House Bill 1435
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Florida House of Representatives - 1999 HB 1435
By Representative Ritchie
1 A bill to be entitled
2 An act relating to funeral and cemetery
3 services; amending s. 497.003, F.S.; revising
4 terminology relating to cemeteries owned by a
5 religious institution; amending s. 497.005,
6 F.S.; defining the term "religious
7 institution"; amending s. 497.103, F.S.;
8 eliminating a reference to an examination fee;
9 amending ss. 497.117 and 497.131, F.S.;
10 revising terminology designating a trust fund;
11 amending s. 497.213, F.S.; increasing annual
12 license fees for certain cemeteries; amending
13 s. 497.245, F.S.; eliminating reference to
14 annual examination fees; amending ss. 497.341
15 and 497.405, F.S.; revising terminology
16 relating to cemeteries owned by a religious
17 institution; amending s. 497.407, F.S.;
18 providing initial application and renewal fees
19 for a certificate of authority to sell a
20 preneed contract; revising terminology
21 designating a trust fund; amending s. 497.431,
22 F.S.; eliminating the fee charged to examine
23 the business of any person writing preneed
24 contracts and any guaranteeing organization;
25 revising the expenses the person or
26 organization being examined is responsible for
27 paying in connection with an examination;
28 amending s. 497.435, F.S.; revising terminology
29 designating a trust fund; requiring the
30 Department of Banking and Finance to conduct a
31 comprehensive review of ch. 497, F.S., the
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1 Florida Funeral and Cemetery Services Act, and
2 to conduct public workshops and produce
3 preliminary and final reports thereon;
4 providing an appropriation; providing effective
5 dates.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Subsections (1), (4), and (5) of section
10 497.003, Florida Statutes, are amended to read:
11 497.003 Cemeteries; exemption; investigation and
12 mediation.--
13 (1) The provisions of this chapter relating to
14 cemeteries and all rules adopted pursuant thereto shall apply
15 to all cemeteries except for:
16 (a) Church Cemeteries of less than 5 acres which are
17 owned by a religious institution and provide only single-level
18 ground burial.
19 (b) County and municipal cemeteries.
20 (c) Community and nonprofit association cemeteries
21 which provide only single-level ground burial and do not sell
22 burial spaces or burial merchandise.
23 (d) Cemeteries owned and operated or dedicated by a
24 religious institution churches prior to June 23, 1976.
25 (e) Cemeteries beneficially owned and operated since
26 July 1, 1915, by a fraternal organization or its corporate
27 agent.
28 (f) A columbarium consisting of less than one-half
29 acre which is owned by and immediately contiguous to an
30 existing church facility owned by a religious institution and
31 is subject to local government zoning. The religious
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1 institution church establishing such a columbarium shall
2 ensure that the columbarium is perpetually kept and maintained
3 in a manner consistent with the intent of this chapter. If
4 the religious institution church relocates, the religious
5 institution church shall relocate all of the urns and remains
6 placed in the columbarium which were placed therein during its
7 use by the religious institution church.
8 (g) Family cemeteries of less than 2 acres which do
9 not sell burial spaces or burial merchandise.
10 (h) A mausoleum consisting of 2 acres or less which is
11 owned by and immediately contiguous to an existing church or
12 synagogue facility owned by a religious institution and is
13 subject to local government zoning. The religious institution
14 church or synagogue establishing such a mausoleum must ensure
15 that the mausoleum is kept and maintained in a manner
16 consistent with the intent of this chapter and limit its
17 availability to members of the religious institution church or
18 synagogue. The religious institution church or synagogue
19 establishing such a mausoleum must have been incorporated for
20 at least 25 years and must have sufficient funds in an
21 endowment fund to cover the costs of construction of the
22 mausoleum.
23 (4) Any church-owned cemetery that is owned by a
24 religious institution and is exempt under paragraph (1)(d), is
25 located in a county with a population of at least 1.3 million
26 persons on July 1, 1996, and was selling merchandise and
27 services to the religious institution's church's members prior
28 to October 1, 1993, may establish one additional exempt
29 cemetery in such county after December 31, 2020, without
30 establishing need under s. 497.201.
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1 (5) Any church-owned cemetery that is owned by a
2 religious institution and is exempt under subsection (1),
3 except those cemeteries qualifying under paragraph (1)(d),
4 which becomes affiliated with a commercial enterprise must
5 meet the requirements of s. 497.201.
6 Section 2. Subsections (31), (32), and (33) of section
7 497.005, Florida Statutes, 1998 Supplement, are renumbered as
8 subsections (32), (33), and (34), respectively, and a new
9 subsection (31) is added to said section to read:
10 497.005 Definitions.--As used in this chapter:
11 (31) "Religious institution" means a church,
12 synagogue, mosque, or any other established physical place for
13 worship in this state at which nonprofit religious services
14 and activities are regularly conducted.
15 Section 3. Subsection (4) of section 497.103, Florida
16 Statutes, 1998 Supplement, is amended to read:
17 497.103 Rulemaking authority of board and
18 department.--
19 (4) The department shall examine the financial affairs
20 of any cemetery company and any preneed sales
21 certificateholder and charge an examination fee as prescribed
22 in s. 497.431.
23 Section 4. Subsection (1) of section 497.117, Florida
24 Statutes, is amended to read:
25 497.117 Legal and investigative services.--
26 (1) The Department of Legal Affairs shall provide
27 legal services to the board within the Department of Banking
28 and Finance, but the primary responsibility of the Department
29 of Legal Affairs shall be to represent the interests of the
30 citizens of the state by vigorously counseling the board with
31 respect to its obligations under the laws of the state.
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1 Subject to the prior approval of the Attorney General, the
2 board may retain independent legal counsel to provide legal
3 advice to the board on a specific matter. Fees and costs of
4 such counsel shall be paid from the Regulatory Trust Fund of
5 the Department of Banking and Finance.
6 Section 5. Subsection (4) of section 497.131, Florida
7 Statutes, is amended to read:
8 497.131 Disciplinary proceedings.--
9 (4) The determination as to whether probable cause
10 exists shall be made by majority vote of the probable cause
11 panel of the board. The board shall provide, by rule, that the
12 determination of probable cause shall be made by a panel of
13 its members or by the department. The board may provide, by
14 rule, for multiple probable cause panels composed of at least
15 two members. The board may provide, by rule, that one or more
16 members of the panel or panels may be a former board member.
17 The length of term or repetition of service of any such former
18 board member on a probable cause panel may vary according to
19 the direction of the board when authorized by board rule. Any
20 probable cause panel must include one of the board's former or
21 present consumer members, if one is available, willing to
22 serve, and is authorized to do so by the board chair. Any
23 probable cause panel must include a present board member. Any
24 probable cause panel must include a former or present
25 professional board member. However, any former professional
26 board member serving on the probable cause panel must hold an
27 active valid license for that profession. All probable cause
28 proceedings conducted pursuant to the provisions of this
29 section are exempt from the provisions of s. 286.011 and s.
30 24(b), Art. I of the State Constitution. The probable cause
31 panel may make a reasonable request, and upon such request the
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1 department shall provide such additional investigative
2 information as is necessary to the determination of probable
3 cause. A request for additional investigative information
4 shall be made within 15 days from the date of receipt by the
5 probable cause panel of the investigative report of the
6 department. The probable cause panel shall make its
7 determination of probable cause within 30 days after receipt
8 by it of the final investigative report of the department. The
9 Comptroller may grant extensions of the 15-day and the 30-day
10 time limits. If the probable cause panel does not find
11 probable cause within the 30-day time limit, as may be
12 extended, or if the probable cause panel finds no probable
13 cause, the department may determine, within 10 days after the
14 panel fails to determine probable cause or 10 days after the
15 time limit has elapsed, that probable cause exists. If the
16 probable cause panel finds that probable cause exists, it
17 shall direct the department to file a formal complaint against
18 the licensee. The department shall follow the directions of
19 the probable cause panel regarding the filing of a formal
20 complaint. If directed to do so, the department shall file a
21 formal complaint against the subject of the investigation and
22 prosecute that complaint pursuant to the provisions of chapter
23 120. However, the department may decide not to prosecute the
24 complaint if it finds that probable cause had been
25 improvidently found by the panel. In such cases, the
26 department shall refer the matter to the board. The board may
27 then file a formal complaint and prosecute the complaint
28 pursuant to the provisions of chapter 120. The department
29 shall also refer to the board any investigation or
30 disciplinary proceeding not before the Division of
31 Administrative Hearings pursuant to chapter 120 or otherwise
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1 completed by the department within 1 year after the filing of
2 a complaint. A probable cause panel or the board may retain
3 independent legal counsel, employ investigators, and continue
4 the investigation as it deems necessary; all costs thereof
5 shall be paid from the department's Regulatory Trust Fund. All
6 proceedings of the probable cause panel shall be exempt from
7 the provisions of s. 120.525.
8 Section 6. Subsection (1) of section 497.213, Florida
9 Statutes, is amended to read:
10 497.213 Annual license fees.--
11 (1) The department shall collect from each cemetery
12 company operating under the provisions of this chapter an
13 annual license fee as follows:
14 (a) For a cemetery with less than $25,000 annual gross
15 sales....................................................$250.
16 (b) For a cemetery with at least $25,000 but less than
17 $100,000 annual gross sales..............................$350.
18 (c) For a cemetery with annual gross sales of at least
19 $100,000 but less than $250,000..........................$600.
20 (d) For a cemetery with annual gross sales of at least
21 $250,000 but less than $500,000..........................$900.
22 (e) For a cemetery with annual gross sales of at least
23 $500,000 but less than $750,000........................$1,350.
24 (f) For a cemetery with annual gross sales of at least
25 $750,000 but less than $1,000,000...............$2,250 $1,750.
26 (g) For a cemetery with annual gross sales of
27 $1,000,000 or more but less than $5,000,000.............$3,250
28 $2,650.
29 (h) For a cemetery with annual gross sales of
30 $5,000,000 or more.....................................$4,900.
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1 Section 7. Subsection (2) of section 497.245, Florida
2 Statutes, is amended to read:
3 497.245 Care and maintenance trust fund, percentage of
4 payments for burial rights to be deposited.--
5 (2) Deposits to the care and maintenance trust fund
6 shall be made by the cemetery company not later than 30 days
7 following the close of the calendar month in which any payment
8 was received; however, when such payments are received in
9 installments, the percentage of the installment payment placed
10 in trust must be identical to the percentage which the payment
11 received bears to the total cost for the burial rights. Trust
12 income may be used to pay for all usual and customary services
13 for the operation of a trust account, including, but not
14 limited to: reasonable trustee and custodian fees, investment
15 adviser fees, allocation fees, and taxes, and annual
16 examination fees. If the net income is not sufficient to pay
17 the fees and other expenses, the fees and other expenses shall
18 be paid by the cemetery company. Capital gains taxes shall be
19 paid from the corpus.
20 Section 8. Subsection (1) of section 497.341, Florida
21 Statutes, is amended to read:
22 497.341 Burial without regard to race or color.--
23 (1) No cemetery company or other legal entity
24 conducting or maintaining any public or private cemetery may
25 deny burial space to any person because of race or color. A
26 cemetery company or other entity operating any cemetery may
27 designate parts of cemeteries or burial grounds for the
28 specific use of persons whose religious code requires
29 isolation. Church Cemeteries that are owned by a religious
30 institution may limit burials to church members of the
31 religious institution and their families.
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1 Section 9. Subsection (4) of section 497.405, Florida
2 Statutes, is amended to read:
3 497.405 Certificate of authority required.--
4 (4) The provisions of this section do not apply to
5 church-owned cemeteries that are owned by a religious
6 institution and are exempt under s. 497.003(1)(d), in counties
7 with a population of at least 960,000 persons on July 1, 1996,
8 with respect to the sale to the religious institution's
9 church's members and their families of interment rights,
10 mausoleums, crypts, cremation niches, vaults, liners, urns,
11 memorials, vases, foundations, memorial bases, floral
12 arrangements, monuments, markers, engraving, and the opening
13 and closing of interment rights, mausoleums, crypts and
14 cremation niches, if such cemeteries have engaged in the sale
15 of preneed contracts prior to October 1, 1993, and maintain a
16 positive net worth at the end of each fiscal year of the
17 cemetery.
18 Section 10. Subsections (4), (9), and (12) of section
19 497.407, Florida Statutes, are amended to read:
20 497.407 Certificate of authority; initial application
21 and renewal fees; annual statement; renewal; transfer.--
22 (4)(a) An application to the board for an initial
23 certificate of authority shall be accompanied by an
24 application fee of $250. Thereafter, each annual application
25 for renewal of a certificate of authority shall be accompanied
26 by the appropriate fee as follows:
27 1. For a certificateholder with less than $100,000 in
28 gross sales during the immediate preceding year..........$250.
29 2. For a certificateholder with at least $100,000 but
30 less than $250,000 in gross sales during the immediate
31 preceding year...........................................$400.
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1 3. For a certificateholder with at least $250,000 but
2 less than $500,000 in gross sales during the immediate
3 preceding year...........................................$600.
4 4. For a certificateholder with at least $500,000 but
5 less than $750,000 in gross sales during the immediate
6 preceding year.........................................$1,000.
7 5. For a certificateholder with at least $750,000 but
8 less than $1,000,000 ingross sales during the immediate
9 preceding year.........................................$1,500.
10 6. For a certificateholder with at least $1,000,000
11 but less than $5,000,000 in gross sales during he immediate
12 preceding year.........................................$2,000.
13 7. For a certificateholder with annual gross sales of
14 $5,000,000 or more.....................................$4,900.
15 (b) The fee payable to the department for issuance of
16 the original certificate of authority and each annual renewal
17 thereof shall be set by the board at an amount not to exceed
18 $500 and shall accompany each application for an original
19 certificate and, thereafter, each annual statement. Any person
20 or entity that is part of a common business enterprise that
21 has a certificate of authority issued pursuant to this section
22 and elects to operate under a name other than that of the
23 common business enterprise shall submit an application on a
24 form adopted by the board to become a branch registrant. Upon
25 the approval of the board that such entity qualifies to sell
26 preneed contracts under this chapter except for the
27 requirements of subparagraph (2)(c)1. and if the
28 certificateholder meets the requirements of such subparagraph,
29 a branch registration shall be issued. Each branch registrant
30 may operate under the certificate of authority of the common
31 business enterprise upon the payment of a fee established by
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1 the board not to exceed $150 $100 accompanying the application
2 on April 1 annually. The fee shall be payable to the
3 department's Regulatory Trust Fund under the Division of
4 Finance.
5 (9) In addition to any other penalty that may be
6 provided for under this chapter, the board may levy a fine not
7 to exceed $50 a day for each day the certificateholder fails
8 to file its annual statement, and the board may levy a fine
9 not to exceed $50 a day for each day the certificateholder
10 fails to file the statement of activities of the trust. Upon
11 notice to the certificateholder by the board that the
12 certificateholder has failed to file the annual statement or
13 the statement of activities of the trust, the
14 certificateholder's authority to sell preneed contracts shall
15 cease while such default continues. The board shall deposit
16 all sums collected under this section to the credit of the
17 department's Regulatory Trust Fund under the Division of
18 Finance.
19 (12) Each certificateholder shall pay to the
20 department's Regulatory Trust Fund under the Division of
21 Finance an amount established by the board not to exceed $10
22 $5 for each preneed contract entered into. This amount must be
23 paid within 60 days after the end of each quarter. These funds
24 must be used to defray the cost of the board and the
25 department in administering the provisions of this chapter.
26 Section 11. Section 497.431, Florida Statutes, is
27 amended to read:
28 497.431 Examinations and investigations.--The
29 department shall, as often as it may deem necessary but at
30 least once every 3 years, examine the business of any person
31 writing preneed contracts and any guaranteeing organization
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1 existing under this chapter to the extent applicable. The
2 examination shall be at the expense of the person or
3 organization examined as provided in this section and shall be
4 made by the designated representatives or examiners
5 representative or examiner of the department. The written
6 report of each such examination, when completed, shall be
7 filed in the office of the board and, when so filed, shall
8 constitute a public record. Any such person or organization
9 being examined shall produce, upon request, all records of the
10 company or organization. The designated representative of the
11 board may at any time examine the records and affairs of any
12 such person or organization, whether in connection with a
13 formal examination or not. The board may waive the examination
14 requirements of this section if the certificateholder or
15 guaranteeing organization submits audited financial
16 statements. The department may charge an examination fee
17 prescribed by rule, but such fee may not exceed $300 per
18 8-hour day for each examiner. Such examination fee shall be
19 calculated on an hourly basis and shall be rounded to the
20 nearest hour. The person or organization examined For
21 out-of-state travel, the licensee shall also pay the travel
22 expense and per diem subsistence allowance provided for state
23 employees under s. 112.061 for out-of-state travel incurred by
24 department representatives or examiners in connection with an
25 examination. The department shall be entitled to recover the
26 reasonable and justifiable costs of investigation if the
27 investigation results in judicial or administrative
28 disciplinary action.
29 Section 12. Subsection (3) of section 497.435, Florida
30 Statutes, is amended to read:
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1 497.435 Administrative fine in lieu of revocation or
2 suspension of certificate of authority.--
3 (3) The fine shall be deposited into the department's
4 Regulatory Trust Fund under the Division of Finance.
5 Section 13. (1) The Department of Banking and Finance
6 shall conduct a comprehensive review of chapter 497, Florida
7 Statutes, the Florida Funeral and Cemetery Services Act. In
8 conducting its review, the department shall:
9 (a) Examine ways to promote and increase competition
10 in the cemetery industry and streamline the regulatory process
11 under the chapter.
12 (b) Examine ways to eliminate the determination of
13 need for new cemeteries required by s. 497.201, Florida
14 Statutes, address constitutional concerns, and minimize
15 negative impacts on existing cemeteries.
16 (c) Examine and determine the cost of providing
17 perpetual care for cemeteries.
18 (d) Examine the statutory requirements for care and
19 maintenance trust funds to determine if the requirements are
20 adequate to provide perpetual care for cemeteries.
21 (e) Examine the disciplinary powers of the department
22 and the Board of Funeral and Cemetery Services to ensure clear
23 and concise enforcement.
24 (f) Examine other sections of the chapter, as
25 necessary.
26 (g) Report findings and make recommendations
27 concerning solutions to problems identified by the department,
28 including proposed legislation deemed advisable to implement
29 recommended solutions.
30 (h) Conduct at least two public workshops prior to
31 December 1, 1999, in order to receive public comment.
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1 (2) The department shall produce a preliminary report
2 by December 1, 1999, and a final report by January 15, 2000,
3 detailing its findings and recommendations. The department
4 shall conduct at least one public workshop between December 1,
5 1999, and January 15, 2000, to solicit public testimony
6 concerning the preliminary draft. A copy of the final report
7 shall be presented to the President and the Minority Leader of
8 the Senate, the Speaker and the Minority Leader of the House
9 of Representatives, the Governor, and the Office of Program
10 Policy Analysis and Government Accountability.
11 (3) This section shall take effect upon this act
12 becoming a law.
13 Section 14. There is hereby appropriated $115,000 for
14 fiscal year 1999-2000 to the Department of Banking and Finance
15 from the department's Regulatory Trust Fund for the purpose of
16 carrying out the provisions of this act.
17 Section 15. Except as otherwise provided herein, this
18 act shall take effect July 1, 1999.
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21 HOUSE SUMMARY
22
Revises various provisions of ch. 497, F.S., the Florida
23 Funeral and Cemetery Services Act. Defines the term
"religious institution" and revises terminology relating
24 to cemeteries owned by such institutions, to conform.
Revises other terminology designating a trust fund.
25 Increases annual license fees for cemeteries with annual
gross sales above a certain amount. Eliminates references
26 to annual and other examination fees. Provides initial
application and renewal fees for a certificate of
27 authority to sell a preneed contract. Eliminates the fee
charged to examine the business of any person writing
28 preneed contracts and any guaranteeing organization, and
revises the expenses the person or organization being
29 examined is responsible for paying in connection with an
examination. Requires the Department of Banking and
30 Finance to conduct a comprehensive review of ch. 497,
F.S., and to conduct public workshops and produce
31 preliminary and final reports thereon. See bill for
details.
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