House Bill 1405

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







    Florida House of Representatives - 1999                HB 1405

        By Representative Crist






  1                      A bill to be entitled

  2         An act relating to funeral and cemetery

  3         services; creating part II of chapter 497,

  4         F.S., the "Neglected, Abandoned, and Unlicensed

  5         Cemetery Act"; providing legislative findings

  6         and intent; providing for retention of status

  7         as a cemetery; providing exemptions; providing

  8         for applicability of specified provisions of

  9         part I; providing for investigation and

10         mediation; providing conversion procedures;

11         requiring licenses under part I for certain

12         activities; providing for care and maintenance;

13         providing for joint and severable liability;

14         providing for ingress and egress; providing a

15         definition of "local government"; providing

16         local government responsibilities; providing

17         procedures for declaring an unlicensed cemetery

18         abandoned; providing for declaration of an

19         unlicensed cemetery as neglected; providing for

20         private contracts; requiring a county registry

21         of cemeteries; requiring surveyors to file a

22         statement of cemetery location under certain

23         circumstances; providing for citizen input in

24         the county registry; providing for transfer of

25         small cemeteries under certain circumstances;

26         providing rulemaking authority to the

27         Department of Banking and Finance to implement

28         the act; amending s. 215.321, F.S.; providing

29         an exception to the deposit of certain funds

30         into the Regulatory Trust Fund; amending s.

31         267.021, F.S.; adding abandoned cemeteries to

                                  1

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         the term "historic property" or "historic

  2         resource"; amending s. 267.061, F.S.;

  3         specifying responsibility of the Division of

  4         Historical Resources with respect to

  5         identifying abandoned cemeteries and submitting

  6         grant applications for historic preservation

  7         purposes; amending s. 380.507, F.S.; specifying

  8         power of the Florida Communities Trust to give

  9         annual notice to city managers and county

10         administrators of available funding for

11         maintenance of abandoned cemeteries; amending

12         s. 380.511, F.S.; providing for deposit of

13         certain moneys into the Florida Communities

14         Trust Fund and specifying uses of such moneys;

15         amending s. 380.512, F.S.; requiring the trust

16         to prepare and submit annually to the Board of

17         Funeral and Cemetery Services a report on such

18         moneys and their subsequent use; amending s.

19         497.527, F.S.; providing for deposit of

20         punitive damages into the Florida Communities

21         Trust Fund for specified purposes; creating s.

22         938.08, F.S.; providing for assessment of

23         additional costs in cases involving criminal

24         mischief and offenses concerning dead bodies

25         and graves; providing for disposition of funds

26         collected; amending s. 470.034, F.S.; requiring

27         licensees and registrants to give notice to

28         prospective purchasers of the ownership of the

29         business providing the merchandise or services;

30         requiring disclosures in advertisements and

31         contracts; providing for voidability of

                                  2

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         contracts; amending ss. 497.201 and 497.213,

  2         F.S.; requiring applications for cemetery

  3         licenses and license renewals to contain

  4         ownership information; amending s. 497.333,

  5         F.S.; requiring sellers of burial rights,

  6         merchandise, or services to give notice to

  7         prospective purchasers of the ownership of the

  8         business providing the rights, merchandise, or

  9         services; requiring disclosures in

10         advertisements and contracts; providing for

11         voidability of contracts; requiring specified

12         state agencies to coordinate recordkeeping and

13         reporting of certain data; amending ss. 245.07,

14         470.002, 470.019, 470.025, 470.027, 470.028,

15         470.036, 497.001, 497.002, 497.003, 497.004,

16         497.005, 497.025, 497.101, 497.103, 497.105,

17         497.119, 497.123, 497.125, 497.127, 497.129,

18         497.131, 497.133, 497.135, 497.137, 497.205,

19         497.209, 497.229, 497.233, 497.237, 497.245,

20         497.253, 497.257, 497.301, 497.309, 497.329,

21         497.337, 497.353, 497.357, 497.361, 497.401,

22         497.403, 497.405, 497.407, 497.413, 497.415,

23         497.417, 497.419, 497.423, 497.427, 497.429,

24         497.431, 497.435, 497.439, 497.441, 497.443,

25         497.447, 497.515, 497.517, 497.519, 497.525,

26         497.529, 497.531, 501.022, 501.604, 626.785,

27         872.02, and 872.05, F.S.; correcting

28         references, to conform; providing an effective

29         date.

30

31

                                  3

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         WHEREAS, hundreds of thousands of people relocate to

  2  Florida to enjoy their remaining years in its famous climate

  3  and cultural amenities, and

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

  5  65 has dramatically increased and will continue to increase at

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

  7  whole, and

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

  9  85 has significantly increased and will continue to increase

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

11         WHEREAS, 153,830 resident deaths were recorded in

12  Florida in 1997, and

13         WHEREAS, the number of burials in Florida cemeteries

14  has increased in the past and is expected to increase in the

15  future, and

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

17  historical, cultural, and genealogical resources, and

18         WHEREAS, a significant portion of Florida's abandoned

19  cemeteries were established by Florida's early settlers, many

20  of whom were immigrants from a variety of ethnic backgrounds,

21  and

22         WHEREAS, a large number of the currently abandoned and

23  neglected cemeteries were originally established by the

24  African-American community and represent an important part of

25  African-American heritage, and

26         WHEREAS, the Task Force on Abandoned and Neglected

27  Cemeteries created by the Legislature in 1998 collected data

28  on 3,583 cemeteries, of which 170 are licensed cemeteries and

29  3,413 are unlicensed and unregulated, and

30

31

                                  4

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         WHEREAS, based on its study, the task force estimated

  2  that 40 percent to 50 percent of all cemeteries in the state

  3  are abandoned or neglected, and

  4         WHEREAS, the task force determined that the problem of

  5  abandonment and neglect is sufficiently widespread to warrant

  6  governmental intervention and that by protecting and enhancing

  7  cemeteries such intervention can prevent the loss of important

  8  genealogical data and prevent abandoned cemeteries from

  9  becoming breeding grounds for public health hazards,

10  vandalism, and other crimes, and

11         WHEREAS, the cemeteries where our departed forefathers

12  are interred are deserving of protection from vandalism,

13  crime, and neglect, and

14         WHEREAS, the task force determined that a grants-in-aid

15  type program using matching funds would help ameliorate the

16  problems created by abandoned and neglected cemeteries, and

17         WHEREAS, the death-care industry in Florida is a

18  multibillion dollar industry, and

19         WHEREAS, competition is the cornerstone of the American

20  economic system, and

21         WHEREAS, the recent trend within the death-care

22  industry of acquisition of the small and independent

23  businesses by large private holding companies has eliminated

24  many of the local independent businesses from the competitive

25  marketplace, and

26         WHEREAS, funeral prices have risen three times faster

27  than the cost of living over the past 5 years, and

28         WHEREAS, in most cases the consumer is unaware, due to

29  lack of disclosure, that many of the local funeral homes and

30  cemeteries are actually owned and operated by the same

31  company, and

                                  5

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         WHEREAS, funeral and cemetery services are typically

  2  the third most expensive consumer purchase behind homes and

  3  cars, and these purchases are usually made by vulnerable

  4  consumers under the stress of heightened emotion and time

  5  constraints, and

  6         WHEREAS, public disclosure is necessary to inform the

  7  consumers with whom funeral and cemetery companies are doing

  8  business so that those consumers may determine whether they

  9  are actually benefiting from competitive pricing, and

10         WHEREAS, it appears that in order to ensure that

11  consumers are benefiting from competitive pricing in making

12  important funeral and cemetery service purchases and in order

13  to clean up existing abandoned and neglected cemeteries and

14  thereby prevent further proliferation of this problem, Florida

15  law must mandate full disclosure of business ownership in the

16  death-care industry and must encourage state agencies, local

17  governments, and religious and civic organizations to work

18  together in taking an active role in acquiring grant funds to

19  assist them in their efforts to maintain abandoned and

20  neglected cemeteries, NOW, THEREFORE,

21

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

23

24         Section 1.  Part II of chapter 497, Florida Statutes,

25  consisting of sections 497.601, 497.602, 497.603, 497.604,

26  497.605, 497.606, 497.607, 497.608, 497.609, 497.611, 497.612,

27  497.613, 497.614, 497.615, 497.616, 497.617, 497.618, 497.619,

28  497.621, 497.622, and 497.623, is created to read:

29                             PART II

30         NEGLECTED, ABANDONED, AND UNLICENSED CEMETERIES

31

                                  6

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         497.601  Short title.--This part may be cited as the

  2  "Neglected, Abandoned, and Unlicensed Cemetery Act."

  3         497.602  Legislative findings and intent.--

  4         (1)  All human burials should be accorded respect based

  5  upon common human dignity without reference to ethnic origin,

  6  cultural background, or religious affiliation. The burying

  7  grounds of human remains should not become neglected to the

  8  extent that the burying grounds become nuisances, public

  9  health hazards, or places of reproach, desolation, or crime in

10  the community. Human dignity requires a degree of care for the

11  burial grounds, cemeteries, or final resting places of our

12  ancestors. In addition, human burial grounds are of

13  historical, archeological, or genealogical significance.

14  Therefore, it is incumbent upon society to provide care to

15  those burying grounds that become neglected and abandoned.

16         (2)  City, county, and state officials should provide

17  leadership in the care of neglected and abandoned cemeteries.

18         (3)  Local governments should encourage cooperation

19  among all levels of government, private citizens, private

20  businesses, industry, foundations, organizations, and other

21  entities to aid local governments to accomplish this task by

22  raising the funds necessary or providing manpower and skills

23  in lieu of funds.

24         (4)  Local governments should take such actions as are

25  necessary to locate, protect, preserve, and provide care for

26  neglected and abandoned cemeteries located within their

27  jurisdiction.

28         497.603  Status.--A cemetery shall retain its status

29  and cannot be used for any other purpose unless and until such

30  time as all human remains have been removed from the land

31  pursuant to the laws of this state.

                                  7

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         497.604  Exemptions.--

  2         (1)  All new cemeteries created in this state on or

  3  after July 1, 1999, must be created and licensed under part I.

  4  However, any unlicensed cemetery, not qualified under

  5  subsection (2), existing on July 1, 1999, shall be permitted

  6  to function, provided it is not in violation of any provision

  7  of part I or this part.

  8         (2)  The provisions of this part, and rules adopted

  9  pursuant thereto, shall apply to all cemeteries, except

10  cemeteries licensed under part I. Entities that qualify under

11  s. 497.003(1)(a) and (4), shall continue to function under

12  part I, unless declared neglected or abandoned under the

13  provisions of this part. All preneed agents of any of these

14  entities must be registered under s. 497.439.

15         497.605  Sections of part I effective in this

16  part.--Sections 497.005, 497.309(1), 497.321, 497.325,

17  497.341, and 497.345 shall apply to all cemeteries, licensed

18  or unlicensed.

19         497.606  Investigation and mediation.--The

20  investigation and mediation procedures established by the

21  department for consumer complaints under s. 497.003(3) apply

22  to all unlicensed cemeteries. These procedures shall provide

23  for the handling of consumer complaints at the lowest

24  authority level.

25         497.607  Conversion procedures.--When an unlicensed

26  cemetery wishes to convert to a licensed cemetery to be

27  operated under part I, it shall follow the conversion

28  procedures of part I.

29         497.608  Licenses required for certain cemeteries.--A

30  cemetery that sells burial rights or burial merchandise or

31  services must be operated under and comply with part I. A

                                  8

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  cemetery that builds a mausoleum or columbarium must be

  2  operated under and comply with part I.

  3         497.609  Care and maintenance.--The owner of an

  4  unlicensed cemetery shall provide proper care and maintenance,

  5  which means the perpetual process of keeping a cemetery and

  6  its lots, gravel, grounds, landscaping, roads, paths, other

  7  means of access, parking lots, fences, buildings, vaults, and

  8  other improvements, structures, and embellishments in a

  9  well-cared-for and dignified condition, so that the cemetery

10  does not become a nuisance or place of reproach and desolation

11  in the community, in keeping with the definition of "care and

12  maintenance" in s. 497.005(8) and rules promulgated

13  thereunder. However, in the event a landowner, after purchase,

14  finds upon the land a cemetery, burying ground, or final

15  resting place of human remains, which the landowner did not

16  create or dedicate and which was not disclosed in the title

17  search or otherwise made known to him or her prior to

18  purchase, the landowner shall have 60 days from the date of

19  discovery of the cemetery to register it with the clerk of the

20  court and, within 6 months after registration, shall either

21  establish a care and maintenance program for the cemetery or

22  locate the boundaries of the cemetery and convey the cemetery

23  to the local government in lieu of any civil liability.

24         497.611  Civil liability.--An individual owner and the

25  officers and directors of a corporate owner of an unlicensed

26  cemetery shall be held personally liable, jointly and

27  severally, for failing to provide care and maintenance as set

28  forth in this part for the cemetery.

29         497.612  Ingress and egress.--In addition to the

30  provisions of s. 704.08, a representative designated by the

31  county or city in which the cemetery is located, a

                                  9

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  representative designated by the sheriff in the county in

  2  which the cemetery is located, and a representative designated

  3  by the department shall have an easement or right of entry for

  4  ingress and egress for the purpose of inspection of the

  5  cemetery at reasonable times and in a reasonable manner to

  6  determine compliance with this part and part I.

  7         497.613  Definitions.--All of the definitions of s.

  8  497.005 shall be effective in this part. In addition, for

  9  purposes of this part, the term "local government" means any

10  county or municipality in this state.

11         497.614  Local government responsibilities.--Local

12  governments should encourage religious and civic organizations

13  that work within their jurisdiction to apply for available

14  grants and other funding for the adoption and maintenance of

15  abandoned cemeteries. On or after July 1, 1999, it shall be

16  the duty of each local government in this state to identify,

17  preserve, and protect all neglected and abandoned unlicensed

18  cemeteries within its jurisdiction and, for such purposes, may

19  budget annually an amount to accomplish this.

20         497.615  Abandonment.--Even though an unlicensed

21  cemetery shall not lose its character and status as a

22  cemetery, it may be declared an abandoned cemetery. The

23  procedure for declaring an unlicensed cemetery abandoned is as

24  follows:

25         (1)  An application to declare a cemetery abandoned may

26  be made to the circuit court of the county in which the

27  cemetery is located. This application may be made by five

28  local citizens or the owner, after requesting assistance from

29  the local government, or it may be made by the local

30  government in which the cemetery is located if:

31         (a)  The owner of the cemetery land:

                                  10

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         1.  Cannot be found or is unknown;

  2         2.  Does not maintain it in accordance with this part;

  3  or

  4         3.  Was a corporation that has been dissolved; or

  5         (b)  The cemetery has not been registered or licensed

  6  as a cemetery under part I or this part.

  7         (2)  Notice by the local government must be given to

  8  the owner of record and all interested parties.

  9         (3)  Whether the local government is the applicant or

10  not, it shall be responsible for the cost of the application,

11  including the cost of any title search and a survey of the

12  cemetery.

13         (4)  The court, upon determining that the cemetery

14  exists and that the cemetery is abandoned pursuant to this

15  part, shall, by order, declare the cemetery that is the

16  subject matter of the application to be abandoned, and that

17  order shall contain a prohibition against further burials in

18  the abandoned cemetery.

19         (5)  Upon the recordation in the official records of

20  the county of the court's order declaring the cemetery

21  abandoned, the local government named in the order shall

22  immediately become the owner of the cemetery with all the

23  rights and obligations set forth in part I and this part, and

24  all the assets, funds, and trust accounts shall thereafter be

25  the property of the local government.

26         (6)  The order of abandonment may contain other matters

27  which the court determines are needed and which are not in

28  violation of part I and this part.

29         (7)  From the date of the order of abandonment, the

30  local government shall be responsible for the maintenance of

31  the cemetery in accordance with this part.

                                  11

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (8)  If the court does not enter an order of

  2  abandonment, it shall enter an order of denial of the

  3  application.

  4         497.616  Neglected cemetery.--An unlicensed cemetery

  5  may be declared a neglected cemetery when the owner fails to

  6  provide care and maintenance as defined in s. 497.609 for a

  7  period of 6 months. From the date of notice to the owner by

  8  the local government by due public notice as prescribed in s.

  9  166.0415 that the cemetery does not present a well-cared-for

10  and dignified appearance, the owner shall have 30 days to

11  correct the violation, and may request and receive one 30-day

12  extension upon good cause shown. Whenever, after such period,

13  the board of county commissioners or the city council

14  determines, according to this part after public hearing, that

15  an unlicensed cemetery has failed to be maintained for 6

16  months or has received three notices of neglected status, the

17  cemetery shall be deemed neglected. The local government shall

18  provide for the proper and seasonable cutting of all weeds and

19  grass and the removal of all debris and shall have unlimited

20  access to perform those tasks. The local government may

21  maintain an action against the owner of the cemetery to

22  recover an amount equal to the value of such maintenance. Upon

23  failure of the owner to pay such amount, the local government

24  may proceed to the circuit court for an order of abandonment

25  in the same manner as that available in the case of abandoned

26  cemeteries. However, the owner and the officers and directors

27  of a corporate owner shall remain personally liable for such

28  costs, and no further burial rights may be issued in that

29  cemetery.

30         497.617  Private contracts.--Any local government

31  required under this part to care for an abandoned or neglected

                                  12

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  cemetery may contract with any individual, firm, corporation,

  2  or association for the care and maintenance of that cemetery,

  3  or for the opening and closing of graves, or may use its

  4  employees to perform those functions.

  5         497.618  Registry of cemeteries.--The clerk of the

  6  court of each county shall establish and maintain a registry

  7  of cemeteries within the county. This registry shall contain

  8  the physical location of each cemetery in the county and the

  9  name, address, and phone number of the owner of the cemetery

10  and of the person responsible for the care and maintenance of

11  the cemetery. Such registry may include unmarked human

12  burials, including any burial mound or earthen or shell

13  monument containing human skeletal remains or associated

14  burial artifacts. This registry shall be available to the

15  public for review or copying upon request. The clerk of the

16  court may charge a fee for copies of the registry. Upon

17  receipt of registration information from any source, the clerk

18  of the court shall send a copy of each filing, with registry

19  number thereon, to the local government in which the cemetery

20  is located and a copy to the department. It shall be the

21  responsibility of the local government to investigate the

22  information disclosed in the filing to verify or determine the

23  proper legal description of the cemetery and, through the

24  search, to determine the owner. A declaration of the cemetery,

25  its proper legal description, and the owner thereof shall then

26  be recorded in the official records of the county. A copy of

27  this recorded declaration shall be forwarded to the department

28  for inclusion in the state database. Thereafter, the

29  department shall forward notice to the owner for registration

30  of the cemetery with the department. The owner shall be

31  required to file a copy of the registration with the

                                  13

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  department to the clerk of the court for use to update the

  2  registry.

  3         497.619  Filings by surveyors.--If, in the course of a

  4  land survey of property located in this state, a surveyor

  5  licensed by the state locates any cemetery which has not been

  6  previously registered, the surveyor shall file a statement

  7  with the clerk of the court of the location of the cemetery.

  8  The statement shall be filed on a form provided by the clerk

  9  of the court and developed to fit the database of the

10  department. No fee shall be charged the surveyor for such

11  filing.

12         497.621  Filings by citizens.--Any person, family,

13  group, association, society, or county officer may submit to

14  the clerk of the court, on forms provided by the clerk, the

15  names and locations of any cemetery located in the county for

16  inclusion in the county registry. No fee shall be charged for

17  such submission.

18         497.622  Transfer of small cemeteries.--If an abandoned

19  cemetery, established in accordance with this part, contains

20  fewer than 20 burials, has no historial or archaeological

21  significance as determined by the Division of Historical

22  Resources and the local government, and is located in the path

23  of imminent development, the concerned developer, at the

24  developer's expense, shall be permitted to transfer the

25  remains of the buried persons to an abandoned cemetery being

26  maintained by the local government, provided the provisions of

27  ss. 470.0295 and 497.515(7) have been complied with prior to

28  any disinterment of human remains. If, after diligent search

29  by the property owner or developer, the next of kin or other

30  legally authorized person cannot be found, the board of county

31  commissioners or the city council, after public notice and

                                  14

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  public hearing, may, by resolution, direct the disinterment of

  2  the human remains and their reburial in a cemetery under the

  3  control and maintenance of the local government, provided the

  4  removal and reburial includes the removal of all stones,

  5  markers, and other items of identification and their

  6  establishment in the same configuration in their new location.

  7         497.623  Rules.--The department has authority to adopt

  8  rules pursuant to ss. 120.54 and 120.536(1) to implement this

  9  part.

10         Section 2.  Section 215.321, Florida Statutes, is

11  amended to read:

12         215.321  Regulatory Trust Fund.--All funds received

13  pursuant to ss. 494.001-494.0077;, chapter 497, except as

14  otherwise provided in s. 497.527; chapter 516;, chapter 520;,

15  or part I of chapter 559 shall be deposited into the

16  Regulatory Trust Fund.

17         Section 3.  Subsection (3) of section 267.021, Florida

18  Statutes, 1998 Supplement, is amended to read:

19         267.021  Definitions.--For the purpose of this act, the

20  term:

21         (3)  "Historic property" or "historic resource" means

22  any prehistoric or historic district, site, building, object,

23  or other real or personal property of historical,

24  architectural, or archaeological value, and folklife

25  resources. These properties or resources may include, but are

26  not limited to, monuments, memorials, Indian habitations,

27  ceremonial sites, abandoned cemeteries, abandoned settlements,

28  sunken or abandoned ships, engineering works, treasure trove,

29  artifacts, or other objects with intrinsic historical or

30  archaeological value, or any part thereof, relating to the

31  history, government, and culture of the state.

                                  15

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 4.  Paragraph (p) is added to subsection (3) of

  2  section 267.061, Florida Statutes, to read:

  3         267.061  Historic properties; state policy,

  4  responsibilities.--

  5         (3)  DIVISION RESPONSIBILITY.--It is the responsibility

  6  of the division to:

  7         (p)  Work with state agencies, local governments, and

  8  private organizations and individuals in identifying abandoned

  9  cemeteries and submitting semiannual grant applications

10  pursuant to s. 267.0617 in assisting the local governments in

11  carrying out their historic preservation responsibilities and

12  programs.

13         Section 5.  Subsection (15) is added to section

14  380.507, Florida Statutes, to read:

15         380.507  Powers of the trust.--The trust shall have all

16  the powers necessary or convenient to carry out the purposes

17  and provisions of this part, including:

18         (15)  To give annual notice to city managers and county

19  administrators of available funding for maintenance of

20  abandoned cemeteries. Such notice shall consist of information

21  pertaining to trust programs, including information that funds

22  are available for the identification and maintenance of

23  abandoned cemeteries, eligibility requirements for receiving

24  trust funds under this part, information regarding matching

25  dollar grants to local governments and nonprofit organizations

26  for the purposes set forth in s. 380.511(2), requests for

27  proposals, and potential moneys available for abandoned

28  cemeteries under the Historical Preservation Grant Program set

29  forth in chapter 267.

30         Section 6.  Section 380.511, Florida Statutes, is

31  amended to read:

                                  16

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         380.511  Florida Communities Trust Fund.--

  2         (1)  There is created the Florida Communities Trust

  3  Fund as a nonlapsing, revolving fund for projects, activities,

  4  acquisitions, and operating expenses necessary to carry out

  5  this part.  The fund shall be held and administered by the

  6  trust.  The following shall be credited to or deposited in the

  7  Florida Communities Trust Fund:

  8         (a)  All moneys and revenue from the operation,

  9  management, sale, lease, or other disposition of land, water

10  areas, related resources, and the facilities thereon acquired

11  or constructed under this part.

12         (b)  Moneys accruing to any agency for the purposes

13  listed in this part.

14         (c)  Proceeds from the sale of environmental license

15  plates authorized in s. 320.08058(5).

16         (d)  Moneys collected pursuant to ss. 497.257 and

17  938.08.

18         (e)(d)  Other moneys as the Legislature authorizes.

19

20  All moneys so deposited into the Florida Communities Trust

21  Fund shall be trust funds for the uses and purposes set forth

22  in this section, within the meaning of s. 215.32(1)(b); and

23  such moneys shall not become or be commingled with the General

24  Revenue Fund of the state, as defined by s. 215.32(1)(a).

25         (2)(a)  It is the intent of the Legislature that moneys

26  received under paragraph (1)(d) shall be held for matching

27  dollar grants for local initiatives by cities, counties, and

28  nonprofit organizations to adopt and care for abandoned

29  cemeteries. Such funds shall be deposited and held in the

30  Florida Communities Trust Fund for the 1999-2000 fiscal year,

31

                                  17

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  and every fiscal year thereafter no less than 90 percent of

  2  the moneys shall be appropriated for the following purposes:

  3         1.  Expenses of repair or reinterment.

  4         2.  Repair of vandalism and storm damage at cemeteries.

  5         3.  Essential maintenance at abandoned cemeteries,

  6  including, but not limited to, construction and repair of

  7  perimeter fences, placement of security lighting, replacement

  8  of doors and locks, removal of dilapidated structures, and

  9  other measures to protect public health and safety and provide

10  physical security.

11         (b)  Up to 10 percent of the moneys received under

12  paragraph (1)(d) shall be used to pay all necessary expenses

13  to carry out the purposes of this part.

14         (3)(2)  The trust may expend any moneys in the Florida

15  Communities Trust Fund to acquire land, water areas, and

16  related resources; to provide technical assistance to local

17  governments to establish transfer of development rights

18  programs within their jurisdictions; and to construct,

19  improve, enlarge, extend, operate, and maintain capital

20  improvements and facilities in accordance with this part,

21  except as limited by s. 380.510(7).

22         (4)(3)  The trust may disburse moneys in the Florida

23  Communities Trust Fund to pay all necessary expenses to carry

24  out the purposes of this part, except as limited by s.

25  380.510(7).

26         Section 7.  Section 380.512, Florida Statutes, is

27  amended to read:

28         380.512  Annual reports report.--

29         (1)  The trust shall submit to the Governor, the

30  Speaker of the House of Representatives, the President of the

31  Senate, and the minority leaders of the House of

                                  18

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  Representatives and the Senate, within 3 months after the end

  2  of its fiscal year, a complete and detailed report setting

  3  forth:

  4         (a)(1)  Its operations and accomplishments.

  5         (b)(2)  Its receipts and expenditures during the fiscal

  6  year, in accordance with the categories or classifications the

  7  trust establishes for its operating and capital outlay

  8  purposes.

  9         (c)(3)  Its assets and liabilities at the end of its

10  fiscal year and the status of reserve, special, or other

11  funds.

12         (d)(4)  An evaluation of the effectiveness of the

13  projects undertaken in carrying out this part.

14         (e)(5)  Identification of additional funding,

15  legislation, or other resources required to carry out the

16  objectives of this part more effectively.

17         (f)(6)  An account of any other trust or department

18  duties established by this part.

19         (2)  The trust shall also prepare and submit annually

20  to the Board of Funeral and Cemetery Services a report

21  documenting the amount of funds received under s.

22  380.511(1)(d), the amount of such funds spent under s.

23  380.511(2), and the recipients of the funds so spent.

24         Section 8.  Section 497.527, Florida Statutes, 1998

25  Supplement, is amended to read:

26         497.527  Civil remedies.--The Attorney General or any

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

28  violating the provisions of this part chapter in the

29  appropriate court of the county in which the alleged violator

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

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

                                  19

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  adverse adjudication, the defendant shall be liable for actual

  2  damages caused by such violation.  The court may, as provided

  3  by common law, award punitive damages and may provide such

  4  equitable relief as it deems proper or necessary, including

  5  enjoining the defendant from further violations of this part

  6  chapter. Any punitive damages recovered by the Attorney

  7  General shall be deposited in the Florida Communities Trust

  8  Fund created by s. 380.511, to be used for the purposes

  9  enumerated in s. 380.511(2).

10         Section 9.  Section 938.08, Florida Statutes, is

11  created to read:

12         938.08  Cases involving criminal mischief and offenses

13  concerning dead bodies and graves.--Any person who pleads

14  guilty or nolo contendere to, or is convicted of, criminal

15  mischief under s. 806.13 or any offense under chapter 872

16  shall pay an additional cost in the case, in addition to any

17  other cost required to be imposed by law, in the sum of $100

18  for a felony and $50 for a misdemeanor. All funds collected

19  from the costs assessed under this section shall be deposited

20  in the Florida Communities Trust Fund created by s. 380.511,

21  to be used for the purposes enumerated in s. 380.511(2).

22         Section 10.  Section 470.034, Florida Statutes, is

23  amended to read:

24         470.034  Disclosure of information to public.--If a

25  licensee or registrant offers to provide services to the

26  public, she or he shall be subject to disciplinary action as

27  provided in this chapter if she or he:

28         (1)  Fails to reasonably provide by telephone, upon

29  request, accurate information regarding the retail prices of

30  funeral merchandise and services offered for sale by that

31  licensee or registrant.

                                  20

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (2)  Fails to fully disclose all of her or his

  2  available services and merchandise prior to the selection of a

  3  casket.  The full disclosure required shall identify what is

  4  included in the funeral or direct disposition and the prices

  5  of all services and merchandise provided by the licensee or

  6  registrant. Full disclosure shall also be made in the case of

  7  a funeral or direct disposition with regard to the use of

  8  funeral merchandise which is not to be disposed of with the

  9  body, and written permission shall be obtained from the

10  purchaser.

11         (3)  Makes any false or misleading statements of the

12  legal requirement as to the conditions under which

13  preservation of a dead human body is required or as to the

14  necessity of a casket or outer burial container.

15         (4)  Fails to disclose, when such disclosure is

16  desired, the components of the prices for alternatives such

17  as:

18         (a)  Graveside service.

19         (b)  Direct disposition.

20         (c)  Body donation without any rites or ceremonies

21  prior to the delivery of the body and prices of service if

22  there are to be such after the residue has been removed

23  following the use thereof.

24         (5)  Fails to include in each advertisement for

25  merchandise or services a clear and conspicuous statement

26  identifying the owner of the business that would provide the

27  merchandise or services. If the owner is a corporation as

28  defined in this subsection, the name and headquarters address

29  of the corporation shall also be listed in all forms of

30  advertising and solicitation, including, but not limited to,

31  newspaper, direct mail, telephone, outdoor, Internet,

                                  21

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  television, and radio advertising and solicitation used by the

  2  funeral or direct disposal establishment. In print

  3  advertisements, the type font used in the disclosure portion

  4  shall be no smaller than the smallest type face used in the

  5  main body of the advertisement. As used in this subsection,

  6  the term "owner" includes, but is not limited to, a publicly

  7  traded corporation owning more than 10 percent of a licensee

  8  or registrant.

  9         (6)  Fails to identify any corporate owner on the main

10  exterior sign as required in this subsection. Where an

11  ownership interest of 10 percent or more in a funeral or

12  direct disposal establishment is held by a publicly traded

13  corporation, the main exterior sign shall identify the name of

14  the publicly traded corporation holding that ownership

15  interest, as listed on the New York, American, or other

16  domestic or foreign stock exchange where the stock of the

17  corporation is traded or sold. The name shall be a minimum of

18  4 inches in height.

19         (7)  Fails to provide to each prospective purchaser of

20  merchandise or services, prior to the purchase, a clear and

21  conspicuous written statement identifying the owner of the

22  business that would provide the merchandise or services. As

23  used in this subsection, the term "owner" includes, but is not

24  limited to, a publicly traded corporation owning more than 10

25  percent of a licensee or registrant.

26         (8)  Fails to include in each contract for purchase of

27  merchandise or services a clear and conspicuous statement

28  identifying the owner of each business that will provide the

29  merchandise or services. Additionally, if a contract does not

30  contain this disclosure, the contract is voidable by the

31  purchaser. In any action based on this subsection, the

                                  22

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  licensee or registrant has the burden of proof to show that

  2  the disclosure was made. As used in this subsection, the term

  3  "owner" includes, but is not limited to, a publicly traded

  4  corporation owning more than 10 percent of a licensee or

  5  registrant.

  6         Section 11.  Subsections (1) and (2) of section

  7  497.201, Florida Statutes, are amended to read:

  8         497.201  Cemetery companies; license; application;

  9  fee.--

10         (1)  No person may operate a cemetery without first

11  obtaining a license from the department, unless specifically

12  exempted from this part chapter.

13         (2)  The department may require any person desiring to

14  establish a cemetery company who applies for a license to

15  provide any information reasonably necessary to make a

16  determination of the applicant's eligibility for licensure.

17  Any person desiring to establish a cemetery company shall

18  first:

19         (a)  File an application that, which states the exact

20  location of the proposed cemetery, which site shall contain

21  not less than 15 contiguous acres, and that identifies the

22  business or corporation that will own the cemetery; provide a

23  financial statement signed by all officers of the company that

24  attests which attest to a net worth of at least $50,000, which

25  net worth must be continuously maintained as a condition of

26  licensure; and pay an application fee of $5,000;

27         (b)  Create a legal entity; and

28         (c)  Demonstrate to the satisfaction of the board that

29  the applicant possesses the ability, experience, financial

30  stability, and integrity to operate a cemetery.

31

                                  23

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 12.  Section 497.213, Florida Statutes, is

  2  amended to read:

  3         497.213  Annual license fees.--

  4         (1)  The department shall collect from each cemetery

  5  company operating under the provisions of this part chapter an

  6  annual license fee as follows:

  7         (a)  For a cemetery with less than $25,000 annual gross

  8  sales....................................................$250.

  9         (b)  For a cemetery with at least $25,000 but less than

10  $100,000 annual gross sales..............................$350.

11         (c)  For a cemetery with annual gross sales of at least

12  $100,000 but less than $250,000..........................$600.

13         (d)  For a cemetery with annual gross sales of at least

14  $250,000 but less than $500,000..........................$900.

15         (e)  For a cemetery with annual gross sales of at least

16  $500,000 but less than $750,000........................$1,350.

17         (f)  For a cemetery with annual gross sales of at least

18  $750,000 but less than $1,000,000......................$1,750.

19         (g)  For a cemetery with annual gross sales of

20  $1,000,000 or more.....................................$2,650.

21         (2)  An application for license renewal shall be

22  submitted, along with the applicable license fee, on or before

23  December 31 each year in the case of an existing cemetery

24  company and before any sale of cemetery property in the case

25  of a new cemetery company or a change of ownership or control

26  pursuant to ss. 497.205 and 497.209. The application must

27  identify the business or corporation that owns or will own the

28  cemetery. If the renewal application and fee are not received

29  by December 31, the department shall collect a penalty in the

30  amount of $200 per month or fraction of a month for each month

31  delinquent.  For the purposes of this subsection, a renewal

                                  24

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  application and fee submitted by mail shall be considered

  2  timely submitted and received if postmarked by December 31 of

  3  the applicable year.

  4         Section 13.  Section 497.333, Florida Statutes, is

  5  amended to read:

  6         497.333  Disclosure of information to public.--A

  7  licensee offering to provide burial rights, merchandise, or

  8  services to the public shall:

  9         (1)  Provide by telephone, upon request, accurate

10  information regarding the retail prices of burial merchandise

11  and services offered for sale by the licensee.

12         (2)  Fully disclose all regularly offered services and

13  merchandise prior to the selection of burial services or

14  merchandise.  The full disclosure required shall identify the

15  prices of all burial rights, services, and merchandise

16  provided by the licensee.

17         (3)  Not make any false or misleading statements of the

18  legal requirement as to the necessity of a casket or outer

19  burial container.

20         (4)  Provide a good faith estimate of all fees and

21  costs the customer will incur to use any burial rights,

22  merchandise, or services purchased.

23         (5)  Provide to the customer, upon request, a current

24  copy of the bylaws of the licensee.

25         (6)  Provide to the customer, upon the purchase of any

26  burial right, merchandise, or service, a written contract, the

27  form of which has been approved by the board.

28         (a)  The written contract shall be completed as to all

29  essential provisions prior to the signing of the contract by

30  the customer.

31

                                  25

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (b)  The written contract shall provide an itemization

  2  of the amounts charged for all services, merchandise, and

  3  fees, which itemization shall be clearly and conspicuously

  4  segregated from everything else on the written contract.

  5         (c)  A description of the merchandise covered by the

  6  contract to include, when applicable, model, manufacturer, and

  7  other relevant specifications.

  8         (7)  Provide the licensee's policy on cancellation and

  9  refunds to each customer.

10         (8)  In a manner established by rule of the board,

11  provide on the signature page, clearly and conspicuously in

12  boldfaced 10-point type or larger, the following:

13         (a)  The words "purchase price."

14         (b)  The amount to be trusted.

15         (c)  The amount to be refunded upon contract

16  cancellation.

17         (d)  The amounts allocated to merchandise, services,

18  and cash advances.

19         (e)  The toll-free number of the department which is

20  available for questions or complaints.

21         (f)  A statement that the purchaser shall have 30 days

22  from the date of execution of contract to cancel the contract

23  and receive a total refund of all moneys paid.

24         (9)  Include in each advertisement for burial rights,

25  merchandise, or services a clear and conspicuous statement

26  identifying the owner of the business that would provide the

27  burial rights, merchandise, or services. If the owner is a

28  corporation as defined in this subsection, the name and

29  headquarters address of the corporation shall also be listed

30  in all forms of advertising and solicitation, including, but

31  not limited to, newspaper, direct mail, telephone, outdoor,

                                  26

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  Internet, television, and radio advertising and solicitation

  2  used by the funeral or direct disposal establishment. In print

  3  advertisements, the type font used in the disclosure portion

  4  shall be no smaller than the smallest type face used in the

  5  main body of the advertisement. As used in this subsection,

  6  the term "owner" includes, but is not limited to, a publicly

  7  traded corporation owning more than 10 percent of a licensee

  8  or registrant providing such rights, merchandise, or services.

  9         (10)  Identify any corporate owner on the main exterior

10  sign as required in this subsection. Where an ownership

11  interest of 10 percent or more in a funeral or direct disposal

12  establishment is held by a publicly traded corporation, the

13  main exterior sign shall identify the name of the publicly

14  traded corporation holding that ownership interest, as listed

15  on the New York, American, or other domestic or foreign stock

16  exchange where the stock of the corporation is traded or sold.

17  The name shall be a minimum of 4 inches in height.

18         (11)  Provide to each prospective purchaser, prior to

19  the purchase, a clear and conspicuous written statement

20  identifying the owner of the business that would provide the

21  burial rights, merchandise, or services. As used in this

22  subsection, the term "owner" includes, but is not limited to,

23  a publicly traded corporation owning more than 10 percent of a

24  licensee or registrant providing such rights, merchandise, or

25  services.

26         (12)  Include in each contract for purchase of burial

27  rights, merchandise, or services, a clear and conspicuous

28  statement identifying the owner of each business that will

29  provide the burial rights, merchandise, or services.

30  Additionally, if a contract does not contain this disclosure,

31  the contract is voidable by the purchaser. In any action based

                                  27

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  on this subsection, the licensee or registrant has the burden

  2  of proof to show that the disclosure was made. As used in this

  3  subsection, the term "owner" includes, but is not limited to,

  4  a publicly traded corporation owning more than 10 percent of a

  5  licensee or registrant providing such rights, merchandise, or

  6  services.

  7         Section 14.  In order to provide more useful

  8  information to the Legislature and the public concerning

  9  consumer complaints about the funeral and cemetery industries,

10  the Department of Business and Professional Regulation, the

11  Department of Banking and Finance, and the Department of

12  Agriculture and Consumer Services are to coordinate the method

13  in which they keep records of and report data on such

14  complaints, including the categories and the format used to

15  organize this data.

16         Section 15.  Section 245.07, Florida Statutes, 1998

17  Supplement, is amended to read:

18         245.07  Retention of bodies before use; unfit or excess

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

20  by the anatomical board shall be retained in receiving vaults

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

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

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

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

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

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

27  commissioners or other legally authorized person, as defined

28  in s. 470.002, in the county where such person died, to cause

29  it to be buried or cremated in accordance with the rules, laws

30  and practices for disposing of such unclaimed bodies. However,

31  prior to having any body buried or cremated, the county shall

                                  28

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  make a reasonable effort to determine the identity of the body

  2  and shall further make a reasonable effort to contact any

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

  4  deceased person is contacted and expresses a preference for

  5  either burial or cremation, the county shall make a reasonable

  6  effort to accommodate the request of the relative.  For

  7  purposes of this section, the county commissioners of the

  8  county where such person died shall be considered a legally

  9  authorized person as defined in s. 470.002. A person licensed

10  under chapter 470 or part I of chapter 497 shall not be liable

11  for any damages resulting from cremating or burying such body

12  at the direction of the county's legally authorized person.

13         Section 16.  Subsection (21) of section 470.002,

14  Florida Statutes, 1998 Supplement, is amended to read:

15         470.002  Definitions.--As used in this chapter:

16         (21)  "Preneed sales agent" means any person who is

17  registered under part I of chapter 497 to sell preneed burial

18  or funeral service and merchandise contracts or direct

19  disposition contracts in this state.

20         Section 17.  Paragraph (c) of subsection (2) of section

21  470.019, Florida Statutes, is amended to read:

22         470.019  Disciplinary actions against direct disposers

23  and direct disposal establishments.--

24         (2)  The following shall be sufficient grounds for the

25  penalties imposed under subsection (1):

26         (c)  Having been disciplined by a regulatory agency in

27  any jurisdiction for any offense that would constitute a

28  violation of this chapter, chapter 245, chapter 382, chapter

29  406, part I or part II of chapter 497, or chapter 872 or that

30  directly relates to the practice of direct disposition.

31

                                  29

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 18.  Subsection (13) of section 470.025,

  2  Florida Statutes, is amended to read:

  3         470.025  Cinerator facility; licensure.--

  4         (13)  A cinerator facility shall not place human

  5  remains in a retort unless the human remains are in an

  6  alternative container or casket. Human remains may be

  7  transported or stored if they are completely covered, and at

  8  all times treated with dignity and respect. None of the

  9  provisions contained in this subsection require the purchase

10  of a casket for cremation. This subsection applies to at-need

11  contracts and preneed contracts entered into pursuant to part

12  I of chapter 497 after June 1, 1996.

13         Section 19.  Section 470.027, Florida Statutes, is

14  amended to read:

15         470.027  Exemption of certificateholder under part I of

16  chapter 497.--Nothing in this chapter shall prevent a

17  certificateholder under part I of chapter 497 from selling

18  preneed funerals and funeral merchandise through its agents

19  and employees.

20         Section 20.  Subsections (1) and (2) of section

21  470.028, Florida Statutes, are amended to read:

22         470.028  Preneed sales; registration of agents.--

23         (1)  All sales of preneed funeral service contracts or

24  direct disposition contracts shall be made pursuant to part I

25  of chapter 497.

26         (2)  No person may act as an agent for a funeral

27  director, funeral establishment, direct disposer, or direct

28  disposer establishment with respect to the sale of preneed

29  contracts unless such person is registered pursuant to part I

30  of chapter 497.

31

                                  30

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 21.  Paragraphs (q) and (x) of subsection (1)

  2  of section 470.036, Florida Statutes, 1998 Supplement, are

  3  amended to read:

  4         470.036  Disciplinary proceedings.--

  5         (1)  The following acts constitute grounds for which

  6  the disciplinary actions in subsection (2) may be taken:

  7         (q)  Paying to or receiving from any organization,

  8  agency, or person, either directly or indirectly, any

  9  commission, bonus, kickback, or rebate in any form whatsoever

10  for any of the activities regulated under this chapter, by the

11  licensee or registrant, or her or his agent, assistant, or

12  employee; however, this provision shall not prohibit the

13  payment of commissions by a funeral director, funeral

14  establishment, or cinerator facility to its preneed agents

15  registered pursuant to part I of chapter 497 or to licensees

16  under this chapter.

17         (x)  Having been disciplined by a regulatory agency in

18  any jurisdiction for any offense that would constitute a

19  violation of this chapter, chapter 245, chapter 382, chapter

20  406, part I or part II of chapter 497, or chapter 872 or that

21  directly relates to the ability to practice under this

22  chapter.

23         Section 22.  Section 497.001, Florida Statutes, is

24  amended to read:

25         497.001  Short title.--This part chapter may be cited

26  as the "Florida Funeral and Cemetery Services Act."

27         Section 23.  Subsection (2) of section 497.002, Florida

28  Statutes, is amended to read:

29         497.002  Purpose and intent.--

30         (2)  Subject to certain interests of society, the

31  Legislature finds that every competent adult has the right to

                                  31

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  control the decisions relating to her or his own funeral

  2  arrangements. Accordingly, unless otherwise stated herein, it

  3  is the Legislature's express intent that nothing contained in

  4  this part chapter should be construed or interpreted in any

  5  manner as to subject preneed contract purchasers to federal

  6  income taxation under the grantor trust rules contained in ss.

  7  671 et seq. of the Internal Revenue Code of 1986, as amended.

  8         Section 24.  Subsections (1) and (3) of section

  9  497.003, Florida Statutes, are amended to read:

10         497.003  Cemeteries; exemption; investigation and

11  mediation.--

12         (1)  The provisions of this part chapter relating to

13  cemeteries and all rules adopted pursuant thereto shall apply

14  to all cemeteries except for:

15         (a)  Church cemeteries of less than 5 acres which

16  provide only single-level ground burial.

17         (b)  County and municipal cemeteries.

18         (c)  Community and nonprofit association cemeteries

19  which provide only single-level ground burial and do not sell

20  burial spaces or burial merchandise.

21         (d)  Cemeteries owned and operated or dedicated by

22  churches prior to June 23, 1976.

23         (e)  Cemeteries beneficially owned and operated since

24  July 1, 1915, by a fraternal organization or its corporate

25  agent.

26         (f)  A columbarium consisting of less than one-half

27  acre which is owned by and immediately contiguous to an

28  existing church facility and is subject to local government

29  zoning.  The church establishing such a columbarium shall

30  ensure that the columbarium is perpetually kept and maintained

31  in a manner consistent with the intent of this part chapter.

                                  32

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  If the church relocates, the church shall relocate all of the

  2  urns and remains placed in the columbarium which were placed

  3  therein during its use by the church.

  4         (g)  Family cemeteries of less than 2 acres which do

  5  not sell burial spaces or burial merchandise.

  6         (h)  A mausoleum consisting of 2 acres or less which is

  7  owned by and immediately contiguous to an existing church or

  8  synagogue facility and is subject to local government zoning.

  9  The church or synagogue establishing such a mausoleum must

10  ensure that the mausoleum is kept and maintained in a manner

11  consistent with the intent of this part chapter and limit its

12  availability to members of the church or synagogue.  The

13  church or synagogue establishing such a mausoleum must have

14  been incorporated for at least 25 years and must have

15  sufficient funds in an endowment fund to cover the costs of

16  construction of the mausoleum.

17         (3)  All cemeteries exempted under this part chapter

18  which are in excess of 5 acres must submit to the following

19  investigation and mediation procedure by the department in the

20  event of a consumer complaint:

21         (a)  The exempt cemetery shall make every effort to

22  first resolve a consumer complaint;

23         (b)  If the complaint is not resolved, the exempt

24  cemetery shall advise the consumer of the right to seek

25  investigation and mediation by the department;

26         (c)  If the department receives a complaint, it shall

27  attempt to resolve it telephonically with the parties

28  involved;

29         (d)  If the complaint still is not resolved, the

30  department shall conduct an investigation and mediate the

31  complaint;

                                  33

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (e)  If the department conducts an onsite investigation

  2  and face-to-face mediation with the parties, it may charge the

  3  exempt cemetery a single investigation and mediation fee not

  4  to exceed $300, which fee shall be set by rule and shall be

  5  calculated on an hourly basis; and

  6         (f)  If all attempts to resolve the consumer complaint

  7  fail, the cemetery shall be subject to proceedings for

  8  penalties and discipline under this part chapter.

  9         Section 25.  Section 497.004, Florida Statutes, is

10  amended to read:

11         497.004  Existing companies, effect of this part

12  chapter.--Cemetery companies existing on October 1, 1993,

13  shall continue in full force and effect but shall be operated

14  in accordance with the provisions of this part chapter.

15         Section 26.  Section 497.005, Florida Statutes, 1998

16  Supplement, is amended to read:

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

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

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

20  of burial services or merchandise to the family or next of kin

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

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

23  construction unit of belowground crypts which is acceptable to

24  the department and which a cemetery uses to initiate its

25  belowground crypt program or to add to existing belowground

26  crypt structures.

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

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

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

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

31

                                  34

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  Services.

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

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

  5  any person for use in connection with the final disposition,

  6  memorialization, interment, entombment, or inurnment of human

  7  remains.

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

  9  space, mausoleum, or columbarium for the interment,

10  entombment, or inurnment of human remains.

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

12  means any service offered or provided by any person in

13  connection with the final disposition, memorialization,

14  interment, entombment, or inurnment of human remains.

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

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

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

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

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

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

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

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

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

24  following activities:  mowing the grass at reasonable

25  intervals; raking and cleaning the grave spaces and adjacent

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

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

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

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

30  reasonable overhead expenses necessary for such purposes,

31  including maintenance of machinery, tools, and equipment used

                                  35

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  repair or restoration of improvements necessary or desirable

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

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

  5  for the construction and development of new grave spaces or

  6  interment structures to be sold to the public.

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

  8  for the encasement of human remains and which is usually

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

10  fabric.

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

12  intended to be used for the permanent interment of human

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

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

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

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

17  or more of such structures or places.

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

19  owns or controls cemetery lands or property.

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

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

22  sell preneed funeral or burial services, preneed funeral or

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

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

25  purposes of chapter 120, all certificateholders, licensees,

26  and registrants shall be considered licensees.

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

28  is substantially exposed above the ground and which is

29  intended to be used for the inurnment of cremated human

30  remains.

31

                                  36

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  or more business entities that share common ownership in

  3  excess of 50 percent.

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

  5  radius surrounding the location or proposed location of a

  6  cemetery.

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

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

  9  Cremation also includes any other mechanical or thermal

10  process whereby human remains are pulverized, burned,

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

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

13  Finance.

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

15  registered in this state to practice direct disposition

16  pursuant to the provisions of chapter 470.

17         (19)  "Final disposition" means the final disposal of a

18  dead human body whether by interment, entombment, burial at

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

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

21  segregated charge is imposed.

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

23  this state to practice funeral directing pursuant to the

24  provisions of chapter 470.

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

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

27  of human remains.

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

29  persons and includes bodies in any stage of decomposition and

30  cremated remains.

31

                                  37

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  is substantially exposed above the ground and which is

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

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

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

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

  7  its existing mausoleum structures.

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

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

10  monuments, markers, and vases.

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

12  operates independently of a cemetery or funeral establishment

13  and that offers to sell monuments or monument services to the

14  public for placement in a cemetery.

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

16  assets of a certificateholder, excluding goodwill, franchises,

17  customer lists, patents, trademarks, and receivables from or

18  advances to officers, directors, employees, salespersons, and

19  affiliated companies, exceed total liabilities of the

20  certificateholder.  For purposes of this definition, the term

21  "total liabilities" does not include the capital stock,

22  paid-in capital, or retained earnings of the

23  certificateholder.

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

25  liabilities pursuant to generally accepted accounting

26  principles.

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

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

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

30  sectional concrete enclosures; crypts; and wooden enclosures.

31

                                  38

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  method, of which the provider of funeral merchandise or

  3  services has actual knowledge, whereby the funeral

  4  establishment, direct disposer, or certificateholder agrees to

  5  furnish funeral merchandise or service in the future.

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

  7  independent contractor whose fiduciary responsibility is to

  8  assist both the trustee and certificateholder hereunder in

  9  administrating their responsibilities pursuant to this part

10  chapter.

11         (32)  "Solicitation" means any communication which

12  directly or implicitly requests an immediate oral response

13  from the recipient.

14         (33)  "Statutory accounting" means generally accepted

15  accounting principles, except as modified by this part

16  chapter.

17         Section 27.  Section 497.025, Florida Statutes, is

18  amended to read:

19         497.025  Liability.--The cemetery owners, or the

20  officers or directors of a cemetery company, may be held

21  jointly and severally liable for any income from the care and

22  maintenance trust fund which income is not used directly for

23  the care and maintenance of a cemetery.  The department or the

24  receiver or administrator appointed pursuant to this part

25  chapter may bring suit in circuit court to recover such funds.

26         Section 28.  Subsection (2) of section 497.101, Florida

27  Statutes, is amended to read:

28         497.101  Board of Funeral and Cemetery Services;

29  membership; appointment; terms.--

30         (2)  Two members of the board must be funeral directors

31  licensed under chapter 470 who are not associated with a

                                  39

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  cemetery company through ownership interests or through

  2  employment with a company which has an ownership interest in a

  3  cemetery.  Two members must be owners or operators of a

  4  cemetery licensed under this part chapter.  The remaining

  5  three members must be residents of the state who have never

  6  been licensed as funeral directors or embalmers and who are in

  7  no way connected with a cemetery, the death care industry, or

  8  the practice of embalming, funeral directing, or direct

  9  disposition.  At least one consumer member of the board must

10  be 60 years of age or older.  No licensee on the board may be

11  associated by employment or ownership with a funeral

12  establishment or cemetery which is owned partly or wholly by a

13  person, business, corporation, or other entity which is

14  associated with another licensee on the board.

15         Section 29.  Subsection (1) of section 497.103, Florida

16  Statutes, 1998 Supplement, is amended to read:

17         497.103  Rulemaking authority of board and

18  department.--

19         (1)  The board has authority to adopt rules pursuant to

20  ss. 120.536(1) and 120.54 to implement provisions of this part

21  chapter conferring duties upon it.  The department may adopt

22  rules pursuant to ss. 120.536(1) and 120.54 to administer

23  provisions of this part chapter conferring duties upon it.

24         Section 30.  Subsections (4) and (5) of section

25  497.105, Florida Statutes, 1998 Supplement, are amended to

26  read:

27         497.105  Department of Banking and Finance; powers and

28  duties.--The Department of Banking and Finance shall:

29         (4)  Develop a training program for persons newly

30  appointed to membership on the board.  The program shall

31  familiarize such persons with the substantive and procedural

                                  40

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  laws and rules which relate to the regulation under this part

  2  chapter and with the structure of the department.

  3         (5)  Adopt rules pursuant to ss. 120.536(1) and 120.54

  4  to implement the provisions of this part chapter conferring

  5  duties upon it.

  6         Section 31.  Subsection (1) of section 497.119, Florida

  7  Statutes, is amended to read:

  8         497.119  Mediation.--

  9         (1)  Notwithstanding the provisions of s. 497.131, the

10  board may adopt rules to designate which violations of this

11  part chapter are appropriate for mediation.  The board may

12  designate as mediation offenses those complaints where harm

13  caused by the licensee is economic in nature or can be

14  remedied by the licensee.

15         Section 32.  Paragraph (a) of subsection (2) of section

16  497.123, Florida Statutes, is amended to read:

17         497.123  Powers to administer oaths and issue

18  subpoenas.--

19         (2)(a)  In the event of substantial noncompliance with

20  a subpoena or subpoena duces tecum issued or caused to be

21  issued by the board or the department, the board or the

22  department may petition the circuit court or any other court

23  of competent jurisdiction of the county in which the person

24  subpoenaed resides or has its principal place of business for

25  an order requiring the subpoenaed person to appear and testify

26  and to produce such books, accounts, records, and other

27  documents as are specified in the subpoena duces tecum.  The

28  court may grant injunctive relief restraining the person from

29  advertising, promoting, soliciting, entering into, offering to

30  enter into, continuing, or completing a contract pursuant to

31  the provisions of this part chapter.  The court may grant such

                                  41

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  other relief, including, but not limited to, the restraint, by

  2  injunction or appointment of a receiver, of any transfer,

  3  pledge, assignment, or other disposition of the person's

  4  assets or any concealment, alteration, destruction, or other

  5  disposition of books, accounts, records, or other documents

  6  and materials as the court deems appropriate, until the person

  7  has fully complied with the subpoena duces tecum and the

  8  department has completed its investigation or examination.  In

  9  addition, the court may order the refund of any fees collected

10  in a transaction whenever books and documents substantiating

11  the transaction are not produced or cannot be produced.  The

12  department is entitled to the summary procedure provided in s.

13  51.011, and the court shall advance such cause on its

14  calendar.  Attorney's fees and any other costs incurred by the

15  department to obtain an order granting, in whole or part, a

16  petition for enforcement of a subpoena or subpoena duces tecum

17  shall be taxed against the subpoenaed person, and failure to

18  comply with such order is a contempt of court.

19         Section 33.  Section 497.125, Florida Statutes, is

20  amended to read:

21         497.125  Evidence; examiner's worksheets, investigative

22  reports, other related documents.--In any hearing in which the

23  financial examiner acting under authority of this part chapter

24  is available for cross-examination, any official written

25  report, worksheet, or other related paper, or a duly certified

26  copy thereof, compiled, prepared, drafted, or otherwise made

27  by the financial examiner, after being duly authenticated by

28  the examiner, may be admitted as competent evidence upon the

29  oath of the examiner that the report, worksheet, or related

30  paper was prepared as a result of an examination of the books

31

                                  42

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  and records of a licensee or other person conducted pursuant

  2  to the authority of this part chapter.

  3         Section 34.  Subsections (1) and (4) of section

  4  497.127, Florida Statutes, are amended to read:

  5         497.127  Injunction to restrain violations.--

  6         (1)  The board or the department may bring action

  7  through its own counsel in the name and on behalf of the state

  8  against any person who has violated or is about to violate any

  9  provision of this part chapter or any rule or order of the

10  department issued under this part chapter to enjoin the person

11  from continuing in or engaging in any act in furtherance of

12  the violation.

13         (4)  For the purpose of this section, the violation of

14  this part chapter by a person who is not licensed by the

15  department or the board or by any person who aids and abets

16  the unlicensed activity shall be presumed to be irreparable

17  harm to the public health, safety, or welfare.

18         Section 35.  Subsection (1) of section 497.129, Florida

19  Statutes, is amended to read:

20         497.129  Cease and desist order; civil penalty;

21  enforcement.--

22         (1)  The department or the board has the power to issue

23  and serve upon any person an order to cease and desist and to

24  take corrective action whenever it has reason to believe the

25  person is violating, has violated, or is about to violate any

26  provision of this part chapter, any rule or order of the

27  department or the board issued under this part chapter, or any

28  written agreement between the person and the department or the

29  board.  All procedural matters relating to issuance and

30  enforcement of such a cease and desist order are governed by

31  the Administrative Procedure Act.

                                  43

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 36.  Subsections (1) and (11) of section

  2  497.131, Florida Statutes, are amended to read:

  3         497.131  Disciplinary proceedings.--

  4         (1)  The department shall cause to be investigated any

  5  complaint which is filed before it if the complaint is in

  6  writing, signed by the complainant, and legally sufficient.  A

  7  complaint is legally sufficient if it contains ultimate facts

  8  which show that a violation of this part chapter, or of any

  9  rule promulgated by the department or board has occurred.  In

10  order to determine legal sufficiency, the department may

11  require supporting information or documentation.  The

12  department may investigate or continue to investigate, and the

13  department and the board may take appropriate final action on,

14  a complaint even though the original complainant withdraws it

15  or otherwise indicates her or his desire not to cause the

16  complaint to be investigated or prosecuted to completion.  The

17  department may investigate an anonymous complaint if the

18  complaint is in writing and is legally sufficient, if the

19  alleged violation of law or rules is substantial, and if the

20  department has reason to believe, after preliminary inquiry,

21  that the alleged violations in the complaint are true.  The

22  department may investigate a complaint made by a confidential

23  informant if the complaint is legally sufficient, if the

24  alleged violation of law or rule is substantial, and if the

25  department has reason to believe, after preliminary inquiry,

26  that the allegations of the complainant are true.  The

27  department may initiate an investigation if it has reasonable

28  cause to believe that a person has violated a state statute, a

29  rule of the department, or a rule of the board.  When an

30  investigation of any person is undertaken, the department

31  shall promptly furnish to the person or her or his attorney a

                                  44

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  copy of the complaint or document which resulted in the

  2  initiation of the investigation.  The person may submit a

  3  written response to the information contained in such

  4  complaint or document within 20 days after service to the

  5  person of the complaint or document.  The person's written

  6  response shall be considered by the probable cause panel.

  7  This right to respond shall not prohibit the department from

  8  issuing a summary emergency order if necessary to protect the

  9  public.  However, if the Comptroller or her or his designee

10  and the chair of the board or the chair of its probable cause

11  panel agree in writing that such notification would be

12  detrimental to the investigation, the department may withhold

13  notification.  The department may conduct an investigation

14  without notification to any person if the act under

15  investigation is a criminal offense.

16         (11)  A privilege against civil liability is hereby

17  granted to any complainant or any witness with regard to

18  information furnished with respect to any investigation or

19  proceeding pursuant to this part chapter, unless the

20  complainant or witness acted in bad faith or with malice in

21  providing such information.

22         Section 37.  Subsection (1) of section 497.133, Florida

23  Statutes, is amended to read:

24         497.133  Disciplinary guidelines.--

25         (1)  The board shall adopt, by rule, and periodically

26  review the disciplinary guidelines applicable to each ground

27  for disciplinary action which may be imposed by the board

28  pursuant to this part chapter, and any rule of the board or

29  department.

30         Section 38.  Section 497.135, Florida Statutes, is

31  amended to read:

                                  45

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         497.135  Penalty for giving false information.--In

  2  addition to, or in lieu of, any other discipline imposed

  3  pursuant to this part chapter, the act of knowingly giving

  4  false information in the course of applying for or obtaining a

  5  license from the department or the board, with intent to

  6  mislead a public servant in the performance of his or her

  7  official duties, or the act of attempting to obtain or

  8  obtaining a license to practice by misleading statements or

  9  knowing misrepresentations constitutes a felony of the third

10  degree, punishable as provided in s. 775.082, s. 775.083, or

11  s. 775.084.

12         Section 39.  Subsections (1) and (3) of section

13  497.137, Florida Statutes, are amended to read:

14         497.137  Unlicensed activity; emergency cease and

15  desist order; administrative penalty; civil penalty;

16  enforcement; attorney's fees and costs.--

17         (1)  In addition to other remedies provided to the

18  department or the board, when the department or the board has

19  probable cause to believe that any person who is not licensed

20  by the department or the board has violated any provision of

21  this part chapter or any rule adopted pursuant thereto, the

22  department or the board may issue and deliver to the person an

23  emergency order to cease and desist from such a violation.  In

24  addition, the department or the board may issue and deliver an

25  emergency order to cease and desist to any person who aids and

26  abets the unlicensed activity.  The issuance of the emergency

27  order to cease and desist shall be effective immediately upon

28  issuance and shall be subject to s. 120.68.  For the purpose

29  of enforcing an emergency cease and desist order, the

30  department or the board may file a proceeding in the name of

31  the state seeking issuance of an injunction against any person

                                  46

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  who violates any provisions of such an order.  In addition to

  2  the foregoing remedies, the department or the board may impose

  3  an administrative penalty not to exceed $5,000 per incident

  4  pursuant to the provisions of chapter 120.  If the department

  5  or the board is required to seek enforcement of the agency

  6  order for a penalty pursuant to s. 120.69, it shall be

  7  entitled to collect reasonable attorney's fees and costs,

  8  together with any reasonable costs of collecting the

  9  attorney's fees and costs.

10         (3)  For the purpose of this section, the violation of

11  this part chapter by a person who is not licensed by the

12  department or the board or by any person who aids and abets

13  the unlicensed activity shall be presumed to be an immediate

14  serious danger to the public health, safety, or welfare.

15         Section 40.  Section 497.205, Florida Statutes, is

16  amended to read:

17         497.205  License not assignable or transferable.--

18         (1)  A license issued to operate a cemetery pursuant to

19  this part chapter is not transferable or assignable, and a

20  licensee may not develop or operate any cemetery authorized by

21  this part chapter at any location other than that contained in

22  the application for the license.

23         (2)  Any person who seeks to purchase or acquire

24  control of an existing licensed cemetery shall first apply to

25  the board for approval of the proposed change of ownership.

26  The application shall contain the name and address of the

27  proposed new owner, a financial statement signed by all

28  officers of the company attesting to a net worth of at least

29  $50,000, and other information required by the board.  The

30  board may approve a change of ownership only after it has

31  conducted an investigation of the applicant and determined

                                  47

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  that the proposed new owner is qualified by character,

  2  experience, and financial responsibility to control and

  3  operate the cemetery in a legal and proper manner.  The

  4  department may examine the records of the cemetery company as

  5  part of the investigation in accordance with this part

  6  chapter.  The application shall be accompanied by an

  7  investigation fee of $5,000. Upon consummation of the purchase

  8  or acquisition of control and upon receipt of all documents

  9  required by the board, the department shall issue the new

10  license for that cemetery effective on the date of that

11  purchase or acquisition of control.

12         Section 41.  Section 497.209, Florida Statutes, is

13  amended to read:

14         497.209  Application for change of control among

15  existing stockholders or partners; investigation fee.--Any

16  stockholders or partners who intend to acquire control of an

17  existing cemetery company from other stockholders or partners

18  shall first apply to the board for approval for the proposed

19  change of control.  The application shall contain the names

20  and addresses of the stockholders or partners seeking to

21  acquire control and a financial statement signed by all

22  officers of the company attesting to a net worth of at least

23  $50,000.  The board may approve the change of control only

24  after it has conducted an investigation of the applicants and

25  determined that such individuals are qualified by character,

26  experience, and financial responsibility to control and

27  operate the cemetery company in a legal and proper manner and

28  that the interest of the public generally will not be

29  jeopardized by the change in ownership and management.  The

30  department may examine the records of the cemetery company as

31  part of the investigation in accordance with this part

                                  48

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  chapter.  The application shall be accompanied by an

  2  investigation fee of $2,500.

  3         Section 42.  Subsections (1) and (3) of section

  4  497.229, Florida Statutes, 1998 Supplement, are amended to

  5  read:

  6         497.229  Courts; powers; abatement of nuisances.--

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

  8  the enforcement of a temporary restraining order or an

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

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

11  records pertaining thereto, and may appoint a receiver or

12  administrator to prevent further violation of this part

13  chapter.

14         (3)  Any nonconforming physical condition in a cemetery

15  or component thereof which is the result of a violation of

16  this part chapter or of the rules of the board relating to

17  construction, physical operations, or care and maintenance at

18  the cemetery shall be deemed a public nuisance, and the

19  nonconforming physical conditions caused by such violation may

20  be abated as provided in s. 60.05.

21         Section 43.  Paragraphs (a), (c), (d), (e), (f), (g),

22  (h), (i), (j), and (w) of subsection (1) and paragraphs (a),

23  (c), and (d) of subsection (5) of section 497.233, Florida

24  Statutes, are amended to read:

25         497.233  Disciplinary proceedings.--

26         (1)  The following acts constitute grounds for which

27  the disciplinary actions in subsection (2) may be taken:

28         (a)  Violating any provision of this part chapter.

29         (c)  Failing to pay the fees required by this part

30  chapter.

31

                                  49

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (d)  Failing to remit the required amounts to any trust

  2  fund required by this part chapter.

  3         (e)  Attempting to procure, or procuring, by bribery,

  4  material misstatement, or fraudulent misrepresentation, a

  5  license to operate a cemetery company, a certificate of

  6  authority, or any other license or registration authorized by

  7  this part chapter.

  8         (f)  Having a license to operate a cemetery company, a

  9  certificate of authority to sell preneed contracts, or a

10  registration to undertake any other activity which is

11  regulated by this part chapter revoked, suspended, or

12  otherwise acted against, including having a license denied, by

13  the licensing authority of another jurisdiction.

14         (g)  Being convicted or found guilty in any

15  jurisdiction, regardless of adjudication, of a crime which

16  directly relates to the operation of a cemetery, the sale of

17  preneed contracts, or any other activity authorized by this

18  part chapter.

19         (h)  Making or filing a report required by this part

20  chapter which the licensee, certificateholder, or registrant

21  knows to be false or willfully failing to make or file a

22  report required by this part chapter.

23         (i)  Fraud, deceit, misrepresentation, incompetency, or

24  misconduct in the operation of a cemetery, the sale of preneed

25  contracts, or any other activity authorized by this part

26  chapter.

27         (j)  Negligence in the operation of a cemetery, the

28  sale of preneed contracts, or any other activity authorized by

29  this part chapter.

30         (w)  Refusal to produce records in connection with any

31  activity regulated pursuant to this part chapter.

                                  50

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (5)(a)  A suspension or revocation of a license shall

  2  be by order of the board. A person whose license has been

  3  suspended or revoked may not solicit or write any new preneed

  4  contracts regulated by this part chapter in this state during

  5  the period of any such suspension or revocation.

  6         (c)  During the period of suspension, the person whose

  7  license has been suspended shall file the annual statement and

  8  pay license fees as required under this part chapter as if the

  9  license had continued in full force.

10         (d)  Upon expiration of the suspension period, if

11  within such period the license has not otherwise terminated,

12  the suspended license shall automatically be reinstated unless

13  the board finds that the causes of the suspension have not

14  been resolved or that such person is otherwise not in

15  compliance with the requirements of this part chapter. If not

16  reinstated automatically, the license shall be deemed to have

17  expired as of the end of the suspension period or upon the

18  failure of the licensee to continue the license during the

19  suspension period, whichever event occurs first.

20         Section 44.  Subsections (2), (3), and (4) of section

21  497.237, Florida Statutes, are amended to read:

22         497.237  Care and maintenance trust fund; remedy of

23  department for noncompliance.--

24         (2)  The cemetery company may appoint a person to

25  advise the trustee in the investment of the trust fund.  The

26  board must approve the appointment of the initial trustee, and

27  any subsequent changes of the trustee shall also be approved

28  by the board.  If a cemetery company refuses or otherwise

29  fails to provide or maintain an adequate care and maintenance

30  trust fund in accordance with the provisions of this part

31  chapter, the board, after reasonable notice, shall enforce

                                  51

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  compliance. However, a nonprofit cemetery corporation which

  2  has been incorporated and engaged in the cemetery business

  3  prior to and continuously since 1915 and which has current

  4  trust assets exceeding $2 million is not required to designate

  5  a corporate trustee.  The trust fund agreement shall specify

  6  the following: the name, location, and address of both the

  7  licensee and the trustee, showing the date of agreement,

  8  together with the percentages required to be deposited

  9  pursuant to this part chapter.

10         (3)  No person may withdraw or transfer any portion of

11  the corpus of the care and maintenance trust fund without

12  first obtaining written consent from the board.  Funds

13  deposited pursuant to this part chapter may not be loaned to

14  any cemetery company or person who is directly or indirectly

15  engaged in the burial, funeral home, or cemetery business.

16         (4)  The trustee of the trust established pursuant to

17  this section may only invest in investments as prescribed in

18  s. 497.417.  The trustee shall take title to the property

19  conveyed to the trust for the purposes of investing,

20  protecting, and conserving it for the cemetery company;

21  collecting income; and distributing the principal and income

22  as prescribed in this part chapter.  The cemetery company is

23  prohibited from sharing in the discharge of the trustee's

24  responsibilities under this subsection, except that the

25  cemetery company may request the trustee to invest in tax-free

26  investments.

27         Section 45.  Subsection (4) of section 497.245, Florida

28  Statutes, is amended to read:

29         497.245  Care and maintenance trust fund, percentage of

30  payments for burial rights to be deposited.--

31

                                  52

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (4)  When a cemetery which is exempt from the

  2  provisions of this part chapter changes ownership so as to

  3  lose its exempt status, it shall establish and maintain a care

  4  and maintenance trust fund pursuant to this part chapter.  The

  5  initial deposit for establishment of this trust fund shall be

  6  $25 per space for all spaces either previously sold or

  7  contracted for sale in the cemetery at the time of conversion

  8  or $50,000, whichever is greater.

  9         Section 46.  Paragraph (c) of subsection (3) and

10  subsection (4) of section 497.253, Florida Statutes, 1998

11  Supplement, are amended to read:

12         497.253  Minimum acreage; sale or disposition of

13  cemetery lands.--

14         (3)

15         (c)  If the property in question has been used for the

16  permanent interment of human remains, the department shall

17  approve the application, in writing, if it finds that it would

18  not be contrary to the public interest. In determining whether

19  to approve the application, the department shall consider any

20  evidence presented concerning the following:

21         1.  The historical significance of the subject

22  property, if any.

23         2.  The archaeological significance of the subject

24  property, if any.

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

26  proposed use of the subject property.

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

28  subject property upon the inventory of remaining cemetery

29  facilities in the community and upon the other factors

30  enumerated in s. 497.201(3).

31

                                  53

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2  subject property upon the reasonable expectations of the

  3  families of the deceased regarding whether the cemetery

  4  property was to remain as a cemetery in perpetuity.

  5         6.  Whether any living relatives of the deceased

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

  7  the conversion of the subject property to noncemetery uses.

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

  9  subject property.

10         8.  Any other factor enumerated in this part chapter

11  that the department considers relevant to the public interest.

12         (4)  A licensee may convey and transfer to a

13  municipality or county its real and personal property,

14  together with moneys deposited in trust funds pursuant to this

15  part chapter, provided the municipality or county will accept

16  responsibility for maintenance thereof and prior written

17  approval of the department is obtained.

18         Section 47.  Subsections (2) and (7) of section

19  497.257, Florida Statutes, 1998 Supplement, are amended to

20  read:

21         497.257  Construction of mausoleums, columbaria, and

22  belowground crypts; preconstruction trust fund; compliance

23  requirement.--

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

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

26  belowground crypts prior to construction shall establish a

27  preconstruction trust fund by written instrument.  The

28  preconstruction trust fund shall be administered by a

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

30  The preconstruction trust fund shall be separate from any

31  other trust funds that may be required by this part chapter.

                                  54

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

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

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

  4  established by the board pursuant to this part chapter for the

  5  preceding calendar year.

  6         Section 48.  Section 497.301, Florida Statutes, is

  7  amended to read:

  8         497.301  Toll-free telephone number for

  9  complaints.--The department shall establish and operate a

10  toll-free telephone hotline to receive complaints and provide

11  information relating to the regulation under this part

12  chapter.

13         Section 49.  Subsection (3) of section 497.309, Florida

14  Statutes, is amended to read:

15         497.309  Records.--

16         (3)  The board may prescribe the minimum information to

17  be shown in the books, accounts, records, and documents of a

18  cemetery company to enable the department to determine the

19  company's compliance with this part chapter.

20         Section 50.  Subsection (3) of section 497.329, Florida

21  Statutes, is amended to read:

22         497.329  Registration of brokers of burial rights.--

23         (3)  This section shall not apply to persons otherwise

24  licensed or registered pursuant to this part chapter.

25         Section 51.  Subsection (1) and paragraph (a) of

26  subsection (2) of section 497.337, Florida Statutes, are

27  amended to read:

28         497.337  Prohibition on sale of personal property or

29  services.--

30         (1)  This section applies to all cemetery companies

31  licensed pursuant to this part chapter that offer for sale or

                                  55

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  sell personal property or services which may be used in a

  2  cemetery in connection with the burial of human remains or the

  3  commemoration of the memory of a deceased human being and also

  4  to any person in direct written contractual relationship with

  5  licensed cemetery companies.

  6         (2)(a)  Except as otherwise provided in this part

  7  chapter, no cemetery company shall directly or indirectly

  8  enter into a contract for the sale of personal property or

  9  services, excluding burial or interment rights, which may be

10  used in a cemetery in connection with disposing of human

11  remains, or commemorating the memory of a deceased human

12  being, if delivery of the personal property or performance of

13  the service is to be made more than 120 days after receipt of

14  final payment under the contract of sale, except as provided

15  in s. 497.417.  This shall include, but not be limited to, the

16  sale for future delivery of burial vaults, grave liners, urns,

17  memorials, vases, foundations, memorial bases, and similar

18  merchandise and related services commonly sold or used in

19  cemeteries and interment fees but excluding burial or

20  interment rights.

21         Section 52.  Subsection (2) of section 497.353, Florida

22  Statutes, is amended to read:

23         497.353  Owners to provide addresses; presumption of

24  abandonment; abandonment procedures; sale of abandoned unused

25  burial rights.--

26         (2)  There is hereby created a presumption that burial

27  rights in any cemetery licensed under this part chapter have

28  been abandoned when an owner of unused burial rights has

29  failed to provide the cemetery with a current residence

30  address for a period of 50 consecutive years and the cemetery

31  is unable to communicate by certified letter with said owner

                                  56

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  of unused burial rights for lack of address.  No such

  2  presumption of abandonment shall exist for burial rights held

  3  in common ownership which are adjoining, whether in a grave

  4  space, plot, mausoleum, columbarium, or other place of

  5  interment, if any such burial rights have been used within

  6  such common ownership.

  7         Section 53.  Subsection (1) of section 497.357, Florida

  8  Statutes, is amended to read:

  9         497.357  Report of identification of exempt

10  cemeteries.--

11         (1)  All cemeteries in excess of 5 acres located in

12  this state that are exempt from the provisions of this part

13  chapter shall be required to file a report of identification

14  with the department and pay a $25 fee.  The department shall

15  maintain such reports as public records.  Such report of

16  identification shall be refiled every 5 years pursuant to a

17  schedule set by board rule.  Solely for purposes of chapter

18  120, such report of identification shall be considered a

19  registration with the department.

20         Section 54.  Subsection (5) of section 497.361, Florida

21  Statutes, is amended to read:

22         497.361  Registration of monument establishments.--

23         (5)  Monuments shall be delivered as established by

24  this part chapter and installed no later than 120 days after

25  the date of sale. The establishment may request two 30-day

26  extensions. Extensions may be granted by the executive

27  director.

28         Section 55.  Section 497.401, Florida Statutes, is

29  amended to read:

30         497.401  Preneed sales; part chapter exclusive;

31  applicability of other laws.--Except as provided in this part

                                  57

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  chapter, preneed funeral merchandise or service contract

  2  businesses and preneed burial merchandise or service contract

  3  businesses shall be governed by this part chapter and shall be

  4  exempt from all provisions of the Florida Insurance Code.

  5         Section 56.  Section 497.403, Florida Statutes, is

  6  amended to read:

  7         497.403  Insurance business not authorized.--Nothing in

  8  the Florida Insurance Code or this part chapter shall be

  9  deemed to authorize any preneed funeral merchandise or service

10  contract business or any preneed burial merchandise or service

11  business to transact any insurance business, other than that

12  of preneed funeral merchandise or service insurance or preneed

13  burial merchandise or service insurance, or otherwise to

14  engage in any other type of insurance unless it is authorized

15  under a certificate of authority issued by the Department of

16  Insurance under the provisions of the Florida Insurance Code.

17  Any insurance business transacted under this section must

18  comply with the provisions of s. 626.785.

19         Section 57.  Paragraph (b) of subsection (1), paragraph

20  (c) of subsection (2), and subsection (3) of section 497.405,

21  Florida Statutes, are amended to read:

22         497.405  Certificate of authority required.--

23         (1)

24         (b)  No person, including any cemetery exempt under s.

25  497.003, may sell services, merchandise, or burial rights on a

26  preneed basis unless such person is authorized pursuant to

27  this part chapter to provide such services, merchandise, or

28  burial rights on an at-need basis.

29         (2)

30         (c)  The provisions of paragraph (a) do not apply to

31  any Florida corporation existing under chapter 607 acting as a

                                  58

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  servicing agent hereunder in which the stock of such

  2  corporation is held by 100 or more persons licensed pursuant

  3  to chapter 470, provided no one stockholder holds, owns,

  4  votes, or has proxies for more than 5 percent of the issued

  5  stock of such corporation; provided the corporation has a

  6  blanket fidelity bond, covering all employees handling the

  7  funds, in the amount of $50,000 or more issued by a licensed

  8  insurance carrier in this state; and provided the corporation

  9  processes the funds directly to and from the trustee within

10  the applicable time limits set forth in this part chapter.

11  The department may require any person claiming that the

12  provisions of this paragraph exempt it from the provisions of

13  paragraph (a) to demonstrate to the satisfaction of the

14  department that it meets the requirements of this paragraph.

15         (3)  No person may obtain a certificate of authority

16  under this part chapter for the preneed sale of services

17  unless such person or its agent, in the case of a corporate

18  entity, holds a license as a funeral establishment or cemetery

19  company or registration as a direct disposal establishment

20  under chapter 470.

21         Section 58.  Paragraphs (c) and (d) of subsection (2)

22  and subsections (4), (5), (7), (8), (9), (11), and (12) of

23  section 497.407, Florida Statutes, are amended to read:

24         497.407  Certificate of authority; annual statement;

25  renewal; transfer.--

26         (2)  The statement shall include the following:

27         (c)  Evidence that the person offering the statement:

28         1.  Has the ability to discharge her or his liabilities

29  as they become due in the normal course of business and has

30  sufficient funds available during the calendar year to perform

31  her or his obligations under her or his contract;

                                  59

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         2.  Has complied with the trust requirements for the

  2  funds received under contracts issued by herself or himself as

  3  hereinafter described;

  4         3.  Has disbursed interest, dividends, or accretions

  5  earned by trust funds, in accordance with this part chapter

  6  and rules promulgated thereunder; and

  7         4.  Has complied with this part chapter and any rules

  8  of the board and the department.

  9         (d)  Any other information considered necessary by the

10  board to meet its responsibilities under this part chapter.

11         (4)  The fee payable to the department for issuance of

12  the original certificate of authority and each annual renewal

13  thereof shall be set by the board at an amount not to exceed

14  $500 and shall accompany each application for an original

15  certificate and, thereafter, each annual statement.  Any

16  person or entity that is part of a common business enterprise

17  that has a certificate of authority issued pursuant to this

18  section and elects to operate under a name other than that of

19  the common business enterprise shall submit an application on

20  a form adopted by the board to become a branch registrant.

21  Upon the approval of the board that such entity qualifies to

22  sell preneed contracts under this part chapter except for the

23  requirements of subparagraph (2)(c)1. and if the

24  certificateholder meets the requirements of such subparagraph,

25  a branch registration shall be issued.  Each branch registrant

26  may operate under the certificate of authority of the common

27  business enterprise upon the payment of a fee established by

28  the board not to exceed $100 accompanying the application on

29  April 1 annually. The fee shall be payable to the Regulatory

30  Trust Fund under the Division of Finance.

31

                                  60

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (5)  Upon the board being satisfied that the statement

  2  and matters which may accompany it meet the requirements of

  3  this parts chapter and of its rules, it shall issue or renew

  4  the certificate of authority if upon investigation by the

  5  board it appears that the principals, including directors,

  6  officers, stockholders, employees, and agents of such person,

  7  are of good moral character and have reputations for fair

  8  dealing in business matters.

  9         (7)  An application for an initial certificate of

10  authority or for the annual renewal of the certificate shall

11  disclose the existence of all preneed contracts for service or

12  merchandise funded by any method other than a method permitted

13  by this part chapter, which contracts are known to the

14  applicant and name the applicant or her or his business as the

15  beneficiary upon the death of the purchaser of the preneed

16  contract.  Such disclosure shall include the name and address

17  of the contract purchaser, the name and address of the

18  institution where such funds are deposited, and the number

19  used by the institution to identify the account.  With respect

20  to contracts entered into before January 1, 1983, the board

21  may not deny or refuse to renew a certificate of authority

22  solely on the basis of such disclosure.  The board may not

23  require the purchaser of any such contract to liquidate the

24  account if such account was established before July 1, 1965.

25  The board may use the information disclosed to notify the

26  contract purchaser and the institution in which such funds are

27  deposited should the holder of a certificate of authority be

28  unable to fulfill the requirements of the contract.

29         (8)  On or before April 1 of each year, the

30  certificateholder shall file with the board in the form

31  prescribed by the board a full and true statement as to the

                                  61

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  activities of any trust established by it pursuant to this

  2  part chapter for the preceding calendar year.

  3         (9)  In addition to any other penalty that may be

  4  provided for under this part chapter, the board may levy a

  5  fine not to exceed $50 a day for each day the

  6  certificateholder fails to file its annual statement, and the

  7  board may levy a fine not to exceed $50 a day for each day the

  8  certificateholder fails to file the statement of activities of

  9  the trust.  Upon notice to the certificateholder by the board

10  that the certificateholder has failed to file the annual

11  statement or the statement of activities of the trust, the

12  certificateholder's authority to sell preneed contracts shall

13  cease while such default continues.  The board shall deposit

14  all sums collected under this section to the credit of the

15  Regulatory Trust Fund under the Division of Finance.

16         (11)  The board may authorize the transfer of

17  certificates of authority and establish fees for the transfer

18  in an amount not to exceed $100. Upon receipt of an

19  application for transfer, the executive director may grant a

20  temporary certificate of authority to the proposed transferee,

21  based upon criteria established by the board by rule, which

22  criteria shall promote the purposes of this part chapter in

23  protecting the consumer.  Such a temporary certificate of

24  authority shall expire at the conclusion of the next regular

25  meeting of the board unless renewed by the board.

26         (12)  Each certificateholder shall pay to the

27  Regulatory Trust Fund under the Division of Finance an amount

28  established by the board not to exceed $5 for each preneed

29  contract entered into. This amount must be paid within 60 days

30  after the end of each quarter. These funds must be used to

31

                                  62

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  defray the cost of the board and the department in

  2  administering the provisions of this part chapter.

  3         Section 59.  Subsections (3), (5), (6), (7), (8), and

  4  (11) of section 497.413, Florida Statutes, are amended to

  5  read:

  6         497.413  Preneed Funeral Contract Consumer Protection

  7  Trust Fund.--

  8         (3)  In addition to the amounts specified in subsection

  9  (2), each remittance shall contain such other additional

10  information as needed by the board to carry out its

11  responsibilities under this part chapter and as prescribed by

12  rule of the board.

13         (5)  The amounts remitted for deposit into the Preneed

14  Funeral Contract Consumer Protection Trust Fund shall not be

15  deemed proceeds from the sale of a preneed contract within the

16  meaning of this part chapter.

17         (6)  Upon the commencement of a delinquency proceeding

18  pursuant to this part chapter against a certificateholder, the

19  board may use up to 50 percent of the balance of the trust

20  fund not already committed to a prior delinquency proceeding

21  solely for the purpose of providing restitution to preneed

22  contract purchasers and their estates due to a

23  certificateholder's failure to provide the benefits of a

24  preneed contract or failure to refund the appropriate

25  principal amount by reason of cancellation thereof.  The

26  balance of the trust fund shall be determined as of the date

27  of the delinquency proceeding.

28         (7)  In any situation in which a delinquency proceeding

29  has not commenced, the board may, in its discretion, use the

30  trust fund for the purpose of providing restitution to any

31  consumer, owner, or beneficiary of a preneed contract or

                                  63

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  similar regulated arrangement under this part chapter entered

  2  into after June 30, 1977.  If, after investigation, the board

  3  determines that a certificateholder has breached a preneed

  4  contract by failing to provide benefits or an appropriate

  5  refund, or that a provider, who is a former certificateholder

  6  or an establishment which has been regulated under this part

  7  chapter or chapter 470, has sold a preneed contract and has

  8  failed to fulfill the arrangement or provide the appropriate

  9  refund, and such certificateholder or provider does not

10  provide or does not possess adequate funds to provide

11  appropriate refunds, payments from the trust fund may be

12  authorized by the board. In considering whether payments shall

13  be made or when considering who will be responsible for such

14  payments, the board shall consider whether the

15  certificateholder or previous provider has been acquired by a

16  successor who is or should be responsible for the liabilities

17  of the defaulting entity. With respect to preneed contracts

18  funded by life insurance, payments from the fund shall be

19  made: if the insurer is insolvent, but only to the extent that

20  funds are not available through the liquidation proceeding of

21  the insurer; or if the certificateholder is unable to perform

22  under the contract and the insurance proceeds are not

23  sufficient to cover the cost of the merchandise and services

24  contracted for. In no event shall the board approve payments

25  in excess of the insurance policy limits unless it determines

26  that at the time of sale of the preneed contract, the

27  insurance policy would have paid for the services and

28  merchandise contracted for.  Such monetary relief shall be in

29  an amount as the board may determine and shall be payable in

30  such manner and upon such conditions and terms as the board

31  may prescribe.  However, with respect to preneed contracts to

                                  64

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  be funded pursuant to s. 497.417, s. 497.419, s. 497.423, or

  2  s. 497.425, any restitution made pursuant to this subsection

  3  shall not exceed, as to any single contract or arrangement,

  4  the lesser of the gross amount paid under the contract or 4

  5  percent of the uncommitted assets of the trust fund.  With

  6  respect to preneed contracts funded by life insurance

  7  policies, any restitution shall not exceed, as to any single

  8  contract or arrangement, the lesser of the face amount of the

  9  policy, the actual cost of the arrangement contracted for, or

10  4 percent of the uncommitted assets of the trust fund. The

11  total of all restitutions made to all applicants under this

12  subsection in a single fiscal year shall not exceed the

13  greater of 30 percent of the uncommitted assets of the trust

14  fund as of the end of the most recent fiscal year or $120,000.

15  The department may use moneys in the trust fund to contract

16  with independent vendors pursuant to chapter 287 to administer

17  the requirements of this subsection.

18         (8)  All moneys deposited in the Preneed Funeral

19  Contract Consumer Protection Trust Fund together with all

20  accumulated income shall be used only for the purposes

21  expressed in this section and shall not be subject to any

22  liens, charges, judgments, garnishments, or other creditor's

23  claims against the certificateholder, any trustee utilized by

24  the certificateholder, any company providing a surety bond as

25  specified in this part chapter, or any purchaser of a preneed

26  contract.  No preneed contract purchaser shall have any vested

27  rights in the trust fund.

28         (11)  No person shall make, publish, disseminate,

29  circulate, or place before the public, or cause, directly or

30  indirectly, to be made, published, disseminated, circulated,

31  or placed before the public, in a newspaper, magazine, or

                                  65

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  other publication, or in the form of a notice, circular,

  2  pamphlet, letter, or poster, or over any radio station or

  3  television station, or in any other way, any advertisement,

  4  announcement, or statement which uses the existence of the

  5  Preneed Funeral Contract Consumer Protection Trust Fund for

  6  the purpose of sales, solicitation, or inducement to purchase

  7  any form of preneed contract covered under this part chapter.

  8         Section 60.  Section 497.415, Florida Statutes, is

  9  amended to read:

10         497.415  Ownership of proceeds received on contracts.--

11         (1)  Subject to the provisions of this part chapter,

12  all funds paid pursuant to a preneed contract by a purchaser

13  to a certificateholder shall be the sole property of, and

14  within the full dominion and control of, said

15  certificateholder.

16         (2)  Subject to the provisions of this part chapter,

17  the relationship between the purchaser of a preneed contract

18  and a certificateholder shall be deemed for all purposes as a

19  debtor-creditor relationship.

20         Section 61.  Subsections (1), (3), and (5) and

21  paragraph (c) of subsection (4) of section 497.417, Florida

22  Statutes, 1998 Supplement, are amended to read:

23         497.417  Disposition of proceeds received on

24  contracts.--

25         (1)  Any person who is paid, collects, or receives

26  funds under a preneed contract for funeral services or

27  merchandise or burial services or merchandise shall deposit in

28  this state an amount at least equal to the sum of 70 percent

29  of the purchase price collected for all services sold and

30  facilities rented; 100 percent of the purchase price collected

31  for all cash advance items sold; and 30 percent of the

                                  66

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  purchase price collected or 110 percent of the wholesale cost,

  2  whichever is greater, for each item of merchandise sold. The

  3  method of determining wholesale cost shall be established by

  4  rule of the board and shall be based upon the

  5  certificateholder's stated wholesale cost for the 12-month

  6  period beginning July 1 during which the initial deposit to

  7  the preneed trust fund for the preneed contract is made.  Such

  8  deposits shall be made within 30 days after the end of the

  9  calendar month in which payment is received, under the terms

10  of a revocable trust instrument entered into with a national

11  or state bank or savings and loan association having trust

12  powers or a trust company.  The trustee shall take title to

13  the property conveyed to the trust for the purpose of

14  investing, protecting, and conserving it for the

15  certificateholder; collecting income; and distributing the

16  principal and income as prescribed in this part chapter.  The

17  certificateholder is prohibited from sharing in the discharge

18  of these responsibilities, except that the certificateholder

19  may request the trustee to invest in tax-free investments and

20  may appoint an adviser to the trustee. The trust agreement

21  shall be submitted to the board for approval and filing.  The

22  funds shall be held in trust, both as to principal and income

23  earned thereon, and shall remain intact, except that the cost

24  of the operation of the trust or trust account authorized by

25  this section may be deducted from the income earned thereon.

26  The contract purchaser shall have no interest whatsoever in,

27  or power whatsoever over, funds deposited in trust pursuant to

28  this section.  In no event may said funds be loaned to a

29  certificateholder, an affiliate of a certificateholder, or any

30  person directly or indirectly engaged in the burial, funeral

31  home, or cemetery business. Furthermore, the

                                  67

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  certificateholder's interest in said trust shall not be

  2  pledged as collateral for any loans, debts, or liabilities of

  3  the certificateholder and shall not be transferred to any

  4  person without the prior written approval from the department

  5  and the trustee which shall not be unreasonably withheld.

  6  Even though the certificateholder shall be deemed and treated

  7  as the settlor and beneficiary of said trust for all purposes,

  8  all of said trust funds are exempt from all claims of

  9  creditors of the certificateholder except as to the claims of

10  the contract purchaser, her or his representative, the board,

11  or the department.

12         (3)  The trustee shall make regular valuations of

13  assets it holds in trust and provide a report of such

14  valuations to the certificateholder at least quarterly.  Any

15  person who withdraws appreciation in the value of trust, other

16  than the pro rata portion of such appreciation which may be

17  withdrawn upon the death of a contract beneficiary or upon

18  cancellation of a preneed contract, shall be required to make

19  additional deposits from her or his own funds to restore the

20  aggregate value of assets to the value of funds deposited in

21  trust, but excluding from the funds deposited those funds paid

22  out upon preneed contracts which such person has fully

23  performed or which have been otherwise withdrawn, as provided

24  for in this part chapter. The certificateholder shall be

25  liable to third parties to the extent that income from the

26  trust is not sufficient to pay the expenses of the trust.

27         (4)  The trustee of the trust established pursuant to

28  this section shall only have the power to:

29         (c)  Commingle the property of the trust with the

30  property of any other trust established pursuant to this part

31

                                  68

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  chapter and make corresponding allocations and divisions of

  2  assets, liabilities, income, and expenses.

  3         (5)  The certificateholder, at her or his election,

  4  shall have the right and power, at any time, to revest in it

  5  title to the trust assets, or its pro rata share thereof,

  6  provided it has complied with s. 497.423 or s. 497.425.

  7  Notwithstanding anything contained in this part chapter to the

  8  contrary, the certificateholder, via its election to sell or

  9  offer for sale preneed contracts subject to this section,

10  shall represent and warrant, and is hereby deemed to have done

11  such, to all federal and Florida taxing authorities, as well

12  as to all potential and actual preneed contract purchasers,

13  that s. 497.423 or s. 497.425 is a viable option available to

14  it at any and all relevant times.  If in the

15  certificateholder's opinion it does not have the ability to

16  select the financial responsibility alternative of s. 497.423

17  or s. 497.425, then it shall not have the right to sell or

18  solicit contracts pursuant to this section.

19         Section 62.  Subsection (9) of section 497.419, Florida

20  Statutes, is amended to read:

21         497.419  Cancellation of, or default on, preneed

22  contracts.--

23         (9)  Persons who purchase merchandise or burial rights

24  pursuant to this part chapter shall have the right to sell,

25  alienate, or otherwise transfer the merchandise or burial

26  rights subject to and in accordance with rules adopted by the

27  board.

28         Section 63.  Paragraph (b) of subsection (10) of

29  section 497.423, Florida Statutes, is amended to read:

30         497.423  Evidence of financial responsibility as

31  alternative to trust deposit.--

                                  69

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         (10)  Every certificateholder electing to be governed

  2  by this section shall have its financial statements, submitted

  3  to the department pursuant to s. 497.407, audited by an

  4  independent public accountant certified pursuant to chapter

  5  473.  The financial statements shall contain, in accordance

  6  with generally accepted accounting principles, for two or more

  7  consecutive annual periods, the following:

  8         (b)  Notes to the financial statements considered

  9  customary or necessary for full disclosure and adequate

10  understanding of the financial statements, financial

11  condition, and operation of the certificateholder.  The notes

12  shall include a schedule, based upon statutory accounting

13  principles, indicating that the certificateholder which has

14  held a certificate pursuant to this part chapter for less than

15  10 years has a current ratio of no less than 3 to 1 of current

16  assets to current liabilities and net assets of at least

17  $600,000 or that the certificateholder which has held a

18  certificate pursuant to this part chapter for 10 years or more

19  has a current ratio of no less than 2 to 1 of current assets

20  to current liabilities and net assets of at least $400,000.

21         Section 64.  Section 497.427, Florida Statutes, is

22  amended to read:

23         497.427  Existing merchandise trust funds; proof of

24  compliance with law.--The certificateholder shall present to

25  the board prior to the implementation of the alternatives

26  provided in s. 497.425 documentation which demonstrates that

27  the existing merchandise trust fund complies with the law and

28  that the elected alternative plan conforms to the requirements

29  of this part chapter.

30

31

                                  70

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         Section 65.  Subsections (1) and (2) of section

  2  497.429, Florida Statutes, 1998 Supplement, are amended to

  3  read:

  4         497.429  Alternative preneed contracts.--

  5         (1)  Nothing in this part chapter shall prevent the

  6  purchaser and the certificateholder from executing a preneed

  7  contract upon the terms stated in this section.  Such

  8  contracts shall be subject to all provisions of this part

  9  chapter except:

10         (a)  Section 497.409(2).

11         (b)  Section 497.415.

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

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

14         (e)  Section 497.421.

15         (f)  Section 497.423.

16         (g)  Section 497.425.

17         (2)  The contract must require that a trust be

18  established by the certificateholder on behalf of, and for the

19  use, benefit, and protection of, the purchaser and that the

20  trustee must be a national or state bank or savings and loan

21  association having trust powers or a trust company with the

22  same powers of investment as provided elsewhere in this part

23  chapter.

24         Section 66.  Section 497.431, Florida Statutes, is

25  amended to read:

26         497.431  Examinations and investigations.--The

27  department shall, as often as it may deem necessary but at

28  least once every 3 years, examine the business of any person

29  writing preneed contracts and any guaranteeing organization

30  existing under this part chapter to the extent applicable.

31  The examination shall be at the expense of the person or

                                  71

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  organization examined as provided in this section and shall be

  2  made by the designated representative or examiner of the

  3  department. The written report of each such examination, when

  4  completed, shall be filed in the office of the board and, when

  5  so filed, shall constitute a public record. Any such person or

  6  organization being examined shall produce, upon request, all

  7  records of the company or organization. The designated

  8  representative of the board may at any time examine the

  9  records and affairs of any such person or organization,

10  whether in connection with a formal examination or not.  The

11  board may waive the examination requirements of this section

12  if the certificateholder or guaranteeing organization submits

13  audited financial statements.  The department may charge an

14  examination fee prescribed by rule, but such fee may not

15  exceed $300 per 8-hour day for each examiner.  Such

16  examination fee shall be calculated on an hourly basis and

17  shall be rounded to the nearest hour.  For out-of-state

18  travel, the licensee shall also pay the travel expense and per

19  diem subsistence allowance provided for state employees under

20  s. 112.061. The department shall be entitled to recover the

21  reasonable and justifiable costs of investigation if the

22  investigation results in judicial or administrative

23  disciplinary action.

24         Section 67.  Subsection (1) of section 497.435, Florida

25  Statutes, is amended to read:

26         497.435  Administrative fine in lieu of revocation or

27  suspension of certificate of authority.--

28         (1)  If the board finds that one or more grounds exist

29  for the discretionary suspension or revocation of a

30  certificate of authority issued under this part chapter, it

31  may, in lieu of such suspension or revocation, impose a fine

                                  72

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  upon the certificateholder in an amount not to exceed $1,000

  2  for each nonwillful violation and in an amount not to exceed

  3  $10,000 for each willful violation.

  4         Section 68.  Subsections (1) and (3), paragraph (c) of

  5  subsection (6), and paragraph (d) of subsection (7) of section

  6  497.439, Florida Statutes, are amended to read:

  7         497.439  Preneed sales agents.--

  8         (1)  All individuals who offer preneed contracts to the

  9  public, or who execute preneed contracts on behalf of a

10  certificateholder, including all individuals who offer, sell,

11  or sign contracts for the preneed sale of burial rights, shall

12  be registered with the board as preneed sales agents, pursuant

13  to this section, unless such individuals are licensed as

14  funeral directors pursuant to this part chapter.

15         (3)  A certificateholder shall be responsible for the

16  activities of all preneed sales agents and all funeral

17  directors acting as preneed sales agents, who are affiliated

18  with the certificateholder and who perform any type of

19  preneed-related activity on behalf of the certificateholder.

20  In addition to the preneed sales agents and funeral directors

21  acting as preneed sales agents, each certificateholder shall

22  also be subject to discipline if its preneed sales agents or

23  funeral directors acting as preneed sales agents violate any

24  provision of this part chapter.

25         (6)  The qualifications for a preneed sales agent are

26  as follows:

27         (c)  The applicant must not have any felony or

28  misdemeanor convictions that relate to any activity regulated

29  by this part chapter.

30         (7)  An application for registration as a preneed sales

31  agent shall be submitted to the department with an application

                                  73

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  fee of $100 by certified mail, return receipt requested, by

  2  the certificateholder on a form that has been approved by the

  3  board and shall contain, at a minimum, the following:

  4         (d)  A representation, signed by the certificateholder,

  5  that the applicant is authorized to offer, sell, and sign

  6  preneed contracts on behalf of the certificateholder, and that

  7  the certificateholder has trained the applicant in the

  8  provisions of this part chapter relating to preneed sales as

  9  determined by the board, the provisions of the

10  certificateholder's preneed contract, and the nature of the

11  merchandise, services, or burial rights sold by the

12  certificateholder.

13         Section 69.  Section 497.441, Florida Statutes, is

14  amended to read:

15         497.441  Acceptability of funeral and burial

16  merchandise.--Each person who engages in preneed sales of

17  funeral or burial merchandise shall determine, and notify the

18  purchaser in writing prior to the completion of the contract,

19  that the merchandise being considered for purchase will be

20  accepted in the cemetery of the purchaser's choice.  The

21  failure to comply with this part chapter shall nullify the

22  agreement, and all moneys paid in shall be returned,

23  notwithstanding the existence of any liquidated damages

24  provision pursuant to s. 497.419(2).

25         Section 70.  Section 497.443, Florida Statutes, is

26  amended to read:

27         497.443  Unfair methods of competition and unfair or

28  deceptive acts or practices prohibited.--No person shall

29  engage in this state in any trade practice which is defined in

30  this part chapter as, or determined pursuant to s. 497.445 to

31

                                  74

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  be, an unfair method of competition or an unfair or deceptive

  2  act or practice.

  3         Section 71.  Subsections (1) and (3) of section

  4  497.447, Florida Statutes, are amended to read:

  5         497.447  Prohibited practices; hearings, witnesses,

  6  appearances, production of books, and service of process.--

  7         (1)  Whenever the board has reason to believe that any

  8  person has engaged, or is engaging, in this state in any

  9  unfair method of competition or any unfair or deceptive act or

10  practice as defined in s. 497.445, or is engaging in the sale

11  of preneed contracts without being properly licensed as

12  required by this part chapter, and that a proceeding by the

13  board in respect thereto would be in the interest of the

14  public, the board shall conduct or cause to have conducted a

15  hearing in accordance with chapter 120.

16         (3)  A statement of charges, notice, or order or other

17  process under this part chapter may be served by anyone duly

18  authorized by the department, either in the manner provided by

19  law for service of process in civil actions or by certifying

20  and mailing a copy thereof to the person affected by such

21  statement, notice, or order or other process at her or his or

22  its residence or principal office or place of business.  The

23  verified return by the person so serving such statement,

24  notice, or order or other process, setting forth the manner of

25  the service, shall be proof of the service; and the return

26  postcard receipt for such statement, notice, or order or other

27  process, certified and mailed as provided in this subsection,

28  shall be proof of service of the statement, notice, or order

29  or other process.

30         Section 72.  Section 497.515, Florida Statutes, is

31  amended to read:

                                  75

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         497.515  Additional prohibited acts.--In addition to

  2  the acts set forth elsewhere in this part chapter, the

  3  following acts are prohibited:

  4         (1)  Requiring lot owners or current customers to make

  5  unnecessary visits to the cemetery company office for the

  6  purpose of solicitation.

  7         (2)  Soliciting that overreaches and takes advantage of

  8  a customer's ignorance or emotional vulnerability.

  9         (3)  Failing to disclose all fees and costs the

10  customer may incur to use the burial rights or merchandise

11  purchased.

12         (4)  Failing to provide a detailed description on the

13  written contract of all burial merchandise purchased.

14         (5)  Failing to honor cancellations and issue refunds

15  as provided by s. 497.419.

16         (6)  Misrepresenting any burial merchandise or service

17  when offered for sale to the public.

18         (7)  Failing to obtain written authorization from the

19  family or next of kin of the deceased prior to disinterment,

20  disentombment, or disinurnment.

21         Section 73.  Subsection (1) of section 497.517, Florida

22  Statutes, is amended to read:

23         497.517  Attorney's fees.--

24         (1)  In any civil litigation resulting from a

25  transaction involving a violation of this part chapter, the

26  court may award to the prevailing party, after judgment in the

27  trial court and exhaustion of any appeal, reasonable

28  attorney's fees and costs from the nonprevailing party in an

29  amount to be determined by the trial court.

30         Section 74.  Section 497.519, Florida Statutes, is

31  amended to read:

                                  76

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1         497.519  Penalties.--Any officer or director, or person

  2  occupying similar status or performing similar functions, of a

  3  certificateholder which fails to make required deposits to any

  4  trust fund required by this part chapter; any director,

  5  officer, agent, or employee of a certificateholder who makes

  6  any unlawful withdrawal of funds from any such account or who

  7  knowingly discloses to the department or an employee thereof

  8  any false report made pursuant to this part chapter; or any

  9  person who willfully violates any of the provisions of this

10  part chapter commits a felony of the third degree, punishable

11  as provided in s. 775.082, s. 775.083, or s. 775.084.

12         Section 75.  Section 497.525, Florida Statutes, is

13  amended to read:

14         497.525  Disposition of fees and penalties.--All fees

15  and penalties collected pursuant to this part chapter shall be

16  deposited in the Regulatory Trust Fund of the department.

17         Section 76.  Section 497.529, Florida Statutes, is

18  amended to read:

19         497.529  Civil liability.--The provisions of this part

20  chapter are cumulative to rights under the general civil and

21  common law, and no action of the department may abrogate such

22  rights to damages or other relief in any court.

23         Section 77.  Section 497.531, Florida Statutes, is

24  amended to read:

25         497.531  Unauthorized arrangements.--

26         (1)  Any arrangement to provide merchandise or services

27  as defined in this part chapter, by which payment for such

28  merchandise or services is to be paid for through a financial

29  arrangement, other than as authorized pursuant to this part

30  chapter, in which the provider of the merchandise or services

31

                                  77

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  is a beneficiary, party, agent, or owner is in violation of

  2  this part chapter.

  3         (2)  Any person who provides merchandise or services

  4  and who knowingly becomes a beneficiary, agent, party, or

  5  coowner as described in subsection (1) is in violation of this

  6  part chapter.

  7         Section 78.  Paragraph (b) of subsection (1) of section

  8  501.022, Florida Statutes, is amended to read:

  9         501.022  Home solicitation sale; permit required.--

10         (1)

11         (b)  The following are excluded from the operation of

12  this section:

13         1.  Bona fide agents, business representatives, or

14  salespersons making calls or soliciting orders at the usual

15  place of business of a customer regarding products or services

16  for use in connection with the customer's business.

17         2.  Solicitors, salespersons, or agents making a call

18  or business visit upon the express invitation, oral or

19  written, of an inhabitant of the premises or her or his agent.

20         3.  Telephone solicitors, salespersons, or agents

21  making calls which involve transactions that are unsolicited

22  by the consumer and consummated by telephone and without any

23  other contact between the buyer and the seller or its

24  representative prior to delivery of the goods or performance

25  of the services.

26         4.  Solicitors, salespersons, or agents conducting a

27  sale, lease, or rental of consumer goods or services by

28  sample, catalog, or brochure for future delivery.

29         5.  Minors, as defined in s. 1.01(14), conducting home

30  solicitation sales under the supervision of an adult

31  supervisor who holds a valid home solicitation sale permit.

                                  78

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  Minors excluded from operation of this section must, however,

  2  carry personal identification which includes their full name,

  3  date of birth, residence address, and employer and the name

  4  and permit number of their adult supervisor.

  5         6.  Those sellers or their representatives that are

  6  currently regulated as to the sale of goods and services by

  7  chapter 470, chapter 475, or part I of chapter 497.

  8         7.  Solicitors, salespersons, or agents making calls or

  9  soliciting orders on behalf of a religious, charitable,

10  scientific, educational, or veterans' institution or

11  organization holding a sales tax exemption certificate under

12  s. 212.08(7)(a).

13         Section 79.  Subsection (15) of section 501.604,

14  Florida Statutes, is amended to read:

15         501.604  Exemptions.--The provisions of this part,

16  except s. 501.608, do not apply to:

17         (15)  A person who is licensed pursuant to chapter 470

18  or part I of chapter 497 and who is soliciting within the

19  scope of the license.

20         Section 80.  Paragraph (d) of subsection (1) of section

21  626.785, Florida Statutes, is amended to read:

22         626.785  Qualifications for license.--

23         (1)  The department shall not grant or issue a license

24  as life agent to any individual found by it to be

25  untrustworthy or incompetent, or who does not meet the

26  following qualifications:

27         (d)  Must not be a funeral director or direct disposer,

28  or an employee or representative thereof, or have an office

29  in, or in connection with, a funeral establishment, except

30  that a funeral establishment may contract with a life

31  insurance agent to sell a preneed contract as defined in part

                                  79

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






  1  I of chapter 497. Notwithstanding other provisions of this

  2  chapter, such insurance agent may sell limited policies of

  3  insurance covering the expense of final disposition or burial

  4  of an insured in an amount not to exceed $7,500.

  5         Section 81.  Subsection (3) of section 872.02, Florida

  6  Statutes, 1998 Supplement, is amended to read:

  7         872.02  Injuring or removing tomb or monument;

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

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

10  under the direction or authority of the Division of Historical

11  Resources of the Department of State, to cemeteries operating

12  under part I or part II of chapter 497, or to any person

13  otherwise authorized by law to remove or disturb a tomb,

14  monument, gravestone, burial mound, or similar structure, or

15  its contents, as described in subsection (1).

16         Section 82.  Subsection (1) of section 872.05, Florida

17  Statutes, is amended to read:

18         872.05  Unmarked human burials.--

19         (1)  LEGISLATIVE INTENT.--It is the intent of the

20  Legislature that all human burials and human skeletal remains

21  be accorded equal treatment and respect based upon common

22  human dignity without reference to ethnic origin, cultural

23  background, or religious affiliation.  This section applies to

24  all human burials, human skeletal remains, and associated

25  burial artifacts not otherwise protected under part I or part

26  II of chapter 497 or other state law and found upon or within

27  any public or private land in the state, including submerged

28  lands.

29         Section 83.  This act shall take effect July 1, 1999.

30

31

                                  80

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






    Florida House of Representatives - 1999                HB 1405

    537-274B-99






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

  2                          HOUSE SUMMARY

  3
      Creates part II of chapter 497, F.S., the "Neglected,
  4    Abandoned, and Unlicensed Cemetery Act." Provides
      legislative findings and intent. Provides for retention
  5    of status as a cemetery. Provides exemptions. Provides
      for applicability of specified provisions of part I.
  6    Provides for investigation and mediation. Provides
      conversion procedures. Requires licenses under part I for
  7    certain activities. Provides for care and maintenance.
      Provides for joint and severable liability. Provides for
  8    ingress and egress. Provides local government
      responsibilities. Provides procedures for declaring an
  9    unlicensed cemetery abandoned. Provides for declaration
      of an unlicensed cemetery as neglected. Provides for
10    private contracts. Requires a county registry of
      cemeteries. Requires surveyors to file a statement of
11    cemetery location under certain circumstances. Provides
      for citizen input in the county registry. Provides for
12    transfer of small cemeteries under certain circumstances.
      Provides rulemaking authority to the Department of
13    Banking and Finance to implement the act.

14
      Adds abandoned cemeteries to the term "historic property"
15    or "historic resource." Specifies responsibility of the
      Division of Historical Resources with respect to
16    identifying abandoned cemeteries and submitting grant
      applications for historic preservation purposes.
17    Specifies power of the Florida Communities Trust to give
      annual notice to city managers and county administrators
18    of available funding for maintenance of abandoned
      cemeteries. Provides for deposit of certain moneys into
19    the Florida Communities Trust Fund and specifying uses of
      such moneys. Requires the trust to prepare and submit
20    annually to the Board of Funeral and Cemetery Services a
      report on such moneys and their subsequent use. Provides
21    for deposit of certain punitive damages into the Florida
      Communities Trust Fund for specified purposes. Provides
22    for assessment of additional costs in cases involving
      criminal mischief and offenses concerning dead bodies and
23    graves. Provides for disposition of funds collected.

24
      Requires sellers of funeral merchandise or services and
25    sellers of burial rights, merchandise, or services to
      give notice to prospective purchasers of the ownership of
26    the business providing the rights, merchandise, or
      services. Requires related disclosures in advertisements
27    and contracts and on signs. Provides for voidability of
      contracts not containing such disclosure. Requires
28    applications for cemetery licenses and license renewals
      to contain ownership information. Requires specified
29    state agencies to coordinate recordkeeping and reporting
      of data on consumer complaints about the funeral and
30    cemetery industries.

31

                                  81