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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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  The Committee on Real Property & Probate offered the

12  following:

13

14         Amendment (with title amendment) 

15         On page 6, line 12,

16  remove from the bill:  everything after the enacting clause

17

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

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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

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                                                   HOUSE AMENDMENT

                                                  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

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                                                   HOUSE AMENDMENT

                                                  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

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                                                   HOUSE AMENDMENT

                                                  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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                                                   HOUSE AMENDMENT

                                                  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

                                  23

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                                                   HOUSE AMENDMENT

                                                  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,

                                  24

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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

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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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                                                   HOUSE AMENDMENT

                                                  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,

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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