Senate Bill sb1924

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    Florida Senate - 2001                                  SB 1924

    By Senator Pruitt





    27-934A-01

  1                      A bill to be entitled

  2         An act relating to funeral and cemetery

  3         services; amending s. 497.003, F.S.; revising

  4         references relating to burial records and need

  5         determinations; amending s. 497.005, F.S.;

  6         providing and revising definitions; amending s.

  7         497.101, F.S.; providing membership and terms

  8         of the Board of Funeral Directors, Embalmers,

  9         and Cemetery Services; amending s. 497.103,

10         F.S.; providing rulemaking authority; amending

11         s. 497.105, F.S.; providing for appointment of

12         the executive director of the board; amending

13         s. 497.107, F.S.; providing headquarters of the

14         board; amending s. 497.109, F.S.; conforming

15         provisions; amending s. 497.201, F.S.;

16         increasing minimum acreage requirements to

17         establish a cemetery company; eliminating need

18         determinations for new cemeteries; revising

19         experience requirements for the general manager

20         of a cemetery company; amending s. 497.237,

21         F.S.; authorizing care and maintenance trust

22         funds to be established with a federal savings

23         and loan association holding trust powers in

24         this state; amending s. 497.245, F.S.; revising

25         provisions establishing the percentage of

26         payments for burial rights to be deposited in

27         care and maintenance trust funds; amending s.

28         497.253, F.S.; revising minimum acreage

29         requirements and references, to conform;

30         amending s. 497.257, F.S.; requiring cemetery

31         companies to disclose to purchasers the month

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  1         and year of scheduled completion of units of

  2         mausoleums, columbaria, or belowground crypts

  3         under construction; creating s. 497.258, F.S.;

  4         requiring permanent labels on containers used

  5         for inurnment of human remains; amending s.

  6         497.309, F.S.; applying recordkeeping

  7         requirements to certificateholders; amending s.

  8         497.337, F.S.; revising provisions relating to

  9         delivery of the sale of personal property and

10         services; repealing s. 497.353(12), F.S.,

11         relating to prohibiting the use in need

12         determinations of spaces or lots from burial

13         rights reacquired by a cemetery, to conform;

14         amending s. 497.405, F.S.; requiring a

15         certificate of authority to guarantee funeral

16         merchandise or services in the future or offer

17         a preneed contract; amending s. 497.413, F.S.,

18         relating to the Preneed Funeral Contract

19         Consumer Protection Trust Fund; providing for

20         separate accounting of funds received pursuant

21         to s. 497.425, F.S., from bond sureties;

22         authorizing the Board of Funeral and Cemetery

23         Services to adopt rules for the distribution of

24         such separated funds; revising the total amount

25         of restitutions that may be made from the trust

26         fund in any fiscal year to certain applicants;

27         amending s. 497.417, F.S.; providing entities

28         with which deposits for a preneed trust fund

29         may be placed; providing a restriction on the

30         amount of trust assets of a preneed contract a

31         certificateholder may revest title to; amending

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  1         s. 497.425, F.S., relating to financial

  2         responsibility alternatives to the placing in

  3         trust of preneed contract funds; revising the

  4         amount required to be secured by a surety bond;

  5         authorizing the sale of preneed merchandise and

  6         services under other forms of security;

  7         revising requirements relating to the filing of

  8         claims with such sureties; providing for

  9         deposit in the Preneed Funeral Contract

10         Consumer Protection Trust Fund of sums received

11         by the board from sureties for payment to

12         claimants; providing for payment to such

13         claimants from the trust fund; amending s.

14         497.429, F.S.; revising requirements for

15         disbursement of trust funds discharging or

16         refunding a preneed contract; amending s.

17         470.002, F.S.; providing for future

18         redefinition of the terms "department" and

19         "board"; amending s. 470.003, F.S.; providing

20         for future placement of the Board of Funeral

21         Directors and Embalmers within the Department

22         of Banking and Finance; providing for future

23         transfer of all records, personnel, property,

24         and unexpended balances of appropriations,

25         allocations, or other funds for the

26         administration of ch. 470, F.S., relating to

27         funeral directing, embalming, and direct

28         disposition, from the Department of Business

29         and Professional Regulation to the Department

30         of Banking and Finance; preserving the validity

31         of judicial and administrative proceedings

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  1         pending at the time of such transfer and the

  2         validity of licenses and registrations in

  3         effect at the time of such transfer; requiring

  4         the Department of Banking and Finance to submit

  5         to the Governor, the President of the Senate,

  6         and the Speaker of the House of Representatives

  7         a report on the impact of merging the Board of

  8         Funeral Directors and Embalmers with the Board

  9         of Funeral and Cemetery Services, including

10         proposed legislation providing for the merger;

11         providing effective dates.

12

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

14

15         Section 1.  Subsections (2) and (4) of section 497.003,

16  Florida Statutes, are amended to read:

17         497.003  Cemeteries; exemption; investigation and

18  mediation.--

19         (2)  Sections Section 497.309(1) as to burial records,

20  and ss. 497.321, 497.325, 497.341, and 497.345 apply to all

21  cemeteries in this state.

22         (4)  Any religious-institution-owned cemetery that is

23  exempt under paragraph (1)(d), is located in a county with a

24  population of at least 1.3 million persons on July 1, 1996,

25  and was selling merchandise and services to the religious

26  institution's members prior to October 1, 1993, may establish

27  one additional exempt cemetery in such county after December

28  31, 2020, without establishing need under s. 497.201.

29         Section 2.  Section 497.005, Florida Statutes, is

30  amended to read:

31         497.005  Definitions.--As used in this chapter:

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

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

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

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

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

  6  construction unit of belowground crypts which is acceptable to

  7  the department and which a cemetery uses to initiate its

  8  belowground crypt program or to add to existing belowground

  9  crypt structures.

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

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

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

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

14         (4)  "Board" means the Board of Funeral Directors,

15  Embalmers, and Cemetery Services.

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

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

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

19  memorialization, interment, entombment, or inurnment of human

20  remains.

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

22  space, mausoleum, or columbarium, ossuary, or scattering

23  garden for the interment, entombment, or inurnment, or other

24  disposition of human remains.

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

26  means any service offered or provided by any person in

27  connection with the final disposition, memorialization,

28  interment, entombment, or inurnment of human remains.

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

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

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

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

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

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

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

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

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

  7  following activities:  mowing the grass at reasonable

  8  intervals; raking and cleaning the grave spaces and adjacent

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

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

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

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

13  reasonable overhead expenses necessary for such purposes,

14  including maintenance of machinery, tools, and equipment used

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

16  repair or restoration of improvements necessary or desirable

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

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

19  for the construction and development of new grave spaces or

20  interment structures to be sold to the public.

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

22  for the encasement of human remains and which is usually

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

24  fabric.

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

26  intended to be used for the permanent interment of human

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

28  mausoleum, vault, or crypt interment; a columbarium, ossuary,

29  scattering garden, or other structure or place used or

30  intended to be used for the interment or disposition of

31

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  1  cremated human remains; or any combination of one or more of

  2  such structures or places.

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

  4  owns or controls cemetery lands or property.

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

  6  person or entity that is authorized under this chapter to sell

  7  preneed funeral or burial services, preneed funeral or burial

  8  merchandise, or burial rights. Each term shall include the

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

10  purposes of chapter 120, all certificateholders, licensees,

11  and registrants shall be considered licensees.

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

13  is substantially exposed above the ground and which is

14  intended to be used for the inurnment of cremated human

15  remains.

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

17  or more business entities that share common ownership in

18  excess of 50 percent.

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

20  radius surrounding the location or proposed location of a

21  cemetery.

22         (15)(16)  "Cremation" includes any mechanical or

23  thermal process whereby a dead human body is reduced to ashes.

24  Cremation also includes any other mechanical or thermal

25  process whereby human remains are pulverized, burned,

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

27         (16)(17)  "Department" means the Department of Banking

28  and Finance.

29         (17)(18)  "Direct disposer" means any person who is

30  registered in this state to practice direct disposition

31  pursuant to the provisions of chapter 470.

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  1         (18)(19)  "Final disposition" means the final disposal

  2  of a dead human body whether by interment, entombment, burial

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

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

  5  segregated charge is imposed.

  6         (19)(20)  "Funeral director" means any person licensed

  7  in this state to practice funeral directing pursuant to the

  8  provisions of chapter 470.

  9         (20)(21)  "Grave space" means a space of ground in a

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

11  of human remains.

12         (21)(22)  "Human remains" means the bodies of deceased

13  persons and includes bodies in any stage of decomposition and

14  cremated remains.

15         (22)(23)  "Mausoleum" means a structure or building

16  which is substantially exposed above the ground and which is

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

18         (23)(24)  "Mausoleum section" means any construction

19  unit of a mausoleum which is acceptable to the department and

20  which a cemetery uses to initiate its mausoleum program or to

21  add to its existing mausoleum structures.

22         (24)(25)  "Monument" means any product used for

23  identifying a grave site and cemetery memorials of all types,

24  including monuments, markers, and vases.

25         (25)(26)  "Monument establishment" means a facility

26  that operates independently of a cemetery or funeral

27  establishment and that offers to sell monuments or monument

28  services to the public for placement in a cemetery.

29         (26)(27)  "Net assets" means the amount by which the

30  total assets of a certificateholder, excluding goodwill,

31  franchises, customer lists, patents, trademarks, and

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  1  receivables from or advances to officers, directors,

  2  employees, salespersons, and affiliated companies, exceed

  3  total liabilities of the certificateholder.  For purposes of

  4  this definition, the term "total liabilities" does not include

  5  the capital stock, paid-in capital, or retained earnings of

  6  the certificateholder.

  7         (27)(28)  "Net worth" means total assets minus total

  8  liabilities pursuant to generally accepted accounting

  9  principles.

10         (28)  "Ossuary" means a receptacle used for the

11  communal placement of cremated human remains without benefit

12  of an urn or any other container.  It may or may not include

13  memorialization.

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

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

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

17  sectional concrete enclosures; crypts; and wooden enclosures.

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

19  method, of which the provider of funeral merchandise or

20  services has actual knowledge, whereby any person the funeral

21  establishment, direct disposer, or certificateholder agrees to

22  furnish funeral merchandise or service in the future.

23         (31)  "Religious institution" means an organization

24  formed primarily for religious purposes which has qualified

25  for exemption from federal income tax as an exempt

26  organization under the provisions of s. 501(c)(3) of the

27  Internal Revenue Code of 1986, as amended.

28         (32)  "Scattering garden" means a location set aside,

29  within a cemetery, which is used for the spreading or

30  broadcasting of cremated remains.  It may or may not include

31  memorialization.

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  1         (33)(32)  "Servicing agent" means any person acting as

  2  an independent contractor whose fiduciary responsibility is to

  3  assist both the trustee and certificateholder hereunder in

  4  administrating their responsibilities pursuant to this

  5  chapter.

  6         (34)(33)  "Solicitation" means any communication which

  7  directly or implicitly requests an immediate oral response

  8  from the recipient.

  9         (35)(34)  "Statutory accounting" means generally

10  accepted accounting principles, except as modified by this

11  chapter.

12         Section 3.  Effective January 1, 2002, section 497.101,

13  Florida Statutes, is amended to read:

14         497.101  Board of Funeral Directors, Embalmers, and

15  Cemetery Services; membership; appointment; terms.--

16         (1)  The Board of Funeral Directors, Embalmers, and

17  Cemetery Services is created within the Department of Banking

18  and Finance and shall consist of nine seven members appointed

19  by the Governor, from nominations made by the Comptroller, and

20  confirmed by the Senate. The Comptroller shall nominate three

21  persons for each vacancy on the board, and the Governor shall

22  fill each vacancy on the board by appointing one of the three

23  persons nominated by the Comptroller to fill that vacancy.  If

24  the Governor objects to each of the three nominations for a

25  vacancy, she or he shall inform the Comptroller in writing.

26  Upon notification of an objection by the Governor, the

27  Comptroller shall submit three additional nominations for that

28  vacancy until the vacancy is filled.

29         (2)  Three Two members of the board must be funeral

30  directors licensed under chapter 470 who are not associated

31  with a cemetery company through ownership interests or through

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

  2  cemetery. Three Two members must be owners or operators of a

  3  cemetery licensed under this chapter.  The remaining three

  4  members must be residents of the state who have never been

  5  licensed as funeral directors or embalmers and who are in no

  6  way connected with a cemetery, the death care industry, or the

  7  practice of embalming, funeral directing, or direct

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

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

10  associated by employment or ownership with a funeral

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

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

13  associated with another licensee on the board.

14         (3)  The Governor shall appoint members for terms of 4

15  years, and such members shall serve until their successors are

16  appointed. The initial board must consist of at least one

17  funeral director who was a member of the Board of Funeral

18  Directors and Embalmers, one owner or operator of a cemetery

19  who was a member of the Board of Funeral and Cemetery

20  Services, and one former consumer member of either the Board

21  of Funeral Directors and Embalmers or the Board of Funeral and

22  Cemetery Services. The terms of two of the funeral directors,

23  two of the owners or operators of cemeteries, and one consumer

24  member who are members of the initial board shall be 4 years.

25  The terms of the remaining members of the initial board shall

26  be 2 years. When the terms of the initial board members

27  expire, the Governor shall stagger the terms of the successor

28  members as follows: one funeral director, one cemetery company

29  representative, and one consumer member shall be appointed for

30  terms of 2 years, and the remaining members shall be appointed

31

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  1  for terms of 4 years. All subsequent terms shall be for 4

  2  years.

  3         Section 4.  Effective January 1, 2002, section 497.103,

  4  Florida Statutes, is amended to read:

  5         497.103  Rulemaking authority of board and

  6  department.--

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

  8  ss. 120.536(1) and 120.54 to implement provisions of chapters

  9  470 and 497 this chapter conferring duties upon it. The

10  department may adopt rules pursuant to ss. 120.536(1) and

11  120.54 to administer provisions of this chapter conferring

12  duties upon it. The board or the department may also adopt

13  rules to allow for the electronic submission of any

14  applications, documents, or fees required by this chapter. The

15  board or the department may adopt rules to authorize the board

16  or the department to accept certification of compliance with

17  certain requirements of this chapter in lieu of requiring

18  submission of the documents.

19         (2)  The board shall adopt rules which establish

20  requirements for inspection of cemeteries.

21         (3)  The board shall adopt and enforce rules governing

22  the operation of cemeteries in this state and arrange for the

23  preparation, publication, and dissemination to the public of

24  these rules and other information and material relevant to the

25  operation of cemeteries.

26         (4)  The department shall examine the financial affairs

27  of any cemetery company and any preneed sales

28  certificateholder.

29         Section 5.  Effective January 1, 2002, subsection (2)

30  of section 497.105, Florida Statutes, is amended to read:

31

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  1         497.105  Department of Banking and Finance; powers and

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

  3         (2)  Appoint the executive director of the Board of

  4  Funeral Directors, Embalmers, and Cemetery Services, subject

  5  to the approval of the board.

  6         Section 6.  Effective January 1, 2002, section 497.107,

  7  Florida Statutes, is amended to read:

  8         497.107  Headquarters.--The Board of Funeral Directors,

  9  Embalmers, and Cemetery Services may be contacted through the

10  headquarters of the Department of Banking and Finance in the

11  City of Tallahassee.

12         Section 7.  Effective January 1, 2002, section 497.109,

13  Florida Statutes, is amended to read:

14         497.109  Board of Funeral Directors, Embalmers, and

15  Cemetery Services; membership.--

16         (1)  The Board of Funeral Directors, Embalmers, and

17  Cemetery Services shall comply with the provisions of this

18  section.

19         (2)  The board shall annually elect from among its

20  number a chair and a vice chair.

21         (3)  The board shall hold such meetings during the year

22  as it may deem necessary, one of which shall be the annual

23  meeting.  The chair or a quorum of the board may call other

24  meetings, and a quorum is necessary for the conduct of

25  business by the board.  Unless otherwise provided by law, a

26  majority of the members of the board constitutes a quorum.  A

27  vacancy shall occur upon the failure of a member of the board

28  to attend three consecutive meetings of the board or at least

29  half of the meetings of the board during any 12-month period.

30         (4)  Unless otherwise provided by law, a board member

31  shall be compensated $50 for each day the member attends an

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  1  official meeting of the board and for each day the member

  2  participates in any other business involving the board. The

  3  board shall adopt rules defining the phrase "other business

  4  involving the board," but the phrase may not be defined to

  5  include telephone conference calls.  A board member is

  6  entitled to reimbursement for expenses pursuant to s. 112.061,

  7  but travel out of state requires the prior approval of the

  8  Comptroller.

  9         (5)  The chair of the board may appoint committees

10  necessary to conduct the business  of the board, including,

11  but not limited to, committees having responsibilities with

12  respect to rules, continuing education, and consumer

13  protection. Each committee must be chaired by a current or

14  former member of the board or a former member of the Board of

15  Funeral Directors and Embalmers or of the Board of Funeral and

16  Cemetery Services.

17         Section 8.  Section 497.201, Florida Statutes, is

18  amended to read:

19         497.201  Cemetery companies; license; application;

20  fee.--

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

22  obtaining a license from the department, unless specifically

23  exempted from this chapter.

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

25  establish a cemetery company who applies for a license to

26  provide any information reasonably necessary to make a

27  determination of the applicant's eligibility for licensure.

28  Any person desiring to establish a cemetery company shall

29  first:

30         (a)  File an application, which states the exact

31  location of the proposed cemetery, which site shall contain

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  1  not less than 30 15 contiguous acres; provide a financial

  2  statement signed by all officers of the company which attest

  3  to a net worth of at least $50,000, which net worth must be

  4  continuously maintained as a condition of licensure; and pay

  5  an application fee of $5,000;

  6         (b)  Create a legal entity; and

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

  8  the applicant possesses the ability, experience, financial

  9  stability, and integrity to operate a cemetery.

10         (3)  The department shall determine the need for a new

11  cemetery by considering the adequacy of existing cemetery

12  facilities, licensed and unlicensed, within the community; the

13  solvency of the trust funds of the existing facilities; and

14  the relationship between population, rate of population

15  growth, death rate, and ratio of burials to deaths to meet the

16  projected need for burial spaces for a period of 30 years.  In

17  order to promote competition, the department may waive the

18  criteria of this subsection so that each county may have at

19  least six cemeteries operated by different licensees.

20         (3)(4)  If the board finds that the applicant meets the

21  criteria established in subsection (2) and the department

22  determines that a need for the new cemetery in the community

23  exists, the department shall notify the applicant that a

24  license will be issued when:

25         (a)  The establishment of a care and maintenance trust

26  fund containing not less than $50,000 has been certified by a

27  trust company operating under chapter 660, a state or national

28  bank holding trust powers, or a savings and loan association

29  holding trust powers as provided in s. 497.237 licensed in

30  this state.

31

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  1         (b)  The applicant has filed with the department

  2  development plans which are sufficient to ensure the

  3  department that the cemetery will provide adequate service to

  4  the community and which have been approved by the appropriate

  5  local governmental agency regulating zoning in the area of the

  6  proposed cemetery.

  7         (c)  The applicant holds an unencumbered fee simple

  8  title to at least 30 15 contiguous acres of land.

  9         (d)  The applicant has designated as general manager a

10  person who has integrity, 3 years 1 year of cemetery

11  management experience as defined by board rule, and the

12  ability to operate a cemetery.

13         (e)  The applicant has fully developed not less than 2

14  acres for use as burial space, such development to include a

15  paved road from a public roadway to the developed section.

16         (f)  The applicant has recorded, in the public records

17  of the county in which the land is located, a notice which

18  contains the following language:

19

20                              NOTICE

21

22  The property described herein shall not be sold, conveyed,

23  leased, mortgaged, or encumbered without the prior written

24  approval of the Department of Banking and Finance, as provided

25  in the Florida Funeral and Cemetery Services Act.

26

27  Such notice shall be clearly printed in boldfaced type of not

28  less than 10 points and may be included on the face of the

29  deed of conveyance to the licensee or may be contained in a

30  separate recorded instrument which contains a description of

31  the property.

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  1         (4)(5)  The department shall issue a license to operate

  2  a cemetery company to any applicant who, within 12 months

  3  after notice that a license may be issued, meets the criteria

  4  of subsection (3) (4).  With respect to any application for

  5  which the department has given notice under subsection (3) (4)

  6  on or after January 1, 1984, the board may, for good cause

  7  shown, grant up to two extensions of the 12-month period

  8  within which the applicant must meet the criteria of

  9  subsection (3) (4).

10         Section 9.  Subsection (1) of section 497.237, Florida

11  Statutes, is amended to read:

12         497.237  Care and maintenance trust fund; remedy of

13  department for noncompliance.--

14         (1)  No cemetery company may establish a cemetery, or

15  operate a cemetery if already established, without providing

16  for the future care and maintenance of the cemetery, for which

17  a care and maintenance trust fund shall be established, to be

18  known as "the care and maintenance trust fund of ....."  The

19  trust fund shall be established with a trust company operating

20  pursuant to chapter 660, or with a state or national bank

21  holding trust powers, or with a federal or state savings and

22  loan association holding trust powers.  Trust funds which are

23  with a state or national bank or savings and loan association

24  licensed in this state on October 1, 1993, shall remain in

25  force; however, when the amount of any such trust fund exceeds

26  the amount that is insured by an agency of the Federal

27  Government, the cemetery company shall transfer that trust

28  fund to a trust company operating pursuant to chapter 660, or

29  to a state or national bank holding trust powers, or to a

30  federal or state savings and loan association holding trust

31  powers.

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  1         Section 10.  Subsection (1) 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         (1)  Each cemetery company shall set aside and deposit

  6  in its care and maintenance trust fund the following

  7  percentages or amounts for all sums received from sales of

  8  burial rights:

  9         (a)  For burial rights graves, 10 percent of all

10  payments received; however, for sales made after September 30,

11  1993, no deposit shall be less than $25 per grave.  For each

12  burial right, grave, or space which is provided without

13  charge, the deposit to the fund shall be $25.

14         (b)  For mausoleums or columbaria, 10 percent of

15  payments received.

16         (c)  For general endowments for the care and

17  maintenance of the cemetery, the full amount of sums received

18  when received.

19         (d)  For special endowments for a specific lot or grave

20  or a family mausoleum, memorial, marker, or monument, the

21  cemetery company may set aside the full amount received for

22  this individual special care in a separate trust fund or by a

23  deposit to a savings account in a bank or savings and loan

24  association located within and authorized to do business in

25  the state; however, if the licensee does not set up a separate

26  trust fund or savings account for the special endowment, the

27  full amount thereof shall be deposited into the care and

28  maintenance trust fund as required of general endowments.

29         Section 11.  Section 497.253, Florida Statutes, is

30  amended to read:

31

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  1         497.253  Minimum acreage; sale or disposition of

  2  cemetery lands.--

  3         (1)  Each licensee shall set aside a minimum of 30 15

  4  contiguous acres of land for use by the licensee as a cemetery

  5  and shall not sell, mortgage, lease, or encumber that property

  6  without prior written approval of the department.

  7         (2)  Any lands owned by a licensee and dedicated for

  8  use by it as a cemetery, which are contiguous, adjoining, or

  9  adjacent to the minimum of 30 15 contiguous acres described in

10  subsection (1), may be sold, conveyed, or disposed of by the

11  licensee, after obtaining written approval of the department

12  pursuant to subsection (3), for use by the new owner for other

13  purposes than as a cemetery. All of the human remains which

14  have been previously interred therein shall first have been

15  removed from the lands proposed to be sold, conveyed, or

16  disposed of; however, the provisions of ss. 470.0295 and

17  497.515(7) must be complied with prior to any disinterment of

18  human remains. Any and all titles, interests, or burial rights

19  which may have been sold or contracted to be sold in lands

20  which are the subject of the sale shall be conveyed to and

21  revested in the licensee prior to consummation of any such

22  sale, conveyance, or disposition.

23         (3)(a)  If the property to be sold, conveyed, or

24  disposed of under subsection (2) has been or is being used for

25  the permanent interment of human remains, the applicant for

26  approval of such sale, conveyance, or disposition shall cause

27  to be published, at least once a week for 4 consecutive weeks,

28  a notice meeting the standards of publication set forth in s.

29  125.66(4)(b)2. The notice shall describe the property in

30  question and the proposed noncemetery use and shall advise

31  substantially affected persons that they may file a written

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  1  request for a hearing pursuant to chapter 120, within 14 days

  2  after the date of last publication of the notice, with the

  3  department if they object to granting the applicant's request

  4  to sell, convey, or dispose of the subject property for

  5  noncemetery uses.

  6         (b)  If the property in question has never been used

  7  for the permanent interment of human remains, no notice or

  8  hearing is required.

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

10  permanent interment of human remains, the department shall

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

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

13  to approve the application, the department shall consider any

14  evidence presented concerning the following:

15         1.  The historical significance of the subject

16  property, if any.

17         2.  The archaeological significance of the subject

18  property, if any.

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

20  proposed use of the subject property.

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

22  subject property upon the inventory of remaining cemetery

23  facilities in the community and upon the other factors

24  enumerated in s. 497.201(3).

25         4.5.  The impact of the proposed change in use of the

26  subject property upon the reasonable expectations of the

27  families of the deceased regarding whether the cemetery

28  property was to remain as a cemetery in perpetuity.

29         5.6.  Whether any living relatives of the deceased

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

31  the conversion of the subject property to noncemetery uses.

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  1         6.7.  The elapsed time since the last interment in the

  2  subject property.

  3         7.8.  Any other factor enumerated in this chapter that

  4  the department considers relevant to the public interest.

  5         (d)  Any deed, mortgage, or other conveyance by a

  6  cemetery company or other owner pursuant to subsections (a)

  7  and (c) above must contain a disclosure in the following or

  8  substantially similar form:

  9

10  NOTICE:  The property described herein was formerly used and

11  dedicated as a cemetery. Conveyance of this property and its

12  use for noncemetery purposes was authorized by the Florida

13  Department of Banking and Finance by Order No. ...., dated

14  .....

15

16         (e)  The department shall adopt such rules as are

17  necessary to carry out the provisions of this section.

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

19  municipality or county its real and personal property,

20  together with moneys deposited in trust funds pursuant to this

21  chapter, provided the municipality or county will accept

22  responsibility for maintenance thereof and prior written

23  approval of the department is obtained.

24         (5)  The provisions of subsections (1) and (2) relating

25  to a requirement for minimum acreage shall not apply to any

26  cemetery company licensed by the department on or before July

27  1, 2001 1965, which owns a total of less than 30 15 acres of

28  land; however, no cemetery company shall dispose of any land

29  without the prior written consent of the department.

30         Section 12.  Subsection (1) of section 497.257, Florida

31  Statutes, is amended to read:

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  1         497.257  Construction of mausoleums, columbaria, and

  2  belowground crypts; preconstruction trust fund; compliance

  3  requirement.--

  4         (1)  A cemetery company shall start construction of

  5  that section of a mausoleum, columbarium, or bank of

  6  belowground crypts in which sales, contracts for sales,

  7  reservations for sales, or agreements for sales are being made

  8  within 4 years after the date of the first such sale or 50

  9  percent of the mausoleum, columbarium, or belowground crypts

10  have been sold and the purchase price has been received,

11  whichever occurs first. The construction shall be completed

12  within 5 years after the date of the first sale made.

13  However, extensions for completion, not to exceed 1 year, may

14  be granted by the department for good cause shown. If the

15  units have not been completely constructed at the time of need

16  or the time specified herein, all moneys paid shall be

17  refunded upon request, plus interest earned thereon for that

18  portion of the moneys deposited in the trust fund and an

19  amount equal to the interest that would have been earned on

20  that portion of the moneys which was that were not in trust.

21  The month and year in which construction is scheduled to be

22  completed must be disclosed to the purchaser.

23         Section 13.  Section 497.258, Florida Statutes, is

24  created to read:

25         497.258  Permanent labels on containers used for final

26  disposition or inurnment of human remains.--

27         (1)  All permanent outer burial receptacles, caskets,

28  and urns must be affixed with a permanent label identifying

29  the full name of the deceased and the date of death.

30         (2)  Labels on permanent outer burial receptacles must

31  be placed in a conspicuous location on the receptacle.

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  1         (3)  Labels on caskets must be placed in a conspicuous

  2  location on the interior and exterior of the casket. Labels on

  3  caskets must be attached prior to the funeral if a funeral is

  4  held.

  5         (4)  Labels on urns must be placed on or attached to

  6  any location on the urn. Labels must also be placed inside the

  7  urn.

  8         Section 14.  Section 497.309, Florida Statutes, is

  9  amended to read:

10         497.309  Records.--

11         (1)(a)  A record shall be kept of every burial in the

12  cemetery of a cemetery company, showing the date of burial and

13  the name of the person buried, together with lot, plot, and

14  space and location as specified in paragraph (b) in which the

15  burial was made.

16         (b)  The location of each opened grave must, prior to

17  the burial of a casket or permanent outer burial receptacle,

18  be determined and recorded to within a meter's accuracy or

19  better to the center of the burial site.

20         (2)(a)  All financial records of the cemetery company

21  or certificateholder shall be available at its principal place

22  of business in this state and shall be readily available at

23  all reasonable times for examination by the department.

24         (b)(2)  Notwithstanding the provisions of paragraph (a)

25  subsection (1), the board may, upon request, authorize a

26  cemetery company or certificateholder to maintain its

27  financial records at a location other than its principal place

28  of business and may, if necessary, require the company or

29  certificateholder to make its books, accounts, records, and

30  documents available at a reasonable and convenient location in

31  this state.

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

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

  3  cemetery company or certificateholder to enable the department

  4  to determine the company's or certificateholder's compliance

  5  with this chapter.

  6         Section 15.  Section 497.337, Florida Statutes, is

  7  amended to read:

  8         497.337  Delivery Prohibition on sale of personal

  9  property or services.--

10         (1)  This section applies to all cemetery companies and

11  certificate holders licensed pursuant to this chapter that

12  offer for sale or sell personal property or services that

13  which may be used in a cemetery in connection with the burial

14  of human remains or the commemoration of the memory of a

15  deceased human being and also to any person in direct written

16  contractual relationship with licensed cemetery companies.

17         (2)(a)  Except as otherwise provided in s. 497.417 this

18  chapter, every no cemetery company or certificate holder that

19  shall directly or indirectly enters enter into a contract for

20  the sale of personal property or services, excluding burial or

21  interment rights, shall deliver which may be used in a

22  cemetery in connection with disposing of human remains, or

23  commemorating the memory of a deceased human being, if

24  delivery of the personal property or perform performance of

25  the service is to be made more than 120 days after receipt of

26  final payment under the contract of sale, except as provided

27  in s. 497.417.  This shall include, but not be limited to, the

28  sale for future delivery of burial vaults, grave liners, urns,

29  memorials, vases, foundations, memorial bases, and similar

30  merchandise and related services commonly sold or used in

31

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  1  cemeteries and interment fees but excludes excluding burial or

  2  interment rights.

  3         (b)  For the purposes of this section, the term

  4  "deliver" "delivery" means to actually deliver actual delivery

  5  and install installation at the time of need or at the request

  6  of the owner or the owner's agent. Merchandise is not

  7  considered delivered under paragraph (a) if it is stored on

  8  the grounds of the cemetery or at a storage facility except

  9  for monuments, markers, and permanent outer burial receptacles

10  that are stored in a protected environment and are comprised

11  of materials designed to withstand prolonged, protected

12  storage without adversely affecting the structural integrity

13  or aesthetic characteristics of such permanent outer burial

14  receptacles.

15         (c)  In lieu of delivery as required by paragraphs (a)

16  and paragraph (b), for sales to cemetery companies and funeral

17  establishments, and only for such sales, the manufacturer of a

18  permanent outer burial receptacle which meets standards

19  adopted by the board may elect, at its discretion, to comply

20  with the delivery requirements of this section by annually

21  submitting, in writing, evidence of the manufacturer's

22  financial responsibility with the board for its review and

23  approval.  The standards and procedures to establish evidence

24  of financial responsibility shall be those in s. 497.423 or s.

25  497.425, with the manufacturer of permanent outer burial

26  receptacles which meet national industry standards assuming

27  the same rights and responsibilities as those of a

28  certificateholder under s. 497.423 or s. 497.425.

29         (3)  No nonprofit cemetery corporation which has been

30  incorporated and engaged in the cemetery business prior to and

31  continuously since 1915 and which has current care and

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  1  maintenance trust assets exceeding $2 million shall be

  2  required to designate a corporate trustee for its preneed

  3  trust fund.

  4         Section 16.  Subsection (12) of section 497.353,

  5  Florida Statutes, is repealed.

  6         Section 17.  Paragraph (a) of subsection (1) and

  7  paragraph (b) of subsection (2) of section 497.405, Florida

  8  Statutes, are amended to read:

  9         497.405  Certificate of authority required.--

10         (1)(a)  No person, including any cemetery exempt under

11  s. 497.003, may guarantee funeral merchandise or services in

12  the future or offer sell a preneed contract without first

13  having a valid certificate of authority.

14         (2)

15         (b)  The provisions of paragraph (a) do not apply to a

16  any trust company operating pursuant to chapter 660, or to a

17  any national or state bank holding trust powers, or to a

18  federal or state savings and loan association having trust

19  powers which company, bank, or association receives any money

20  in trust pursuant to the sale of a preneed contract.

21         Section 18.  Section 497.413, Florida Statutes, is

22  amended to read:

23         497.413  Preneed Funeral Contract Consumer Protection

24  Trust Fund.--

25         (1)  There is hereby created in the department the

26  Preneed Funeral Contract Consumer Protection Trust Fund to be

27  administered and regulated by the board.

28         (2)  Within 60 days after the end of each calendar

29  quarter, for each preneed contract written during the quarter

30  and not canceled within 30 days after the date of the

31  execution of the contract, each certificateholder, whether

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  1  funding preneed contracts by the sale of insurance or by

  2  establishing a trust pursuant to s. 497.417 or s. 497.429,

  3  shall remit the sum of $2.50 for each preneed contract having

  4  a purchase price of $1,500 or less, and the sum of $5 for each

  5  preneed contract having a purchase price in excess of $1,500;

  6  and each certificateholder utilizing s. 497.423 or s. 497.425

  7  shall remit the sum of $5 for each preneed contract having a

  8  purchase price of $1,500 or less, and the sum of $10 for each

  9  preneed contract having a purchase price in excess of $1,500.

10         (3)  In addition to the amounts specified in subsection

11  (2), each remittance shall contain such other additional

12  information as needed by the board to carry out its

13  responsibilities under this chapter and as prescribed by rule

14  of the board.

15         (4)  All funds received by the board or the department

16  pursuant to this section shall be deposited into the Preneed

17  Funeral Contract Consumer Protection Trust Fund.

18         (5)  All funds received pursuant to s. 497.425 shall be

19  accounted for separately from other funds received pursuant to

20  this section.  The board may adopt rules pursuant to ss.

21  120.536(1) and 120.54 for the distribution of funds received

22  pursuant to s. 497.425.

23         (6)(5)  The amounts remitted for deposit into the

24  Preneed Funeral Contract Consumer Protection Trust Fund shall

25  not be deemed proceeds from the sale of a preneed contract

26  within the meaning of this chapter.

27         (7)(6)  Upon the commencement of a delinquency

28  proceeding pursuant to this chapter against a

29  certificateholder, the board may use up to 50 percent of the

30  balance of the trust fund not already committed to a prior

31  delinquency proceeding or received pursuant to s. 497.425

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  1  solely for the purpose of providing restitution to preneed

  2  contract purchasers and their estates due to a

  3  certificateholder's failure to provide the benefits of a

  4  preneed contract or failure to refund the appropriate

  5  principal amount by reason of cancellation thereof.  The

  6  balance of the trust fund shall be determined as of the date

  7  of the delinquency proceeding.

  8         (8)(7)  In any situation in which a delinquency

  9  proceeding has not commenced, the board may, in its

10  discretion, use the trust fund for the purpose of providing

11  restitution to any consumer, owner, or beneficiary of a

12  preneed contract or similar regulated arrangement under this

13  chapter entered into after June 30, 1977.  If, after

14  investigation, the board determines that a certificateholder

15  has breached a preneed contract by failing to provide benefits

16  or an appropriate refund, or that a provider, who is a former

17  certificateholder or an establishment which has been regulated

18  under this chapter or chapter 470, has sold a preneed contract

19  and has failed to fulfill the arrangement or provide the

20  appropriate refund, and such certificateholder or provider

21  does not provide or does not possess adequate funds to provide

22  appropriate refunds, payments from the trust fund may be

23  authorized by the board. In considering whether payments shall

24  be made or when considering who will be responsible for such

25  payments, the board shall consider whether the

26  certificateholder or previous provider has been acquired by a

27  successor who is or should be responsible for the liabilities

28  of the defaulting entity. With respect to preneed contracts

29  funded by life insurance, payments from the fund shall be

30  made: if the insurer is insolvent, but only to the extent that

31  funds are not available through the liquidation proceeding of

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  1  the insurer; or if the certificateholder is unable to perform

  2  under the contract and the insurance proceeds are not

  3  sufficient to cover the cost of the merchandise and services

  4  contracted for. In no event shall the board approve payments

  5  in excess of the insurance policy limits unless it determines

  6  that at the time of sale of the preneed contract, the

  7  insurance policy would have paid for the services and

  8  merchandise contracted for.  Such monetary relief shall be in

  9  an amount as the board may determine and shall be payable in

10  such manner and upon such conditions and terms as the board

11  may prescribe.  However, with respect to preneed contracts to

12  be funded pursuant to s. 497.417, s. 497.419, s. 497.423, or

13  s. 497.425, any restitution made pursuant to this subsection

14  shall not exceed, as to any single contract or arrangement,

15  the lesser of the gross amount paid under the contract or 4

16  percent of the uncommitted assets of the trust fund.  With

17  respect to preneed contracts funded by life insurance

18  policies, any restitution shall not exceed, as to any single

19  contract or arrangement, the lesser of the face amount of the

20  policy, the actual cost of the arrangement contracted for, or

21  4 percent of the uncommitted assets of the trust fund. The

22  total of all restitutions made to all applicants under this

23  subsection in a single fiscal year shall not exceed the

24  greater of 30 percent of the uncommitted assets of the trust

25  fund as of the end of the most recent fiscal year or $500,000

26  $120,000.  The department may use moneys in the trust fund to

27  contract with independent vendors pursuant to chapter 287 to

28  administer the requirements of this subsection.

29         (9)(8)  All moneys deposited in the Preneed Funeral

30  Contract Consumer Protection Trust Fund together with all

31  accumulated income shall be used only for the purposes

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  1  expressed in this section and shall not be subject to any

  2  liens, charges, judgments, garnishments, or other creditor's

  3  claims against the certificateholder, any trustee utilized by

  4  the certificateholder, any company providing a surety bond as

  5  specified in this chapter, or any purchaser of a preneed

  6  contract.  No preneed contract purchaser shall have any vested

  7  rights in the trust fund.

  8         (10)(9)  If restitution is paid to a preneed contract

  9  purchaser or her or his estate in accordance with this

10  section, the amount of restitution paid shall not exceed the

11  gross amount of the principal payments made by the purchaser

12  on its contract.

13         (11)(10)  Whenever the board makes payments from the

14  trust fund to a purchaser or its estate, the board shall be

15  subrogated to the purchaser's rights under the contract, and

16  any amounts so collected by the board shall be deposited in

17  the Preneed Funeral Contract Consumer Protection Trust Fund.

18         (12)(11)  No person shall make, publish, disseminate,

19  circulate, or place before the public, or cause, directly or

20  indirectly, to be made, published, disseminated, circulated,

21  or placed before the public, in a newspaper, magazine, or

22  other publication, or in the form of a notice, circular,

23  pamphlet, letter, or poster, or over any radio station or

24  television station, or in any other way, any advertisement,

25  announcement, or statement which uses the existence of the

26  Preneed Funeral Contract Consumer Protection Trust Fund for

27  the purpose of sales, solicitation, or inducement to purchase

28  any form of preneed contract covered under this chapter.

29         (13)(12)  Notwithstanding the fee structure in

30  subsection (2), the department shall review the status of the

31  trust fund annually, and if it determines that the uncommitted

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  1  trust fund balance exceeds $1 million, the board may by rule

  2  lower the required payments to the trust fund to an amount not

  3  less than $1 per preneed contract.

  4         Section 19.  Subsections (1) and (5) of section

  5  497.417, Florida Statutes, are amended to read:

  6         497.417  Disposition of proceeds received on

  7  contracts.--

  8         (1)  Any person who is paid, collects, or receives

  9  funds under a preneed contract for funeral services or

10  merchandise or burial services or merchandise shall deposit in

11  this state an amount at least equal to the sum of 70 percent

12  of the purchase price collected for all services sold and

13  facilities rented; 100 percent of the purchase price collected

14  for all cash advance items sold; and 30 percent of the

15  purchase price collected or 110 percent of the wholesale cost,

16  whichever is greater, for each item of merchandise sold. The

17  method of determining wholesale cost shall be established by

18  rule of the board and shall be based upon the

19  certificateholder's stated wholesale cost for the 12-month

20  period beginning July 1 during which the initial deposit to

21  the preneed trust fund for the preneed contract is made.  Such

22  deposits shall be made within 30 days after the end of the

23  calendar month in which payment is received, under the terms

24  of a revocable trust instrument entered into with a trust

25  company operating under chapter 660, a national or state bank

26  holding trust powers, or a state savings and loan association

27  holding having trust powers or a trust company.  The trustee

28  shall take title to the property conveyed to the trust for the

29  purpose of investing, protecting, and conserving it for the

30  certificateholder; collecting income; and distributing the

31  principal and income as prescribed in this chapter.  The

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  1  certificateholder is prohibited from sharing in the discharge

  2  of these responsibilities, except that the certificateholder

  3  may request the trustee to invest in tax-free investments and

  4  may appoint an adviser to the trustee. The trust agreement

  5  shall be submitted to the board for approval and filing.  The

  6  funds shall be held in trust, both as to principal and income

  7  earned thereon, and shall remain intact, except that the cost

  8  of the operation of the trust or trust account authorized by

  9  this section may be deducted from the income earned thereon.

10  The contract purchaser shall have no interest whatsoever in,

11  or power whatsoever over, funds deposited in trust pursuant to

12  this section.  In no event may said funds be loaned to a

13  certificateholder, an affiliate of a certificateholder, or any

14  person directly or indirectly engaged in the burial, funeral

15  home, or cemetery business. Furthermore, the

16  certificateholder's interest in said trust shall not be

17  pledged as collateral for any loans, debts, or liabilities of

18  the certificateholder and shall not be transferred to any

19  person without the prior written approval from the department

20  and the trustee which shall not be unreasonably withheld.

21  Even though the certificateholder shall be deemed and treated

22  as the settlor and beneficiary of said trust for all purposes,

23  all of said trust funds are exempt from all claims of

24  creditors of the certificateholder except as to the claims of

25  the contract purchaser, her or his representative, the board,

26  or the department.

27         (5)  The certificateholder, at her or his election,

28  shall have the right and power, at any time, to revest in it

29  title to no more than 50 percent of the trust assets, or 50

30  percent of its pro rata share thereof, provided it has

31  complied with s. 497.423 or s. 497.425. Notwithstanding

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  1  anything contained in this chapter to the contrary, the

  2  certificateholder, via its election to sell or offer for sale

  3  preneed contracts subject to this section, shall represent and

  4  warrant, and is hereby deemed to have done such, to all

  5  federal and Florida taxing authorities, as well as to all

  6  potential and actual preneed contract purchasers, that s.

  7  497.423 or s. 497.425 is a viable option available to it at

  8  any and all relevant times.  If in the certificateholder's

  9  opinion it does not have the ability to select the financial

10  responsibility alternative of s. 497.423 or s. 497.425, then

11  it shall not have the right to sell or solicit contracts

12  pursuant to this section.

13         Section 20.  Section 497.425, Florida Statutes, is

14  amended to read:

15         497.425  Alternatives to deposits under s. 497.417.--

16         (1)(a)  As an alternative to the requirements of s.

17  497.417 that relate to trust funds, a certificateholder may

18  purchase a surety bond in an amount not less than the

19  aggregate value of outstanding liabilities on undelivered

20  preneed contracts for merchandise and services, so long as the

21  amount secured by the surety bond does not exceed 50 percent

22  of the sum of the amount maintained in trust pursuant to ss.

23  497.417 and 497.429 and the amount secured pursuant to this

24  section.  For the purpose of this section, the term

25  "outstanding liabilities" means the gross replacement or

26  wholesale value of the preneed merchandise and services.  The

27  bond shall be made payable to the State of Florida for the

28  benefit of the board and all purchasers of preneed cemetery

29  merchandise or services.  The bond must be approved by the

30  board.

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  1         (b)  The amount of the bond shall be based on a report

  2  documenting the outstanding liabilities of the

  3  certificateholder and shall be prepared by the

  4  certificateholder using generally accepted accounting

  5  principles and signed by the certificateholder's chief

  6  financial officer.

  7         (c)  The report shall be compiled as of the end of the

  8  certificateholder's fiscal year and updated annually.  The

  9  amount of the bond shall be increased or decreased as

10  necessary to correlate with changes in the outstanding

11  liabilities.

12         (d)  If a certificateholder fails to maintain a bond

13  pursuant to this section, the certificateholder shall cease

14  the sale of preneed merchandise and services until another

15  form of security is provided to the board. At no time shall

16  outstanding liabilities be unsecured.

17         (2)  Upon prior approval by the board, the

18  certificateholder may file a letter of credit with the board

19  in lieu of a surety bond.  Such letter of credit must be in a

20  form, and is subject to terms and conditions, prescribed by

21  the board. It may be revoked only with the express approval of

22  the board.

23         (3)(a)  A buyer of preneed merchandise or services who

24  does not receive such services or merchandise due to the

25  economic failure, closing, or bankruptcy of the

26  certificateholder must file a claim with the surety as a

27  prerequisite to payment of the claim and, if the claim is not

28  paid, may bring an action based on the bond and recover

29  against the surety.  The buyer's claim shall not exceed the

30  amount paid to the certificateholder under the preneed

31  contract.  In the case of a letter of credit or cash deposit

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  1  that has been filed with the board, the buyer may file a claim

  2  with the board.

  3         (b)  In order to qualify for recovery on any claim with

  4  the surety under paragraph (a), the buyer must file the claim

  5  no later than 1 year after the date on which the merchandise

  6  and services contracted for under the preneed contract with

  7  the certificateholder have been fully provided by another

  8  certificateholder closed or bankruptcy was filed.

  9         (c)  The board may file a claim with the surety on

10  behalf of any buyer under paragraph (a).  The surety shall pay

11  the amount of the claims to the board for distribution to

12  claimants entitled to restitution and shall be relieved of

13  liability to that extent.  Any amount received by the board

14  pursuant to this section shall be deposited in the Preneed

15  Funeral Contract Consumer Protection Trust Fund and

16  distributed pursuant to s. 497.413(5).

17         (d)  The liability of the surety under any bond may not

18  exceed the aggregate amount of the bond, regardless of the

19  number or amount of claims filed.

20         (e)  If the total value of the claims filed exceeds the

21  amount of the bond, the surety shall pay the amount of the

22  bond to the board for distribution to claimants entitled to

23  restitution in accordance with s. 497.413 and shall be

24  relieved of all liability under the bond.

25         (4)  The certificateholder shall maintain accurate

26  records of the bond and premium payments on it, which records

27  shall be open to inspection by the board.

28         (5)  For purposes of this section, a preneed contract

29  is a contract calling for the delivery of merchandise and

30  services in the future and entered into before the death of

31  the prospective recipient.

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  1         (6)  This act does not relieve the certificateholder or

  2  other entity from liability for nonperformance of contractual

  3  terms unless the certificateholder cannot deliver the

  4  merchandise or services because of a national emergency,

  5  strike, or act of God.

  6         (7)  The board may require the holder of any assets of

  7  the certificateholder to furnish written verification of the

  8  financial report required to be submitted by the

  9  certificateholder or other entity.

10         (8)  Any preneed contract which promises future

11  delivery of merchandise at no cost constitutes a paid-up

12  contract. Merchandise which has been delivered is not covered

13  by the required performance bond or letter of credit even

14  though the contract is not completely paid.  The

15  certificateholder may not cancel a contract unless the

16  purchaser is in default according to the terms of the

17  contract.  A contract sold, discounted, and transferred to a

18  third party constitutes a paid-up contract for the purposes of

19  the performance bond or letter of credit.

20         (9)  Each contract must state the type, size, and

21  design of merchandise and the description of service to be

22  delivered or performed.

23         (10)  A purchaser and a certificateholder who are

24  parties to a preneed contract executed prior to July 2, 1988,

25  may enter into an amended preneed contract which is made

26  subject to this section.

27         (11)  The board may adopt forms and rules necessary to

28  implement this section, including, but not limited to, rules

29  which ensure that the surety bond and line of credit provide

30  liability coverage for preneed merchandise and services.

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  1         Section 21.  Subsections (2) and (7) of section

  2  497.429, Florida Statutes, are amended to read:

  3         497.429  Alternative preneed contracts.--

  4         (2)  The contract must require that a trust be

  5  established by the certificateholder on behalf of, and for the

  6  use, benefit, and protection of, the purchaser and that the

  7  trustee must be a national or state bank holding trust powers,

  8  or a federal or state savings and loan association having

  9  trust powers, or a trust company operating under chapter 660

10  with the same powers of investment as provided elsewhere in

11  this chapter.

12         (7)  Disbursement of funds discharging any preneed

13  contract shall be made by the trustee to the person issuing or

14  writing such contract upon receipt of a certified copy of the

15  death certificate of the contract beneficiary or and evidence

16  satisfactory to the trustee that the preneed contract has been

17  fully performed. In the event of any contract default or

18  cancellation by the contract purchaser, or in the event that

19  the funeral merchandise or service contracted for is not

20  provided or is not desired by the purchaser or the heirs or

21  personal representative of the contract beneficiary, the

22  trustee shall return, within 30 days after its receipt of a

23  written request therefor, funds paid on the contract to the

24  contract purchaser or to her or his assigns, heirs, or

25  personal representative, subject to the lawful liquidation

26  damage provision in the contract.

27         Section 22.  Subsection (1) of section 470.002, Florida

28  Statutes, is amended to read:

29         470.002  Definitions.--As used in this chapter:

30         (1)  "Department" means the Department of Banking and

31  Finance Business and Professional Regulation.

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  1         Section 23.  Effective January 1, 2002, subsection (2)

  2  of section 470.002, Florida Statutes, is amended to read:

  3         470.002  Definitions.--As used in this chapter:

  4         (2)  "Board" means the Board of Funeral Directors, and

  5  Embalmers, and Cemetery Services created in chapter 497.

  6         Section 24.  Effective January 1, 2002, subsections (1)

  7  and (4) of section 470.003, Florida Statutes, are amended to

  8  read:

  9         470.003  Board of Funeral Directors and Embalmers;

10  membership; appointment; terms.--

11         (1)  The Board of Funeral Directors and Embalmers is

12  created within the Department of Banking and Finance Business

13  and Professional Regulation and shall consist of seven members

14  appointed by the Governor and confirmed by the Senate.

15         (4)  Notwithstanding provisions of chapter 455 to the

16  contrary, chapter 455 applies to the department and the Board

17  of Funeral Directors and Embalmers as if the department were

18  the Department of Business and Professional Regulation All

19  provisions of chapter 455 and s. 20.165 relating to activities

20  of regulatory boards shall apply.

21         Section 25.  Effective January 1, 2002, all of the

22  records, personnel, property, and unexpended balances of

23  appropriations, allocations, or other funds for the

24  administration of chapter 470, Florida Statutes, shall be

25  transferred by a type two transfer as defined in section

26  20.06(2), Florida Statutes, from the Department of Business

27  and Professional Regulation to the Department of Banking and

28  Finance.

29         Section 26.  Effective January 1, 2002, section

30  470.0396, Florida Statutes, is created to read:

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  1         470.0396  Notwithstanding provisions to the contrary in

  2  chapter 455, all applicable provisions of chapter 455 apply to

  3  the Board of Funeral Directors, Embalmers, and Cemetery

  4  Services and to the Department of Banking and Finance as if

  5  the Department of Banking and Finance were the Department of

  6  Business and Professional Regulation with respect to the

  7  administration of chapter 470 to the extent that no conflict

  8  exists with the general provisions creating the board under

  9  chapter 497.

10         Section 27.  The transfer of regulatory authority over

11  chapter 470, Florida Statutes, provided by this act shall not

12  affect the validity of any judicial or administrative

13  proceeding pending as of June 30, 2001, and the Department of

14  Banking and Finance shall be substituted for the Department of

15  Business and Professional Regulation as a party in interest.

16         Section 28.  Notwithstanding the transfer of regulatory

17  authority over chapter 470, Florida Statutes, provided by this

18  act, all licenses and registrations issued pursuant to chapter

19  470, Florida Statutes, which are valid on June 30, 2001, shall

20  remain in effect subject to the provisions of chapter 470,

21  Florida Statutes.

22         Section 29.  Effective January 1, 2002, section

23  470.003, Florida Statutes, is repealed.

24         Section 30.  Except as otherwise expressly provided in

25  this act, this act shall take effect July 1, 2001.

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  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3
      Revises various provisions of ch. 497, F.S., relating to
  4    funeral and cemetery services.  Provides and revises
      definitions.  Increases minimum acreage requirements to
  5    establish a cemetery company.  Eliminates need
      determinations for new cemeteries.  Revises experience
  6    requirements for the general manager of a cemetery
      company.  Authorizes care and maintenance trust funds to
  7    be established with a federal savings and loan
      association holding trust powers in this state.  Revises
  8    provisions establishing the percentage of payments for
      burial rights to be deposited in care and maintenance
  9    trust funds.  Requires cemetery companies to disclose to
      purchasers the month and year of scheduled completion of
10    units of mausoleums, columbaria, or belowground crypts
      under construction.  Applies recordkeeping requirements
11    to certificateholders.  Revises provisions relating to
      prohibition on the sale of personal property and
12    services.  Requires a certificate of authority to
      guarantee funeral merchandise or services in the future
13    or offer a preneed contract.  Provides for separate
      accounting of funds in the Preneed Funeral Contract
14    Consumer Protection Trust Fund that were received from
      bond sureties under certain circumstances.  Authorizes
15    the Board of Funeral and Cemetery Services to adopt rules
      for the distribution of such separated funds.  Revises
16    the total amount of restitutions that may be made from
      the trust fund in any fiscal year to certain applicants.
17    Provides a restriction on the amount of trust assets of a
      preneed contract a certificateholder may revest title to.
18    Revises provisions relating to financial responsibility
      alternatives to the placing in trust of preneed contract
19    funds to revise the amount required to be secured by a
      surety bond, authorize the sale of preneed merchandise
20    and services under other forms of security, revise
      requirements relating to the filing of claims with such
21    sureties, provide for deposit in the Preneed Funeral
      Contract Consumer Protection Trust Fund of sums received
22    by the board from sureties for payment to claimants, and
      provide for payment to such claimants from the trust
23    fund.  Revises requirements for disbursement of trust
      funds discharging or refunding a preneed contract.
24    Provides for future transfer of all records, personnel,
      property, and unexpended balances of appropriations,
25    allocations, or other funds for the administration of ch.
      470, F.S., relating to funeral directing, embalming, and
26    direct disposition, from the Department of Business and
      Professional Regulation to the Department of Banking and
27    Finance.  Preserves the validity of judicial and
      administrative proceedings pending at the time of such
28    transfer and the validity of licenses and registrations
      in effect at the time of such transfer.  Provides for
29    redefinition of the term "department" as used in ch. 470,
      F.S., and for placement of the Board of Funeral Directors
30    and Embalmers within the Department of Banking and
      Finance at such future date, to conform.  Requires the
31    Department of Banking and Finance to submit to the
      Governor, the President of the Senate, and the Speaker of
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  1    the House of Representatives a report on the impact of
      merging the Board of Funeral Directors and Embalmers with
  2    the Board of Funeral and Cemetery Services, including
      proposed legislation providing for the merger. (See bill
  3    for details.)

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