with the final
11 disposition, memorialization, interment, entombment, or
12 inurnment of human remains.
13 (6)(11) "Burial right" means the right to use a grave
14 space, mausoleum, or columbarium for the interment,
15 entombment, or inurnment of human remains.
16 (7)(13) "Burial service," "funeral service," or
17 "service" means any service offered or provided by any person
18 in connection with the final disposition, memorialization,
19 interment, entombment, or inurnment of human remains.
20 (8) "Care and maintenance" means the perpetual process
21 of keeping a cemetery and its lots, graves, grounds,
22 landscaping, roads, paths, parking lots, fences, mausoleums,
23 columbaria, vaults, crypts, utilities, and other improvements,
24 structures, and embellishments in a well-cared-for and
25 dignified condition, so that the cemetery does not become a
26 nuisance or place of reproach and desolation in the community.
27 As specified in the rules of the board, "care and maintenance"
28 may include, but is not limited to, any or all of the
29 following activities: mowing the grass at reasonable
30 intervals; raking and cleaning the grave spaces and adjacent
31 areas; pruning of shrubs and trees; suppression of weeds and
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 exotic flora; and maintenance, upkeep, and repair of drains,
2 water lines, roads, buildings, and other improvements. "Care
3 and maintenance" may include, but is not limited to,
4 reasonable overhead expenses necessary for such purposes,
5 including maintenance of machinery, tools, and equipment used
6 for such purposes. "Care and maintenance" may also include
7 repair or restoration of improvements necessary or desirable
8 as a result of wear, deterioration, accident, damage, or
9 destruction. "Care and maintenance" does not include expenses
10 for the construction and development of new grave spaces or
11 interment structures to be sold to the public.
12 (9)(14) "Casket" means a rigid container which is
13 designed for the encasement of human remains and which is
14 usually constructed of wood or metal, ornamented, and lined
15 with fabric.
16 (10)(2) "Cemetery" means a place dedicated to and used
17 or intended to be used for the permanent interment of human
18 remains. A cemetery may contain land or earth interment;
19 mausoleum, vault, or crypt interment; a columbarium or other
20 structure or place used or intended to be used for the
21 interment of cremated human remains; or any combination of one
22 or more of such structures or places.
23 (11)(5) "Cemetery company" means any legal entity that
24 owns or controls cemetery lands or property.
25 (12)(31) "Certificateholder" or "licensee" means the
26 person or entity that is authorized under this chapter to sell
27 preneed funeral or burial services, preneed funeral or burial
28 merchandise, or burial rights. Each term shall include the
29 other, as applicable, as the context requires. For the
30 purposes of chapter 120, all certificateholders, licensees,
31 and registrants shall be considered licensees.
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 (13)(4) "Columbarium" means a structure or building
2 which is substantially exposed above the ground and which is
3 intended to be used for the inurnment of cremated human
4 remains.
5 (14)(32) "Common business enterprise" means a group of
6 two or more business entities that share common ownership in
7 excess of 50 percent.
8 (15)(28) "Community" means the area within a 15-mile
9 radius surrounding the location or proposed location of a
10 cemetery.
11 (16)(25) "Cremation" includes any mechanical or
12 thermal process whereby a dead human body is reduced to ashes.
13 Cremation also includes any other mechanical or thermal
14 process whereby human remains are pulverized, burned,
15 recremated, or otherwise further reduced in size or quantity.
16 (17)(7) "Department" means the Department of Banking
17 and Finance.
18 (18)(19) "Direct disposer" means any person who is
19 registered in this state to practice direct disposition
20 pursuant to the provisions of chapter 470.
21 (19)(20) "Final disposition" means the final disposal
22 of a dead human body whether by interment, entombment, burial
23 at sea, cremation, or any other means and includes, but is not
24 limited to, any other disposition of remains for which a
25 segregated charge is imposed.
26 (20)(21) "Funeral director" means any person licensed
27 in this state to practice funeral directing pursuant to the
28 provisions of chapter 470.
29 (21)(6) "Grave space" means a space of ground in a
30 cemetery intended to be used for the interment in the ground
31 of human remains.
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 (22)(1) "Human remains" means the bodies of deceased
2 persons and includes bodies in any stage of decomposition and
3 cremated remains.
4 (23)(3) "Mausoleum" means a structure or building
5 which is substantially exposed above the ground and which is
6 intended to be used for the entombment of human remains.
7 (24)(10) "Mausoleum section" means any construction
8 unit of a mausoleum which is acceptable to the department and
9 which a cemetery uses to initiate its mausoleum program or to
10 add to its existing mausoleum structures.
11 (25)(18) "Monument" means any product used for
12 identifying a grave site and cemetery memorials of all types,
13 including monuments, markers, and vases.
14 (26)(27) "Monument establishment" means a facility
15 that operates independently of a cemetery or funeral
16 establishment and that offers to sell monuments or monument
17 services to the public for placement in a cemetery.
18 (27)(24) "Net assets" means the amount by which the
19 total assets of a certificateholder, excluding goodwill,
20 franchises, customer lists, patents, trademarks, and
21 receivables from or advances to officers, directors,
22 employees, salespersons, and affiliated companies, exceed
23 total liabilities of the certificateholder. For purposes of
24 this definition, the term "total liabilities" does not include
25 the capital stock, paid-in capital, or retained earnings of
26 the certificateholder.
27 (28)(29) "Net worth" means total assets minus total
28 liabilities pursuant to generally accepted accounting
29 principles.
30 (29)(16) "Outer burial container" means an enclosure
31 into which a casket is placed and includes, but is not limited
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 to, vaults made of concrete, steel, fiberglass, or copper;
2 sectional concrete enclosures; crypts; and wooden enclosures.
3 (30)(22) "Preneed contract" means any arrangement or
4 method, of which the provider of funeral merchandise or
5 services has actual knowledge, whereby the funeral
6 establishment, direct disposer, or certificateholder agrees to
7 furnish funeral merchandise or service in the future.
8 (31)(26) "Servicing agent" means any person acting as
9 an independent contractor whose fiduciary responsibility is to
10 assist both the trustee and certificateholder hereunder in
11 administrating their responsibilities pursuant to this
12 chapter.
13 (32)(15) "Solicitation" means any communication which
14 directly or implicitly requests an immediate oral response
15 from the recipient.
16 (33)(23) "Statutory accounting" means generally
17 accepted accounting principles, except as modified by this
18 chapter.
19 Section 3. Section 497.0255, Florida Statutes, is
20 created to read:
21 497.0255 Duty of care and maintenance of licensed
22 cemetery.--Every cemetery company or other entity responsible
23 for the care and maintenance of a licensed cemetery in this
24 state shall ensure that the grounds, structures, and other
25 improvements of the cemetery are well cared for and maintained
26 in a proper and dignified condition. The board shall adopt, by
27 no later than July 1, 1999, such rules as are necessary to
28 implement and enforce this section. In developing and
29 promulgating said rules, the board may define different
30 classes of cemeteries or care and maintenance, and may provide
31 for different rules to apply to each of said classes, if the
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 designation of classes and the application of different rules
2 is in the public interest and is supported by findings by the
3 board based on evidence of industry practices, economic and
4 physical feasibility, location, or intended uses; provided,
5 that the rules shall provide minimum standards applicable to
6 all cemeteries. For example, and without limiting the
7 generality of the foregoing, the board may determine that a
8 small rural cemetery with large trees and shade area does not
9 require, and may not be able to attain, the same level of lawn
10 care as a large urban cemetery with large open grassy areas
11 and sprinkler systems.
12 Section 4. Section 497.229, Florida Statutes, is
13 amended to read:
14 497.229 Courts; powers; abatement of nuisances.--
15 (1) In addition to all other means provided by law for
16 the enforcement of a temporary restraining order or an
17 injunction, the circuit court may impound the property of a
18 cemetery company, including books, papers, documents, and
19 records pertaining thereto, and may appoint a receiver or
20 administrator to prevent further violation of this chapter.
21 (2) A court-appointed receiver or administrator may
22 take any action to implement the provisions of the court
23 order, to ensure the performance of the order, and to remedy
24 any breach thereof.
25 (3) Any non-conforming physical condition in a
26 cemetery or component thereof which is the result of a
27 violation of this chapter or of the rules of the board
28 relating to construction, physical operations, or care and
29 maintenance at the cemetery shall be deemed a public nuisance,
30 and the non-conforming physical conditions caused by such
31 violation may be abated as provided in s. 60.05.
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 Section 5. Section 497.253, Florida Statutes, is
2 amended to read:
3 497.253 Minimum acreage; sale or disposition of
4 cemetery lands.--
5 (1) Each licensee shall set aside a minimum of 15
6 contiguous acres of land for use by the licensee as a cemetery
7 and shall not sell, mortgage, lease, or encumber that property
8 without prior written approval of the department.
9 (2) Any lands owned by a licensee and dedicated for
10 use by it as a cemetery, which are contiguous, adjoining, or
11 adjacent to the minimum of 15 contiguous acres described in
12 subsection (1), may be sold, conveyed, or disposed of by the
13 licensee, after obtaining written approval of the department
14 pursuant to subsection (3), for use by the new owner for other
15 purposes than as a cemetery. All of the human remains which
16 have been previously interred therein shall first have been
17 removed from the lands proposed to be sold, conveyed, or
18 disposed of; however, the provisions of ss. 497.515(7) and
19 470.0295 must be complied with prior to any disinterment of
20 human remains. Any and all titles, interests, or burial rights
21 which may have been sold or contracted to be sold in lands
22 which are the subject of the sale shall be conveyed to and
23 revested in the licensee prior to consummation of any such
24 sale, conveyance, or disposition.
25 (3)(a) If the property to be sold, conveyed, or
26 disposed of under subsection (2) has been or is being used for
27 the permanent interment of human remains, the applicant for
28 approval of such sale, conveyance, or disposition shall cause
29 to be published, at least once a week for 4 consecutive weeks,
30 a notice meeting the standards of publication set forth in s.
31 125.66(4)(b)2. The notice shall describe the property in
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 question and the proposed noncemetery use and shall advise
2 substantially affected persons that they may file a written
3 request for a hearing pursuant to chapter 120, within 14 days
4 after the date of last publication of the notice, with the
5 department if they object to granting the applicant's request
6 to sell, convey, or dispose of the subject property for
7 noncemetery uses.
8 (b) If the property in question has never been used
9 for the permanent interment of human remains, no notice or
10 hearing is required.
11 (c) If the property in question has been used for the
12 permanent interment of human remains, the department shall
13 approve the application, in writing, if it finds that it would
14 not be contrary to the public interest. In determining whether
15 to approve the application, the department shall consider any
16 evidence presented concerning the following:
17 1. The historical significance of the subject
18 property, if any.
19 2. The archaeological significance of the subject
20 property, if any.
21 3. The public purpose, if any, to be served by the
22 proposed use of the subject property.
23 4. The impact of the proposed change in use of the
24 subject property upon the inventory of remaining cemetery
25 facilities in the community and upon the other factors
26 enumerated in s. 497.201(3).
27 5. The impact of the proposed change in use of the
28 subject property upon the reasonable expectations of the
29 families of the deceased regarding whether the cemetery
30 property was to remain as a cemetery in perpetuity.
31 6. Whether any living relatives of the deceased
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 actively oppose the relocation of their deceased's remains and
2 the conversion of the subject property to noncemetery uses.
3 7. The elapsed time since the last interment in the
4 subject property.
5 8. Any other factor enumerated in this chapter that
6 the department considers relevant to the public interest.
7 (d) Any deed, mortgage, or other conveyance by a
8 cemetery company or other owner pursuant to subsections (a)
9 and (c) above must contain a disclosure in the following or
10 substantially similar form:
11
12 NOTICE: The property described herein was formerly used and
13 dedicated as a cemetery. Conveyance of this property and its
14 use for noncemetery purposes was authorized by the Florida
15 Department of Banking and Finance by Order No. ...., dated
16 .....
17
18 (e) The department shall adopt such rules as are
19 necessary to carry out the provisions of this section.
20 (4)(3) A licensee may convey and transfer to a
21 municipality or county its real and personal property,
22 together with moneys deposited in trust funds pursuant to this
23 chapter, provided the municipality or county will accept
24 responsibility for maintenance thereof and prior written
25 approval of the department is obtained.
26 (5)(4) The provisions of subsections (1) and (2)
27 relating to a requirement for minimum acreage shall not apply
28 to any cemetery company licensed by the department on or
29 before July 1, 1965, which owns a total of less than 15 acres
30 of land; however, no cemetery company shall dispose of any
31 land without the prior written consent of the department.
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 Section 6. Section 497.255, Florida Statutes, is
2 created to read:
3 497.255 Standards for construction and significant
4 alteration or renovation of mausoleums and columbaria.--
5 (1) All newly constructed and significantly altered or
6 renovated mausoleums and columbaria must, in addition to
7 complying with applicable building codes, conform to the
8 standards adopted under this section.
9 (2) The board shall adopt, by no later than July 1,
10 1999, rules establishing minimum standards for all newly
11 constructed and significantly altered or renovated mausoleums
12 and columbaria; however, in the case of significant
13 alterations or renovations to existing structures, the rules
14 shall apply only, when physically feasible, to the newly
15 altered or renovated portion of such structures, except as
16 specified in subsection (4). In developing and promulgating
17 said rules, the board may define different classes of
18 structures or construction standards, and may provide for
19 different rules to apply to each of said classes, if the
20 designation of classes and the application of different rules
21 is in the public interest and is supported by findings by the
22 board based on evidence of industry practices, economic and
23 physical feasibility, location, or intended uses; provided,
24 that the rules shall provide minimum standards applicable to
25 all construction. For example, and without limiting the
26 generality of the foregoing, the board may determine that a
27 small single-story ground level mausoleum does not require the
28 same level of construction standards that a large multi-story
29 mausoleum might require; or that a mausoleum located in a
30 low-lying area subject to frequent flooding or hurricane
31 threats might require different standards than one located on
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 high ground in an area not subject to frequent severe weather
2 threats. The board shall develop the rules in cooperation
3 with, and with technical assistance from, the Board of
4 Building Codes and Standards of the Department of Community
5 Affairs, to ensure that the rules are in the proper form and
6 content to be included as part of the State Minimum Building
7 Codes under part VII of chapter 553. If the Board of Building
8 Codes and Standards advises that some of the standards
9 proposed by the board are not appropriate for inclusion in
10 such building codes, the board may choose to include those
11 standards in a distinct chapter of its rules entitled
12 "Non-Building-Code Standards for Mausoleums" or "Additional
13 Standards for Mausoleums," or other terminology to that
14 effect. If the board elects to divide the standards into two
15 or more chapters, all such rules shall be binding on licensees
16 and others subject to the jurisdiction of the board, but only
17 the chapter containing provisions appropriate for building
18 codes shall be transmitted to the Board of Building Codes and
19 Standards pursuant to subsection (3). Such rules may be in the
20 form of standards for design and construction; methods,
21 materials, and specifications for construction; or other
22 mechanisms. Such rules shall encompass, at a minimum, the
23 following standards:
24 (a) No structure may be built or significantly altered
25 for use for interment, entombment, or inurnment purposes
26 unless constructed of such material and workmanship as will
27 ensure its durability and permanence, as well as the safety,
28 convenience, comfort, and health of the community in which it
29 is located, as dictated and determined at the time by modern
30 mausoleum construction and engineering science.
31 (b) Such structure must be so arranged that the
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 exterior of any vault, niche, or crypt may be readily examined
2 at any time by any person authorized by law to do so.
3 (c) Such structure must contain adequate provision for
4 drainage and ventilation.
5 (d) Such structure must be of fire-resistant
6 construction. Notwithstanding the requirements of Ch. 633 and
7 s. 553.895, any mausoleum or columbarium constructed of
8 noncombustible materials, as defined in the Standard Building
9 Code, shall not require a sprinkler system.
10 (e) Such structure must be resistant to hurricane and
11 other storm damage to the highest degree provided under
12 applicable building codes for buildings of that class.
13 (f) Suitable provisions must be made for securely and
14 permanently sealing each crypt with durable materials after
15 the interment or entombment of human remains, so that no
16 effluvia or odors may escape therefrom except as provided by
17 design and sanitary engineering standards. Panels for
18 permanent seals must be solid and constructed of materials of
19 sufficient weight, permanence, density, imperviousness, and
20 strength as to ensure their durability and continued
21 functioning. Permanent crypt sealing panels must be securely
22 installed and set in with high quality fire-resistant,
23 resilient, and durable materials after the interment or
24 entombment of human remains. The outer or exposed covering of
25 each crypt must be of a durable, permanent, fire-resistant
26 material; however, plastic, fiberglass, and wood are not
27 acceptable materials for such outer or exposed coverings.
28 (g) Interior and exterior fastenings for hangers,
29 clips, doors, and other objects must be of copper, copper-base
30 alloy, aluminum, or stainless steel of adequate gauges, or
31 other materials established by rule which provide equivalent
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 or better strength and durability, and must be properly
2 installed.
3 (3) The board shall transmit the rules as adopted
4 under subsection (2), hereinafter referred to as the
5 "mausoleum standards," to the Board of Building Codes and
6 Standards, which shall initiate rulemaking under chapter 120
7 to consider such mausoleum standards. If such mausoleum
8 standards are not deemed acceptable, they shall be returned by
9 the Board of Building Codes and Standards to the board with
10 details of changes needed to make them acceptable. If such
11 mausoleum standards are acceptable, the Board of Building
12 Codes and Standards shall adopt a rule designating the
13 mausoleum standards as an approved revision to the State
14 Minimum Building Codes under part VII of chapter 553. When so
15 designated by the Board of Building Codes and Standards, such
16 mausoleum standards shall become a required element of the
17 State Minimum Building Codes under s. 553.73(2) and shall be
18 transmitted to each local enforcement agency, as defined in s.
19 553.71(5). Such local enforcement agency shall consider and
20 inspect for compliance with such mausoleum standards as if
21 they were part of the local building code, but shall have no
22 continuing duty to inspect after final approval of the
23 construction pursuant to the local building code. Any further
24 amendments to the mausoleum standards shall be accomplished by
25 the same procedure. Such designated mausoleum standards, as
26 from time to time amended, shall be a part of the State
27 Minimum Building Codes under s. 553.73 until the adoption and
28 effective date of a new statewide uniform minimum building
29 code, which may supersede the mausoleum standards as provided
30 by the law enacting the new statewide uniform minimum building
31 code.
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 (4) In addition to the rules adopted under subsection
2 (2), the board shall adopt rules providing that following all
3 interments, inurnments, and entombments in mausoleums and
4 columbaria occurring after the effective date of such rules,
5 whether newly constructed or existing, suitable provision must
6 be made, when physically feasible, for sealing each crypt in
7 accordance with standards promulgated pursuant to paragraph
8 (2)(f).
9 (5) For purposes of this section, "significant
10 alteration or renovation" means any addition, renovation or
11 repair which results in the creation of new crypt or niche
12 spaces.
13 Section 7. Section 497.257, Florida Statutes, is
14 amended to read:
15 497.257 Construction of mausoleums, columbaria, and
16 belowground crypts; preconstruction trust fund; compliance
17 requirement.--
18 (1) A cemetery company shall start construction of
19 that section of a mausoleum, columbarium, or bank of
20 belowground crypts in which sales, contracts for sales,
21 reservations for sales, or agreements for sales are being made
22 within 4 years after the date of the first such sale or 50
23 percent of the mausoleum, columbarium, or belowground crypts
24 have been sold and the purchase price has been received,
25 whichever occurs first. The construction shall be completed
26 within 5 years after the date of the first sale made.
27 However, extensions for completion, not to exceed 1 year, may
28 be granted by the department for good cause shown. If the
29 units have not been completely constructed at the time of need
30 or the time specified herein, all moneys paid shall be
31 refunded upon request, plus interest earned thereon for that
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 portion of the moneys deposited in the trust fund and an
2 amount equal to the interest that would have been earned on
3 that portion of the moneys that were not in trust.
4 (2) A cemetery company which plans to offer for sale
5 space in a section of a mausoleum, columbarium, or bank of
6 belowground crypts prior to construction shall establish a
7 preconstruction trust fund by written instrument. The
8 preconstruction trust fund shall be administered by a
9 corporate trustee and operated in conformity with s. 497.417.
10 The preconstruction trust fund shall be separate from any
11 other trust funds that may be required by this chapter.
12 (3) Before a sale, contract for sale, reservation for
13 sale, or agreement for sale in a mausoleum section
14 columbarium, or bank of belowground crypts may be made, the
15 cemetery company shall compute the amount to be deposited to
16 the preconstruction trust fund. The total amount to be
17 deposited in the fund for each unit of the project shall be
18 computed by dividing the cost of the project plus 10 percent
19 of the cost, as computed by a licensed contractor, engineer,
20 or architect, by the number of crypts in the section or bank
21 of belowground crypts or the number of niches in the
22 columbarium. When payments are received in installments, the
23 percentage of the installment payment placed in trust must be
24 identical to the percentage which the payment received bears
25 to the total cost of the contract, including other merchandise
26 and services purchased. Preconstruction trust fund payments
27 shall be made within 30 days after the end of the month in
28 which payment is received.
29 (4) When the cemetery company delivers a completed
30 crypt or niche acceptable to the purchaser in lieu of the
31 crypt or niche purchased prior to construction, all sums
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 deposited to the preconstruction trust fund for that purchaser
2 shall be paid to the cemetery company.
3 (5) Each cemetery company may negotiate, at the time
4 of establishment of the preconstruction trust fund, a
5 procedure for withdrawal of the escrowed funds as a part of
6 the construction cost of the mausoleum section, columbarium,
7 or bank of belowground crypts contemplated, subject to the
8 approval of the department. Upon completion of the mausoleum
9 section, columbarium, or bank of belowground crypts, the
10 cemetery company shall certify completion to the trustee and
11 shall be entitled to withdraw all funds deposited to the
12 account thereof.
13 (6) If the mausoleum section, columbarium, or bank of
14 belowground crypts is not completed within the time limits set
15 out in this section, the trustee shall contract for and cause
16 the project to be completed and pay therefor from the trust
17 funds deposited to the project's account paying any balance,
18 less cost and expenses, to the cemetery company. The refund
19 provisions of subsection (1) apply only to the extent there
20 are funds remaining in excess of the costs to complete the
21 facilities, prior to any payments to the cemetery company.
22 (7) On or before April 1 of each year, the trustee
23 shall file with the board in the form prescribed by the board
24 a full and true statement as to the activities of any trust
25 established by the board pursuant to this chapter for the
26 preceding calendar year.
27 (8) In lieu of the payments outlined hereunder to the
28 preconstruction trust fund, the cemetery company may deliver
29 to the department a performance bond in an amount and by a
30 surety company acceptable to the department.
31 Section 8. Subsection (4) of section 497.417, Florida
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 Statutes, is amended to read:
2 497.417 Disposition of proceeds received on
3 contracts.--
4 (4) The trustee of the trust established pursuant to
5 this section shall only have the power to:
6 (a) Invest in investments as prescribed in s. 215.47
7 and exercise the powers set forth in part IV of chapter 737,
8 provided that the board may by order require the trustee to
9 liquidate or dispose of any investment within 30 days after
10 such order.
11 (b) Purchase from an insurance company, licensed by
12 this state, life insurance policies or annuity contracts not
13 to exceed the aggregate amount of $250,000 on any one
14 individual life.
15 (b)(c) Borrow money up to an aggregate amount of 10
16 percent of trust assets, at interest rates then prevailing
17 from any individual, bank, insurance company, or other source,
18 irrespective of whether any such person is then acting as
19 trustee, and to create security interests in no more than 10
20 percent of trust assets by mortgage, pledge, or otherwise,
21 upon the terms and conditions and for such purposes as the
22 trustee may deem advisable.
23 (c)(d) Commingle the property of the trust with the
24 property of any other trust established pursuant to this
25 chapter and make corresponding allocations and divisions of
26 assets, liabilities, income, and expenses.
27 Section 9. Subsection (12) of section 497.429, Florida
28 Statutes, is hereby repealed.
29 Section 10. Section 497.527, Florida Statutes, is
30 amended to read:
31 497.527 Civil remedies.--The Attorney General or any
18
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 person may bring a civil action against a person or company
2 violating the provisions of this chapter in the appropriate
3 circuit court of the county in which the alleged violator
4 resides or has his or her or its principal place of business
5 or in the county wherein the alleged violation occurred. Upon
6 adverse adjudication, the defendant shall be liable for actual
7 damages caused by such violation or $500, whichever is
8 greater. The court may, as provided by common law, award
9 punitive damages and may provide such equitable relief as it
10 deems proper or necessary, including enjoining the defendant
11 from further violations of this chapter.
12 Section 11. Section 872.02, Florida Statutes, is
13 amended to read:
14 872.02 Injuring or removing tomb or monument;
15 disturbing contents of grave or tomb; penalties.--
16 (1) A person who willfully and knowingly destroys,
17 mutilates, defaces, injures, or removes any tomb, monument,
18 gravestone, burial mound, earthen or shell monument containing
19 human skeletal remains or associated burial artifacts, or
20 other structure or thing placed or designed for a memorial of
21 the dead, or any fence, railing, curb, or other thing intended
22 for the protection or ornamentation of any tomb, monument,
23 gravestone, burial mound, earthen or shell monument containing
24 human skeletal remains or associated burial artifacts, or
25 other structure before mentioned, or for any enclosure for the
26 burial of the dead, or willfully destroys, mutilates, removes,
27 cuts, breaks, or injures any tree, shrub, or plant placed or
28 being within any such enclosure, commits is guilty of a
29 misdemeanor of the first degree, punishable as provided in s.
30 775.082 or s. 775.083. However, if the damage to such
31 property is greater than $100 or if any property removed is
19
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 greater than $100 in value, then the person is guilty of a
2 felony of the third degree, punishable as provided in s.
3 775.082, s. 775.083, or s. 775.084.
4 (2) A person who willfully and knowingly disturbs the
5 contents of a tomb or grave commits is guilty of a felony of
6 the second third degree, punishable as provided in s. 775.082,
7 s. 775.083, or s. 775.084.
8 (3) This section shall not apply to any person acting
9 under the direction or authority of the Division of Historical
10 Resources of the Department of State, to cemeteries operating
11 under chapter 497, or to any person otherwise authorized by
12 law to remove or disturb a tomb, monument, gravestone, burial
13 mound, or similar structure, or its contents, as described in
14 subsection (1).
15 (4) For purposes of this section, the term "tomb"
16 includes any mausoleum, columbarium, or belowground crypt.
17 Section 12. Section 245.07, Florida Statutes, is
18 amended to read:
19 245.07 Retention of bodies before use; unfit or excess
20 number of bodies, disposition procedure.--All bodies received
21 by the anatomical board shall be retained in receiving vaults
22 for a period of not less than 48 hours before allowing their
23 use for medical science; if at any time more bodies are made
24 available to the anatomical board than can be used for medical
25 science under its jurisdiction, or if a body shall be deemed
26 by the anatomical board to be unfit for anatomical purposes,
27 the anatomical board may notify, in writing, the county
28 commissioners or other legally authorized person, as defined
29 in s. 470.002, the person or entity in control of such body in
30 the county where such person died, to cause it to be buried or
31 cremated in accordance with the already existing rules, laws
20
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 and practices for disposing of such unclaimed bodies within
2 the confines of the said county. However, prior to having any
3 body buried or cremated, the county shall make a reasonable
4 effort to determine the identity of the body and shall further
5 make a reasonable effort to contact any relatives of the
6 deceased person. If a relative of the deceased person is
7 contacted and expresses a preference for either burial or
8 cremation, the county shall make a reasonable effort to
9 accommodate the request of the relative. For purposes of this
10 section, the county commissioners of the county where such
11 person died shall be considered a "legally authorized person"
12 as defined in pursuant to s. 470.002(18). A person licensed
13 under chapter 470 or chapter 497 shall not be liable for any
14 damages resulting from cremating or burying such body at the
15 direction of the county's legally authorized person county
16 commission.
17 Section 13. (1) There is created within the
18 Department of Banking and Finance the Task Force on Abandoned
19 and Neglected Cemeteries. The task force shall be composed of
20 11 members appointed by the Comptroller and representing the
21 following interests:
22 (a) A representative of the licensed cemetery
23 industry.
24 (b) A representative of preneed certificateholders.
25 (c) A representative of church-owned cemeteries.
26 (d) A representative of cemeteries owned by nonprofit
27 organizations.
28 (e) A representative of consumer interests.
29 (f) A representative of the department.
30 (g) A person nominated by the Secretary of State as a
31 representative of historic preservation and archaeological
21
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 interests.
2 (h) A person nominated by the Florida League of Cities
3 as a representative of municipally owned or maintained
4 cemeteries.
5 (i) A person nominated by the Florida Association of
6 Counties as a representative of county-owned or
7 county-maintained cemeteries.
8 (j) Two citizen members.
9 (2) The members of the task force shall elect from
10 among their number a chair and a vice chair.
11 (3) Members of the task force shall be appointed no
12 later than 30 days after this act becomes a law. The task
13 force shall serve from the time its members are appointed
14 until adjournment sine die of the 1999 Regular Session of the
15 Legislature.
16 (4) The members of the task force shall serve without
17 compensation, but shall be reimbursed for per diem and travel
18 expenses as provided in s. 112.061, Florida Statutes.
19 (5) The department shall provide administrative and
20 staff support for the task force.
21 (6) The task force shall:
22 (a) Examine the extent to which some cemeteries in the
23 state are abandoned and therefore have no existing responsible
24 person or entity in charge, or are neglected and therefore are
25 not receiving adequate care and maintenance.
26 (b) Examine the extent to which some cemeteries in the
27 state, although they are owned and operated by some
28 identifiable person or entity, are neglected due to a lack of
29 sufficient funds to perform adequate care and maintenance or
30 for other reasons.
31 (c) Examine the extent to which neglected cemeteries
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 in the state create problems for citizens and local
2 governments due to vandalism, storm damage, dilapidation,
3 public health concerns, public safety concerns, lack of
4 enforceable standards, and strain on local government
5 financial resources.
6 (d) Examine the extent to which neglected cemeteries
7 in the state represent a loss of significant historic or
8 archaeological resources.
9 (e) Examine whether or not bringing presently
10 unlicensed operating cemeteries under state regulation as to
11 physical facilities and care and maintenance may help
12 ameliorate the problems caused by neglected cemeteries.
13 (f) Examine whether or not a program of grants to
14 assist in providing adequate care and maintenance for
15 abandoned and neglected cemeteries may help ameliorate the
16 problems caused by neglected cemeteries and, if so, how the
17 grant program should be structured, administered, and funded.
18 (g) Examine current governmental and nongovernmental
19 programs that help or could help ameliorate the problems
20 caused by neglected cemeteries, to see if some expansion or
21 increased emphasis or support could do more to help ameliorate
22 the problems caused by neglected cemeteries in a more
23 cost-effective manner than a grant program.
24 (h) Report findings and make recommendations
25 concerning solutions to problems found by the task force,
26 including a draft of any legislation deemed advisable to
27 implement recommended solutions.
28 (7) The task force shall produce a preliminary report
29 by December 1, 1998, and a final report by January 15, 1999,
30 detailing its findings and recommendations. Copies of each
31 report shall be transmitted to the Comptroller, the President
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 and the Minority Leader of the Senate, and the Speaker and the
2 Minority Leader of the House of Representatives. Copies shall
3 also be furnished to the Governor, the Secretary of State, the
4 Attorney General, and the Office of Program Policy Analysis
5 and Government Accountability. After submission of the final
6 report, members of the task force may, with the approval of
7 the chair, receive reimbursement pursuant to subsection (4)
8 for travel necessary to consult with the department or the
9 Legislature concerning issues raised by the final report or
10 other work of the task force, until termination of the task
11 force as provided in subsection (3).
12 (8) This section shall take effect upon this act
13 becoming a law.
14 Section 14. There is hereby appropriated to the
15 Department of Banking and Finance from the department's
16 Regulatory Trust Fund an amount sufficient to carry out the
17 purposes of this act.
18 Section 15. Except as otherwise provided herein, this
19 act shall take effect July 1 of the year in which enacted;
20 however, the provisions of sections 497.0255 and 497.255,
21 Florida Statutes, as created by this act, and the changes to
22 section 497.253, Florida Statutes, as amended by this act,
23 shall not be enforceable until the rules implementing those
24 provisions have been adopted by the Board of Funeral and
25 Cemetery Services or the Department of Banking and Finance, as
26 applicable.
27
28
29 ================ T I T L E A M E N D M E N T ===============
30 And the title is amended as follows:
31 On page 1, line 2, through page 6, line 9,
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 remove from the title of the bill: all of said lines
2
3 and insert in lieu thereof:
4 An act relating to funeral and cemetery
5 services; providing a short title; amending s.
6 497.005, F.S.; defining "care and maintenance";
7 creating s. 497.0255, F.S.; providing a duty of
8 care and maintenance of licensed cemeteries in
9 this state; providing rulemaking authority to
10 the Board of Funeral and Cemetery Services for
11 such purpose; amending s. 497.229, F.S.;
12 providing circumstances under which a cemetery
13 or component thereof may be deemed a public
14 nuisance and providing for abatement thereof;
15 amending s. 497.253, F.S.; providing additional
16 requirements with respect to the conveyance of
17 cemetery property to noncemetery uses,
18 including certain notice; creating s. 497.255,
19 F.S.; providing standards for construction and
20 significant alteration or renovation of
21 mausoleums and columbaria; providing rulemaking
22 authority with respect to such standards to the
23 board, in conjunction with the Board of
24 Building Codes and Standards, and providing for
25 incorporation of a portion thereof in the State
26 Minimum Building Codes; requiring all newly
27 constructed and significantly altered or
28 renovated mausoleums and columbaria to conform
29 to such standards and applicable building
30 codes; amending s. 497.257, F.S.; including
31 columbaria in provisions relating to
25
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 preconstruction requirements applicable to
2 mausoleums and belowground crypts; amending s.
3 497.417, F.S.; deleting authority of the
4 trustee of a trust to purchase life insurance
5 policies and annuity contracts; repealing
6 subsection (12) of s. 497.429, F.S., deleting
7 the requirement that the trustee of an
8 alternative preneed contract trust make
9 valuations of assets and provide annual reports
10 to the purchaser and the board; amending s.
11 497.527, F.S.; authorizing the Attorney General
12 to bring a civil action for violation of
13 chapter 497, relating to regulation of funeral
14 and cemetery services, in the appropriate
15 court; providing for damages; amending s.
16 872.02, F.S., relating to prohibitions against
17 injuring or removing tombs or monuments or
18 disturbing the contents of graves or tombs;
19 increasing penalties; specifying that the term
20 "tomb" includes any mausoleum, columbarium, and
21 belowground crypt; amending s. 245.07, F.S.;
22 revising provisions relating to retention and
23 disposition of bodies received by an anatomical
24 board; creating the Task Force on Abandoned and
25 Neglected Cemeteries within the Department of
26 Banking and Finance; providing for appointment
27 of members and election of officers;
28 authorizing reimbursement for per diem and
29 travel; requiring the department to provide
30 administrative and staff support; providing
31 duties; requiring preliminary and final
26
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Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 reports; providing for termination of the task
2 force; providing an appropriation; providing
3 effective dates.
4
5 WHEREAS, Florida is the retirement state of choice for
6 most Americans, attracting hundreds of thousands of new
7 citizens who move to this state to live their remaining years
8 enjoying its famous climate and cultural amenities, and
9 WHEREAS, the number of Florida citizens over the age of
10 65 has dramatically increased and will continue to increase at
11 a rate faster than the growth in the state's population as a
12 whole, and
13 WHEREAS, the number of Florida citizens over the age of
14 85 has dramatically increased and will continue to increase
15 more than twice as fast as those over the age of 65, and
16 WHEREAS, in 1995 Florida had the second highest median
17 age in the nation, and
18 WHEREAS, Florida has the third highest unadjusted death
19 rate in the United States, and
20 WHEREAS, 154,734 persons died in Florida in 1996, and
21 WHEREAS, the number of burials in Florida cemeteries
22 will continue to increase in the future, and
23 WHEREAS, gross sales reported by Florida cemetery
24 licensees increased from $175,393,887 in 1996 to $194,427,476
25 in 1997, and
26 WHEREAS, Florida cemetery licensees paid less than
27 one-quarter of one percent of gross sales for their licenses
28 in 1996, and
29 WHEREAS, cemeteries are a critical part of Florida's
30 historical and cultural resources, and
31 WHEREAS, the legislative purposes for regulation of the
27
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 cemetery industry set forth in s. 497.002(1), Florida
2 Statutes, encompass both the prevention of economic harm to
3 consumers and the prevention of significant emotional stress
4 resulting from the failure to properly maintain cemetery
5 grounds, yet the majority of the present statutory and
6 regulatory provisions relate to economic problems but not to
7 care and maintenance, and
8 WHEREAS, the families and loved ones of the deceased
9 who are interred in Florida deserve well-maintained cemetery
10 facilities which provide the highest dignity and respect
11 accorded to the deceased's final resting place that is
12 compatible with reasonable and practical economic constraints,
13 and
14 WHEREAS, inadequate care and maintenance of a cemetery
15 where a loved one is interred causes added stress and
16 emotional trauma to the deceased's family and friends, and
17 WHEREAS, a person who makes burial arrangements with a
18 Florida cemetery or preneed provider will receive assurances
19 concerning the care, dignity, and maintenance of the
20 deceased's final resting place, and
21 WHEREAS, a person who makes such arrangements may not
22 have family members in Florida to ensure that the proper care
23 and maintenance of the deceased's final resting place are
24 being performed, and
25 WHEREAS, the state may be the only entity available to
26 enforce minimum standards of care and maintenance to protect
27 the dignity of the deceased and the memories of the family and
28 loved ones, and
29 WHEREAS, Florida has fewer written standards regulating
30 the physical operations of cemeteries than other states,
31 leading to some serious inconsistencies in the quality of
28
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 cemetery facilities and their care and maintenance in Florida,
2 and
3 WHEREAS, a large number of cemeteries in Florida have
4 no entity responsible for their care and maintenance and have
5 become abandoned, overgrown, dilapidated, and otherwise
6 neglected, creating eyesores and decreasing neighboring
7 property values, and
8 WHEREAS, neglected cemeteries become breeding grounds
9 for mosquitoes, rats, and other vermin, raising serious public
10 health concerns, and
11 WHEREAS, vandalism and other crimes associated with
12 neglected cemeteries are increasing, making the neighborhoods
13 in which they are located less safe for families, and
14 WHEREAS, inadequately maintained graves, crypts, and
15 mausoleums at abandoned cemeteries can be broken open as a
16 result of vandalism or storm damage, exposing human remains,
17 and
18 WHEREAS, citizen complaints often cause local
19 governments to take over or perform care and maintenance at
20 abandoned and neglected cemeteries, leading to a strain on
21 local government financial resources, and
22 WHEREAS, it is an affront to the dignity of our
23 departed and a source of pain to their families when grave
24 spaces are overgrown with weeds and tombstones are broken and
25 scattered due to neglect, and
26 WHEREAS, cemeteries that have been abandoned and
27 neglected for long periods can become obliterated, leading to
28 a loss of important historical, genealogical, and
29 archaeological information, and
30 WHEREAS, Florida's communities should be encouraged to
31 assist in the preservation and protection which is due the
29
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HOUSE AMENDMENT
Bill No. HB 3763
Amendment No. 01 (for drafter's use only)
1 final resting places of the deceased, and
2 WHEREAS, the cemeteries where our deceased loved ones
3 are interred deserve at least as much protection from
4 vandalism and other crime as construction sites and orange
5 groves enjoy under current law, and
6 WHEREAS, the Legislature finds that it is necessary to
7 improve the regulation of the physical facilities and
8 operations of Florida cemeteries in order to honor the
9 memories of deceased citizens, protect the families and
10 friends of the deceased from significant emotional stress,
11 safeguard the integrity of Florida cemeteries, protect the
12 interests of consumers, preserve our historical heritage,
13 protect the public health and welfare, and reduce the
14 financial burden on local governments, NOW, THEREFORE,
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