Florida Senate - 2016 COMMITTEE AMENDMENT
Bill No. SB 854
Ì953794RÎ953794
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/11/2016 .
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The Committee on Banking and Insurance (Hukill) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 112 - 861
4 and insert:
5 (67) “Purchaser” means a person who executes a preneed or
6 an at-need contract with a licensee for merchandise or services.
7 (77) “Total return withdrawal percentage” means a
8 percentage, not to exceed 5 percent, of the fair market value of
9 a trust.
10 Section 2. Subsections (2) and (11) of section 497.141,
11 Florida Statutes, are amended to read:
12 497.141 Licensing; general application procedures.—
13 (2) Any person desiring to be licensed shall apply to the
14 licensing authority in writing using such forms and procedures
15 as may be prescribed by rule. The application for licensure
16 shall include the applicant’s social security number if the
17 applicant is a natural person; otherwise, the applicant’s
18 federal tax identification number shall be included.
19 Notwithstanding any other provision of law, the department is
20 the sole authority for determining the forms and form contents
21 to be submitted for initial licensure and licensure renewal
22 application. Such forms and the information and materials
23 required by such forms may include, as appropriate,
24 demographics, education, work history, personal background,
25 criminal history, finances, business information, signature
26 notarization, performance periods, reciprocity, local government
27 approvals, supporting documentation, periodic reporting
28 requirements, fingerprint requirements, continuing education
29 requirements, business plans, character references, e-mail
30 addresses, and ongoing education monitoring. Such forms and the
31 information and materials required by such forms may also
32 include, to the extent such information or materials are not
33 already in the possession of the department or the board,
34 records or information as to complaints, inspections,
35 investigations, discipline, and bonding. The application shall
36 be supplemented as needed to reflect any material change in any
37 circumstance or condition stated in the application that takes
38 place between the initial filing of the application and the
39 final grant or denial of the license and that might affect the
40 decision of the department or the board. After an application by
41 a natural person for licensure under this chapter is approved,
42 the licensing authority may require the successful applicant to
43 provide a photograph of himself or herself for permanent
44 lamination onto the license card to be issued to the applicant,
45 pursuant to rules and fees adopted by the licensing authority.
46 (11) The department shall implement a system for
47 administration of the overall licensing process, including e
48 mail notification for the processing and tracking of
49 applications for licensure, the issuance of licenses approved by
50 the board, the tracking of licenses issued, the administration
51 of the license renewal process, and the collection and
52 processing of fees related to those activities. The system may
53 use staff and facilities of the department or the department may
54 enter into a contract for all or any part of such system, upon
55 such terms and conditions as the department deems advisable, and
56 such contract may be with another government agency or a private
57 business.
58 Section 3. Section 497.146, Florida Statutes, is amended to
59 read:
60 497.146 Licensing; address of record; changes; licensee
61 responsibility.—Each licensee under this chapter is responsible
62 for notifying the department in writing of the licensee’s
63 current e-mail address, business and residence mailing address,
64 and the street address of the licensee’s primary place of
65 practice and shall notify the department in writing within 30
66 days after any change in such information, in accordance with
67 procedures and forms prescribed by rule. Notwithstanding any
68 other provision of law, electronic notification service by
69 regular mail to a licensee’s last known e-mail address of record
70 or preferred street address of record with the department
71 constitutes adequate and sufficient notice to the licensee for
72 any official communication to the licensee by the board or the
73 department, except when other service is expressly required by
74 this chapter. The department may adopt rules, forms, and
75 procedures, including a procedure for electronic reporting of
76 the data provided pursuant to this section. Rules may be adopted
77 establishing forms and procedures for licensees to provide the
78 notice required by this section.
79 Section 4. Paragraphs (b) and (e) of subsection (8),
80 paragraph (d) of subsection (12), paragraphs (b) and (c) of
81 subsection (14), and paragraph (b) of subsection (15) of section
82 497.152, Florida Statutes, are amended to read:
83 497.152 Disciplinary grounds.—This section sets forth
84 conduct that is prohibited and that shall constitute grounds for
85 denial of any application, imposition of discipline, or other
86 enforcement action against the licensee or other person
87 committing such conduct. For purposes of this section, the
88 requirements of this chapter include the requirements of rules
89 adopted under authority of this chapter. No subsection heading
90 in this section shall be interpreted as limiting the
91 applicability of any paragraph within the subsection.
92 (8) TRANSPORT, CUSTODY, TREATMENT, OR DISINTERMENT OF HUMAN
93 REMAINS.—
94 (b) Refusing to surrender promptly the custody of a dead
95 human body upon the express order of the person legally
96 authorized person to such person’s its custody; however, this
97 provision shall be subject to any state or local laws or rules
98 governing custody or transportation of dead human bodies.
99 (e) Failing to obtain written authorization from a legally
100 authorized person before the family or next of kin of the
101 deceased prior to entombment, interment, disinterment,
102 disentombment, or disinurnment of the remains of any human
103 being.
104 (12) DISCLOSURE REQUIREMENTS.—
105 (d) Failure by a funeral director to make full disclosure
106 in the case of a funeral or direct disposition with regard to
107 the use of funeral merchandise that is not to be disposed of
108 with the body or failure to obtain written permission from a
109 legally authorized person the purchaser regarding disposition of
110 such merchandise.
111 (14) OBLIGATIONS REGARDING COMPLAINTS AND CLAIMS BY
112 CUSTOMERS.—
113 (b) Committing or performing with such frequency as to
114 indicate a general business practice any of the following:
115 1. Failing to acknowledge and act promptly upon
116 communications from a licensee’s customers and their
117 representatives with respect to claims or complaints relating to
118 the licensee’s activities regulated by this chapter.
119 2. Denying claims or rejecting complaints received by a
120 licensee from a customer or customer’s representative, relating
121 to the licensee’s activities regulated by this chapter, without
122 first conducting reasonable investigation based upon available
123 information.
124 3. Attempting to settle a claim or complaint on the basis
125 of a material document that was altered without notice to, or
126 without the knowledge or consent of, the contract purchaser or a
127 legally authorized person her or his representative or legal
128 guardian.
129 4. Failing within a reasonable time to affirm or deny
130 coverage of specified services or merchandise under a contract
131 entered into by a licensee upon written request of the contract
132 purchaser or a legally authorized person her or his
133 representative or legal guardian.
134 5. Failing to promptly provide, in relation to a contract
135 for funeral or burial merchandise or services entered into by
136 the licensee or under the licensee’s license, a reasonable
137 explanation to the contract purchaser or a legally authorized
138 person her or his representative or legal guardian of the
139 licensee’s basis for denying or rejecting all or any part of a
140 claim or complaint submitted.
141 (c) Making a material misrepresentation to a contract
142 purchaser or a legally authorized person her or his
143 representative or legal guardian for the purpose and with the
144 intent of effecting settlement of a claim or complaint or loss
145 under a prepaid contract on less favorable terms than those
146 provided in, and contemplated by, the prepaid contract.
147
148 For purposes of this subsection, the response of a customer
149 recorded by the customer on a customer satisfaction
150 questionnaire or survey form sent to the customer by the
151 licensee, and returned by the customer to the licensee, shall
152 not be deemed to be a complaint.
153 (15) MISCELLANEOUS FINANCIAL MATTERS.—
154 (b) Failing to timely remit as required by this chapter the
155 required amounts to any trust fund required by this chapter. The
156 board shall may by rule provide criteria for identifying minor,
157 nonwillful trust remittance deficiencies; and remittance
158 deficiencies falling within such criteria, if fully corrected
159 within 30 days after notice to the licensee by the department,
160 do shall not constitute grounds for disciplinary action or a
161 fine.
162 Section 5. Paragraph (g) is added to subsection (1) of
163 section 497.161, Florida Statutes, to read:
164 497.161 Other rulemaking provisions.—
165 (1) In addition to such other rules as are authorized or
166 required under this chapter, the following additional rules, not
167 inconsistent with this chapter, shall be authorized by the
168 licensing authority.
169 (g) Rules, not inconsistent with part IV of this chapter
170 and the Florida Insurance Code, establishing conditions of use
171 for insurance as a funding mechanism for preneed contracts.
172 Section 6. Subsections (3) and (4) of section 497.266,
173 Florida Statutes, are amended to read:
174 497.266 Care and maintenance trust fund; remedy of
175 department for noncompliance.—
176 (3) A No person may not withdraw or transfer any portion of
177 assets within the corpus of the care and maintenance trust fund,
178 except as authorized by s. 497.2675, without first obtaining
179 written consent from the licensing authority.
180 (4) The trustee of the trust established pursuant to this
181 section may only invest in investments and loan trust funds, as
182 prescribed in s. 497.458. The trustee shall take title to the
183 property conveyed to the trust for the purposes of investing,
184 protecting, and conserving it for the cemetery company;
185 collecting income; and distributing withdrawals from the trust
186 the principal and income as prescribed in this chapter. The
187 cemetery company is prohibited from sharing in the discharge of
188 the trustee’s responsibilities under this subsection, except
189 that the cemetery company may request the trustee to invest in
190 tax-free investments.
191 Section 7. Section 497.267, Florida Statutes, is amended to
192 read:
193 497.267 Disposition of withdrawals from the income of care
194 and maintenance trust fund; notice to purchasers and
195 depositors.—Withdrawals from the net income of the care and
196 maintenance trust fund shall be used solely for the care and
197 maintenance of the cemetery, including maintenance of monuments,
198 which maintenance may shall not be deemed to include the
199 cleaning, refinishing, repairing, or replacement of monuments;
200 for reasonable costs of administering the care and maintenance;
201 and for reasonable costs of administering the trust fund. At the
202 time of making a sale or receiving an initial deposit, the
203 cemetery company shall deliver to the person to whom the sale is
204 made, or who makes a deposit, a written instrument which shall
205 specifically state the purposes for which withdrawals from the
206 income of the trust fund shall be used.
207 Section 8. Section 497.2675, Florida Statutes, is created
208 to read:
209 497.2675 Withdrawal methods from the care and maintenance
210 trust fund.—
211 (1) The board shall adopt rules, with the approval of the
212 department, to administer ss. 497.267 and 497.268, including,
213 but not limited to:
214 (a) Reporting requirements for a cemetery licensed under
215 this chapter, including the requirement that specific reports be
216 made on forms designed and approved by the board by rule.
217 (b) Rules to address a cemetery licensed under this chapter
218 whose pro rata share of the fair market value of the trust has
219 not grown over a 3-year average, including limiting withdrawals
220 from the care and maintenance trust fund, and any exceptions
221 approved by the board.
222 (2) Each cemetery company licensed under this chapter shall
223 elect one of two withdrawal methods, as specified in paragraphs
224 (a) and (b), for withdrawals from the cemetery company’s care
225 and maintenance trust fund. The board shall adopt rules, with
226 the approval of the department, to administer this subsection.
227 (a) Net income withdrawal method.—Net income may be
228 withdrawn from the trust, as earned, on a monthly basis.
229 (b) Total return withdrawal method.—The licensee shall
230 multiply the average fair market value of its pro rata share of
231 the trust by the total return withdrawal percentage and may
232 withdraw one-fourth of that amount at least quarterly beginning
233 the first quarter of the new trust year. The initial total
234 return withdrawal percentage elected by the licensee may not
235 increase the total return withdrawal percentage for that
236 quarter. For purposes of this paragraph, “average fair market
237 value” means, in relation to a trust, the average of the fair
238 market value of each asset held by the trust at the beginning of
239 the current year and in each of the 2 previous years, or for the
240 entire term of the trust if there are less than 2 previous
241 years, and adjusted as follows:
242 1. If assets are added to the trust during the years used
243 to determine the average, the amount of each addition is added
244 to all years in which such addition is not included.
245 2. If assets are distributed from the trust during the
246 years used to determine the average, other than in satisfaction
247 of the unitrust amount, as defined in s. 738.1041, the amount of
248 each distribution is subtracted from all other years in which
249 such distribution is not included.
250 (3) Without regard to the withdrawal method selected, taxes
251 on capital gains, if any, must be paid from the trust principal.
252 Section 9. Paragraphs (a) and (b) of subsection (1) and
253 subsection (2) of section 497.268, Florida Statutes, are amended
254 to read:
255 497.268 Care and maintenance trust fund, percentage of
256 payments for burial rights to be deposited.—
257 (1) Each cemetery company shall set aside and deposit in
258 its care and maintenance trust fund the following percentages or
259 amounts for all sums received from sales of burial rights:
260 (a) For burial rights, 10 percent of all payments received;
261 however, for sales made after September 30, 1993, no deposit
262 shall be less than $25 per burial right grave. For each burial
263 right which is provided without charge, the deposit to the fund
264 shall be $25.
265 (b) For mausoleums or columbaria, 10 percent of payments
266 received.
267 (2) Deposits to the care and maintenance trust fund shall
268 be made by the cemetery company not later than 30 days following
269 the close of the calendar month in which any payment was
270 received; however, when such payments are received in
271 installments, the percentage of the installment payment placed
272 in trust must be identical to the percentage which the payment
273 received bears to the total cost for the burial rights. Trust
274 income may be used to pay for all usual and customary services
275 for the operation of a trust account, including, but not limited
276 to: reasonable trustee and custodian fees, investment adviser
277 fees, allocation fees, and taxes. If the net income is not
278 sufficient to pay the fees and other expenses, the fees and
279 other expenses shall be paid by the cemetery company. Capital
280 gains taxes shall be paid from the corpus.
281 Section 10. Section 497.269, Florida Statutes, is amended
282 to read:
283 497.269 Care and maintenance trust fund; financial
284 reports.—On or before April 1 of each year, the trustee shall
285 furnish adequate financial reports that record the fair market
286 value with respect to the care and maintenance trust fund
287 utilizing forms and procedures specified by rule. However, the
288 department may require the trustee to make such additional
289 financial reports as it deems necessary. In order to ensure that
290 the proper deposits to the trust fund have been made, the
291 department shall examine the status of the trust fund of the
292 company on a semiannual basis for the first 2 years of the trust
293 fund’s existence.
294 Section 11. Subsection (4) of section 497.273, Florida
295 Statutes, is amended to read:
296 497.273 Cemetery companies; authorized functions.—
297 (4) This chapter does not prohibit the interment or
298 entombment of the inurned cremated animal remains of the
299 decedent’s pet or pets with the decedent’s human remains or
300 cremated human remains if:
301 (a) The human remains or cremated human remains are not
302 commingled with the inurned cremated animal remains; and
303 (b) The interment or entombment with the inurned cremated
304 animal remains is with the authorization of a the decedent or
305 other legally authorized person.
306 Section 12. Subsection (1) of section 497.274, Florida
307 Statutes, is amended to read:
308 497.274 Standards for grave spaces.—
309 (1) A standard adult grave space shall measure at least 42
310 inches in width and 96 inches in length, except for preinstalled
311 vaults in designated areas. For interments, except cremated
312 remains, the covering soil shall measure no less than 12 inches
313 from the top of the outer burial container at time of interment,
314 unless such level of soil is not physically possible. In any
315 interment, a legally authorized person the family or next of kin
316 may waive the 12-inch coverage minimum.
317 Section 13. Subsection (2) of section 497.277, Florida
318 Statutes, is amended to read:
319 497.277 Other charges.—Other than the fees for the sale of
320 burial rights, burial merchandise, and burial services, no other
321 fee may be directly or indirectly charged, contracted for, or
322 received by a cemetery company as a condition for a customer to
323 use any burial right, burial merchandise, or burial service,
324 except for:
325 (2) Charges paid for transferring burial rights from one
326 purchaser to another, as determined by rule of the board;
327 however, no such fee may exceed $50.
328 Section 14. Paragraph (c) of subsection (2) of section
329 497.283, Florida Statutes, is amended to read:
330 497.283 Prohibition on sale of personal property or
331 services.—
332 (2)
333 (c) In lieu of delivery as required by paragraph (b), for
334 sales to cemetery companies and funeral establishments, and only
335 for such sales, the manufacturer of a permanent outer burial
336 receptacle which meets standards adopted by rule may elect, at
337 its discretion, to comply with the delivery requirements of this
338 section by annually submitting for approval pursuant to
339 procedures and forms as specified by rule, in writing, evidence
340 of the manufacturer’s financial responsibility with the
341 licensing authority for its review and approval. The standards
342 and procedures to establish evidence of financial responsibility
343 shall be those in s. 497.461, with the manufacturer of permanent
344 outer burial receptacles which meet national industry standards
345 assuming the same rights and responsibilities as those of a
346 preneed licensee under s. 497.461.
347 Section 15. Subsection (3) of section 497.286, Florida
348 Statutes, is amended to read:
349 497.286 Owners to provide addresses; presumption of
350 abandonment; abandonment procedures; sale of abandoned unused
351 burial rights.—
352 (3) Upon the occurrence of a presumption of abandonment as
353 set forth in subsection (2), a cemetery may file with the
354 department a certified notice attesting to the abandonment of
355 the burial rights. The notice shall do the following:
356 (a) Describe the burial rights certified to have been
357 abandoned;
358 (b) Set forth the name of the owner or owners of the burial
359 rights, or if the owner is known to the cemetery to be deceased,
360 then the names, if known to the cemetery, of such claimants as
361 are heirs at law, next of kin, or specific devisees under the
362 will of the owner or the legally authorized person;
363 (c) Detail the facts with respect to the failure of the
364 owner or survivors as outlined in this section to keep the
365 cemetery informed of the owner’s address for a period of 50
366 consecutive years or more; and
367 (d) Certify that no burial right has been exercised which
368 is held in common ownership with any abandoned burial rights as
369 set forth in subsection (2).
370 Section 16. Section 497.371, Florida Statutes, is amended
371 to read:
372 497.371 Embalmers; establishment of embalmer apprentice
373 program.—The licensing authority adopts rules establishing an
374 embalmer apprentice program. An embalmer apprentice may perform
375 only those tasks, functions, and duties relating to embalming
376 which are performed under the direct supervision of an embalmer
377 who has an active, valid license under s. 497.368 or s. 497.369.
378 An embalmer apprentice is shall be eligible to serve in an
379 apprentice capacity for a period not to exceed 3 years as may be
380 determined by licensing authority rule or for a period not to
381 exceed 5 years if the apprentice is enrolled in and attending a
382 course in mortuary science or funeral service education at any
383 mortuary college or funeral service education college or school.
384 An embalmer apprentice shall be issued a license licensed upon
385 payment of a licensure fee as determined by licensing authority
386 rule but not to exceed $200. An applicant for the embalmer
387 apprentice program may not be issued a license unless the
388 licensing authority determines that the applicant is of good
389 character and has not demonstrated a history of lack of
390 trustworthiness or integrity in business or professional
391 matters.
392 Section 17. Paragraph (b) of subsection (1) of section
393 497.372, Florida Statutes, is amended to read:
394 497.372 Funeral directing; conduct constituting practice of
395 funeral directing.—
396 (1) The practice of funeral directing shall be construed to
397 consist of the following functions, which may be performed only
398 by a licensed funeral director:
399 (b) Planning or arranging, on an at-need basis, the details
400 of funeral services, embalming, cremation, or other services
401 relating to the final disposition of human remains, including
402 the removal of such remains from the state, with the family or
403 friends of the decedent or any other person responsible for such
404 services; setting the time of the services; establishing the
405 type of services to be rendered; acquiring the services of the
406 clergy; and obtaining vital information for the filing of death
407 certificates and obtaining of burial transit permits.
408 Section 18. Subsection (4) of section 497.381, Florida
409 Statutes, is amended to read:
410 497.381 Solicitation of goods or services.—
411 (4) At-need solicitation of funeral merchandise or services
412 is prohibited. A No funeral director or direct disposer or her
413 or his agent or representative may not contact the legally
414 authorized person or family or next of kin of a deceased person
415 to sell services or merchandise unless the funeral director or
416 direct disposer or her or his agent or representative has been
417 initially called or contacted by the legally authorized person
418 or family or next of kin of such person and requested to provide
419 her or his services or merchandise.
420 Section 19. Paragraph (c) of subsection (2) of section
421 497.452, Florida Statutes, is amended to read:
422 497.452 Preneed license required.—
423 (2)
424 (c) The provisions of paragraph (a) do not apply to any
425 Florida corporation existing under chapter 607 acting as a
426 servicing agent hereunder in which the stock of such corporation
427 is held by 100 or more persons licensed pursuant to part III of
428 this chapter, provided no one stockholder holds, owns, votes, or
429 has proxies for more than 5 percent of the issued stock of such
430 corporation; provided the corporation has a blanket fidelity
431 bond, covering all employees handling the funds, in the amount
432 of $50,000 or more issued by a licensed insurance carrier in
433 this state; and provided the corporation processes the funds
434 directly to and from the trustee within the applicable time
435 limits set forth in this chapter. The department may require any
436 person claiming that the provisions of this paragraph exempt it
437 from the provisions of paragraph (a) to demonstrate to the
438 satisfaction of the department that it meets the requirements of
439 this paragraph.
440 Section 20. Subsections (1) and (3) of section 497.454,
441 Florida Statutes, are amended to read:
442 497.454 Approval of preneed contract and related forms.—
443 (1) Preneed contract forms and related forms shall be filed
444 with and approved by the licensing authority before prior to
445 use, pursuant to procedures specified by rule. The licensing
446 authority may not approve any electronic or paper preneed
447 contract form that does not provide for sequential prenumbering
448 thereon.
449 (3) Specific disclosure regarding the preneed licensee’s
450 ability to select either trust funding or the financial
451 responsibility alternative as set forth in s. 497.461 in
452 connection with the receipt of preneed contract proceeds is
453 required in the preneed contract.
454 Section 21. Subsections (2), (7), and (8) of section
455 497.456, Florida Statutes, are amended to read:
456 497.456 Preneed Funeral Contract Consumer Protection Trust
457 Fund.—
458 (2) Within 60 days after the end of each calendar quarter,
459 for each preneed contract written during the quarter and not
460 canceled within 30 days after the date of the execution of the
461 contract, each preneed licensee, whether funding preneed
462 contracts by the sale of insurance or by establishing a trust
463 pursuant to s. 497.458 or s. 497.464, shall remit the sum of
464 $2.50 for each preneed contract having a purchase price of
465 $1,500 or less, and the sum of $5 for each preneed contract
466 having a purchase price in excess of $1,500; and each preneed
467 licensee utilizing s. 497.461 or s. 497.462 shall remit the sum
468 of $5 for each preneed contract having a purchase price of
469 $1,500 or less, and the sum of $10 for each preneed contract
470 having a purchase price in excess of $1,500.
471 (7) In any situation in which a delinquency proceeding has
472 not commenced, the licensing authority may, in its discretion,
473 use the trust fund for the purpose of providing restitution to
474 any consumer, owner, or beneficiary of a preneed contract or
475 similar regulated arrangement under this chapter entered into
476 after June 30, 1977. If, after investigation, the licensing
477 authority determines that a preneed licensee has breached a
478 preneed contract by failing to provide benefits or an
479 appropriate refund, or that a provider, who is a former preneed
480 licensee or an establishment which has been regulated under this
481 chapter, has sold a preneed contract and has failed to fulfill
482 the arrangement or provide the appropriate refund, and such
483 preneed licensee or provider does not provide or does not
484 possess adequate funds to provide appropriate refunds, payments
485 from the trust fund may be authorized by the licensing
486 authority. In considering whether payments shall be made or when
487 considering who will be responsible for such payments, the
488 licensing authority shall consider whether the preneed licensee
489 or previous provider has been acquired by a successor who is or
490 should be responsible for the liabilities of the defaulting
491 entity. With respect to preneed contracts funded by life
492 insurance, payments from the fund shall be made: if the insurer
493 is insolvent, but only to the extent that funds are not
494 available through the liquidation proceeding of the insurer; or
495 if the preneed licensee is unable to perform under the contract
496 and the insurance proceeds are not sufficient to cover the cost
497 of the merchandise and services contracted for. In no event
498 shall the licensing authority approve payments in excess of the
499 insurance policy limits unless it determines that at the time of
500 sale of the preneed contract, the insurance policy would have
501 paid for the services and merchandise contracted for. Such
502 monetary relief shall be in an amount as the licensing authority
503 may determine and shall be payable in such manner and upon such
504 conditions and terms as the licensing authority may prescribe.
505 However, with respect to preneed contracts to be funded pursuant
506 to s. 497.458, s. 497.459, s. 497.461, or s. 497.462, any
507 restitution made pursuant to this subsection may shall not
508 exceed, as to any single contract or arrangement, the lesser of
509 the gross amount paid under the contract or 4 percent of the
510 uncommitted assets of the trust fund. With respect to preneed
511 contracts funded by life insurance policies, any restitution may
512 shall not exceed, as to any single contract or arrangement, the
513 lesser of the face amount of the policy, the actual cost of the
514 arrangement contracted for, or 4 percent of the uncommitted
515 assets of the trust fund. The total of all restitutions made to
516 all applicants under this subsection in a single fiscal year may
517 shall not exceed the greater of 30 percent of the uncommitted
518 assets of the trust fund as of the end of the most recent fiscal
519 year or $120,000. The department may use moneys in the trust
520 fund to contract with independent vendors pursuant to chapter
521 287 to administer the requirements of this subsection.
522 (8) All moneys deposited in the Preneed Funeral Contract
523 Consumer Protection Trust Fund together with all accumulated
524 appreciation income shall be used only for the purposes
525 expressly authorized by this chapter and may shall not be
526 subject to any liens, charges, judgments, garnishments, or other
527 creditor’s claims against the preneed licensee, any trustee
528 utilized by the preneed licensee, any company providing a surety
529 bond as specified in this chapter, or any purchaser of a preneed
530 contract. No preneed contract purchaser shall have any vested
531 rights in the trust fund.
532 Section 22. Paragraphs (a), (b), (d), and (f) of subsection
533 (1) of section 497.458, Florida Statutes, are amended, a new
534 paragraph (j) is added to that subsection, and paragraph (a) of
535 subsection (3), subsection (4), paragraphs (a) and (c) of
536 subsection (5), and subsections (6) through (9) of that section
537 are amended, to read:
538 497.458 Disposition of proceeds received on contracts.—
539 (1)(a) Any person who is paid, collects, or receives funds
540 under a preneed contract for funeral services or merchandise or
541 burial services or merchandise shall deposit an amount at least
542 equal to the sum of 70 percent of the purchase price collected
543 for all services sold and facilities rented; 100 percent of the
544 purchase price collected for all cash advance items sold; and 30
545 percent of the purchase price collected or 110 percent of the
546 wholesale cost, whichever is greater, for each item of
547 merchandise sold. The board may, by rule, specify criteria for
548 the classification of items sold in a preneed contract as
549 services, cash advances, or merchandise.
550 (b) The method of determining wholesale cost shall be
551 established by rule of the licensing authority and shall be
552 based upon the preneed licensee’s stated wholesale cost for the
553 12-month period beginning July 1 during which the initial
554 deposit to the preneed trust fund for the preneed contract is
555 made.
556 (c)(d) The trustee shall take title to the property
557 conveyed to the trust for the purpose of investing, protecting,
558 and conserving it for the preneed licensee; collecting income;
559 and distributing the fair market value principal and income as
560 prescribed in this chapter. The preneed licensee is prohibited
561 from sharing in the discharge of these responsibilities, except
562 that the preneed licensee may request the trustee to invest in
563 tax-free investments and may appoint an adviser to the trustee.
564 The licensing authority may adopt rules limiting or otherwise
565 specifying the degree to which the trustee may rely on the
566 investment advice of an investment adviser appointed by the
567 preneed licensee. The licensing authority may adopt rules
568 limiting or prohibiting payment of fees by the trust to
569 investment advisors that are employees or principals of the
570 licensee to whom the trust fund relates.
571 (e)(f) The deposited funds shall be held in trust, both as
572 to principal and any change in fair market value income earned
573 thereon, and shall remain intact, except that the cost of the
574 operation of the trust or trust account authorized by this
575 section may be deducted from the income earned thereon.
576 (j) Beginning April 1, 2018, and on or before each April 1
577 thereafter, the trustee shall furnish the department with an
578 annual report regarding each preneed licensee trust account held
579 by the trustee at any time during the previous calendar year.
580 The report shall state the name and address of the trustee; the
581 name, address, and license number of the licensee to whom the
582 report relates; the trust account number; the beginning and
583 ending trust balance; and, as may be specified by department
584 rule, a list of receipts showing the date and amount of any
585 disbursement. The report must be signed by the trustee’s account
586 manager for the trust account. The trustee shall submit the
587 report in a format and pursuant to procedures specified by
588 department rule.
589 (3)(a) The trustee shall make regular valuations of assets
590 it holds in trust and provide a fair market value report of such
591 valuations to the preneed licensee at least quarterly.
592 (4) The licensing authority may adopt rules exempting from
593 the prohibition of paragraph (1)(g) (1)(h), pursuant to criteria
594 established in such rule, the investment of trust funds in
595 investments, such as widely and publicly traded stocks and
596 bonds, notwithstanding that the licensee, its principals, or
597 persons related by blood or marriage to the licensee or its
598 principals have an interest by investment in the same entity,
599 where neither the licensee, its principals, or persons related
600 by blood or marriage to the licensee or its principals have the
601 ability to control the entity invested in, and it would be in
602 the interest of the preneed contract holders whose contracts are
603 secured by the trust funds to allow the investment.
604 (5) The trustee of the trust established pursuant to this
605 section shall only have the power to:
606 (a) Invest in investments as prescribed in s. 518.11 215.47
607 and exercise the powers set forth in part VIII of chapter 736.
608 However, the trustee may not invest in, or count as assets, life
609 insurance policies or annuity contracts; real estate may not
610 compose more than 25 percent of the trust’s assets; and,
611 provided that the licensing authority may by order require the
612 trustee to liquidate or dispose of any investment within 30 days
613 after such order, or within such other times as the order may
614 direct. The licensing authority may issue such order if it
615 determines that the investment violates any provision of this
616 chapter or is not in the best interests of the preneed contract
617 holders whose contracts are secured by the trust funds.
618 (c) Commingle the property of the trust with the property
619 of any other trust established pursuant to this chapter and make
620 corresponding allocations and divisions of assets, liabilities,
621 income, and expenses, and capital gains and losses.
622 (6) The preneed licensee, at her or his election, shall
623 have the right and power, at any time, to revest in it title to
624 the trust assets, or its pro rata share thereof, provided it has
625 complied with s. 497.461.
626 (7) Notwithstanding anything contained in this chapter to
627 the contrary, the preneed licensee, via its election to sell or
628 offer for sale preneed contracts subject to this section, shall
629 represent and warrant, and is hereby deemed to have done such,
630 to all federal and Florida taxing authorities, as well as to all
631 potential and actual preneed contract purchasers, that:
632 (a) Section 497.461 is a viable option available to it at
633 any and all relevant times;
634 (b) Section 497.462 is a viable option available to it at
635 any and all relevant times for contracts written prior to July
636 1, 2001, for funds not held in trust as of July 1, 2001; or
637 (c) For any preneed licensee authorized to do business in
638 this state that has total bonded liability exceeding $100
639 million as of July 1, 2001, s. 497.462 is a viable option to it
640 at any and all relevant times for contracts written prior to
641 December 31, 2004, for funds not held in trust as of July 1,
642 2001.
643 (8) If in the preneed licensee’s opinion it does not have
644 the ability to select the financial responsibility alternative
645 of s. 497.461 or s. 497.462, then the preneed licensee shall not
646 have the right to sell or solicit preneed contracts.
647 (6)(9) The amounts required to be placed in a trust by this
648 section for contracts previously entered into shall be as
649 follows:
650 (a) For contracts entered into before October 1, 1993, the
651 trust amounts as amended by s. 6, chapter 83-316, Laws of
652 Florida, shall apply.
653 (b) For contracts entered into on or after October 1, 1993,
654 the trust amounts as amended by s. 98, chapter 93-399, Laws of
655 Florida, shall apply.
656 Section 23. Paragraph (a) of subsection (6) of section
657 497.459, Florida Statutes, is amended to read:
658 497.459 Cancellation of, or default on, preneed contracts.—
659 (6) OTHER PROVISIONS.—
660 (a) All preneed contracts are cancelable and revocable as
661 provided in this section, provided that a preneed contract does
662 not restrict any contract purchaser who is the beneficiary of
663 the preneed contract and who is a qualified applicant for, or a
664 recipient of, supplemental security income, temporary cash
665 assistance, or Medicaid from making her or his contract
666 irrevocable. A preneed contract that is made irrevocable
667 pursuant to this section may not be canceled during the life or
668 after the death of the contract purchaser or beneficiary as
669 described in this section. Any unexpended moneys paid on an
670 irrevocable contract shall be remitted to the Agency for Health
671 Care Administration for deposit into the Medical Care Trust Fund
672 after final disposition of the beneficiary.
673 Section 24. Section 497.460, Florida Statutes, is amended
674 to read:
675 497.460 Payment of funds upon death of named beneficiary.
676 Disbursements of funds discharging any preneed contract
677 fulfilled after September 30, 1993, shall be made by the trustee
678 to the preneed licensee upon receipt of a certified copy of the
679 death certificate of the contract beneficiary or satisfactory
680 evidence as established by rule of the licensing authority that
681 the preneed contract has been performed in whole or in part.
682 However, if the contract is only partially performed, the
683 disbursement shall only cover the fair market value of that
684 portion of the contract performed. In the event of any contract
685 default by the contract purchaser, or in the event that the
686 funeral merchandise or service or burial merchandise or service
687 contracted for is not provided or is not desired by the legally
688 authorized person heirs or personal representative of the
689 contract beneficiary, the trustee shall return, within 30 days
690 after its receipt of a written request therefor, funds paid on
691 the contract to the preneed licensee or to its assigns, subject
692 to the provisions of s. 497.459.
693 Section 25. Section 497.461, Florida Statutes, is repealed.
694 Section 26. The repeal of s. 497.461, Florida Statutes, by
695 this act does not apply to a preneed licensee who has elected to
696 maintain a surety bond in lieu of depositing funds into a trust
697 as of July 1, 2016.
698 Section 27. Subsection (2), paragraph (a) of subsection
699 (3), and subsections (7) and (10) of section 497.462, Florida
700 Statutes, are amended to read:
701 497.462 Other alternatives to deposits under s. 497.458.—
702 (2) Upon prior approval by the licensing authority, the
703 preneed licensee may file a letter of credit with the licensing
704 authority in lieu of a surety bond. Such letter of credit must
705 be in a form, and is subject to terms and conditions, prescribed
706 by the board. It may be revoked only with the express approval
707 of the licensing authority.
708 (2)(3)(a) A buyer of preneed merchandise or services who
709 does not receive such services or merchandise due to the
710 economic failure, closing, or bankruptcy of the preneed licensee
711 must file a claim with the surety as a prerequisite to payment
712 of the claim and, if the claim is not paid, may bring an action
713 based on the bond and recover against the surety. In the case of
714 a letter of credit or cash deposit that has been filed with the
715 licensing authority, the buyer may file a claim with the
716 licensing authority.
717 (6)(7) Any preneed contract which promises future delivery
718 of merchandise at no cost constitutes a paid-up contract.
719 Merchandise which has been delivered is not covered by the
720 required performance bond or letter of credit even though the
721 contract is not completely paid. The preneed licensee may not
722 cancel a contract unless the purchaser is in default according
723 to the terms of the contract and subject to the requirements of
724 s. 497.459. A contract sold, discounted, and transferred to a
725 third party constitutes a paid-up contract for the purposes of
726 the performance bond or letter of credit.
727 (9)(10) The licensing authority may adopt forms and rules
728 necessary to implement this section, including, but not limited
729 to, rules which ensure that the surety bond provides and line of
730 credit provide liability coverage for preneed merchandise and
731 services.
732 Section 28. Paragraphs (c) and (f) of subsection (1) of
733 section 497.464, Florida Statutes, are amended to read:
734 497.464 Alternative preneed contracts.—
735 (1) Nothing in this chapter shall prevent the purchaser and
736 the preneed licensee from executing a preneed contract upon the
737 terms stated in this section. Such contracts shall be subject to
738 all provisions of this chapter except:
739 (c) Section 497.458(1), (3), and (6).
740 (f) Section 497.461.
741 Section 29. Subsection (2) and paragraph (c) of subsection
742 (9) of section 497.465, Florida Statutes, are amended to read:
743 497.465 Inactive, surrendered, and revoked preneed
744 licensees.—
745 (2) Upon becoming inactive, a preneed licensee shall cease
746 all preneed sales to the public and upon becoming inactive. the
747 preneed licensee shall collect and deposit into the trust all
748 funds it receives on or after the date on which it becomes
749 inactive from sales of into trust all of the funds paid toward
750 preneed contracts sold before prior to becoming inactive.
751 (9) The licensing authority may adopt rules for the
752 implementation of this section, for the purpose of ensuring a
753 thorough review and investigation of the status and condition of
754 the preneed licensee’s business affairs for the protection of
755 the licensee’s preneed customers. Such rules may include:
756 (c) Requirements for submission of unaudited or audited
757 financial statements, as the licensing authority deems
758 advisable.
759 Section 30. Paragraph (b) of subsection (1) of section
760 497.601, Florida Statutes, is amended to read:
761 497.601 Direct disposition; duties.—
762 (1) Those individuals licensed as direct disposers may
763 perform only those functions set forth below:
764 (b) Secure pertinent information from a legally authorized
765 person the decedent’s next of kin in order to complete the death
766 certificate and to file for the necessary permits for direct
767 disposition.
768 Section 31. Subsection (1) of section 497.607, Florida
769 Statutes, is amended, present subsections (2), (3), and (4) of
770 that section are redesignated as subsections (3), (4), and (5),
771 respectively, and a new subsection (2) is added to that section,
772 to read:
773 497.607 Cremation; procedure required.—
774 (1) At the time of the arrangement for a cremation
775 performed by any person licensed pursuant to this chapter, the
776 legally authorized person contracting for cremation services
777 shall be required to designate her or his intentions with
778 respect to the disposition of the cremated remains of the
779 deceased in a signed declaration of intent which shall be
780 provided by and retained by the funeral or direct disposal
781 establishment. A cremation may not be performed until a legally
782 authorized person gives written authorization, which may include
783 the declaration of intent to dispose of the cremated remains,
784 for such cremation. The cremation must be performed within 48
785 hours after a specified time which has been agreed to in writing
786 by the person authorizing the cremation.
787 (2) Cremated remains are not property, as defined in s.
788 731.201(32), and are not subject to ownership or court-ordered
789 partition. A division of cremated remains requires the consent
790 of the legally authorized person who approved the cremation or,
791 if the legally authorized person is the decedent, the next
792 legally authorized person pursuant to s. 497.005(43). A dispute
793 regarding the division of cremated remains
794
795 ================= T I T L E A M E N D M E N T ================
796 And the title is amended as follows:
797 Delete lines 8 - 63
798 and insert:
799 the licensing process; amending s. 497.146, F.S.;
800 revising required information for current licensees to
801 include an address for e-mail notification; providing
802 for rulemaking relating to electronic reporting;
803 amending s. 497.152, F.S.; conforming provisions to
804 changes made by the act; requiring, rather than
805 authorizing, the Board of Funeral, Cemetery, and
806 Consumer Services to provide certain criteria;
807 prohibiting the board from requiring a fine when
808 certain deficiencies are fully corrected within a
809 specified period; amending s. 497.161, F.S.; revising
810 requirements for rules of the licensing authority;
811 amending s. 497.266, F.S.; revising the prohibition
812 against withdrawal or transfer of assets within the
813 care and maintenance trust fund to include an
814 exception; amending s. 497.267, F.S.; revising
815 provisions relating to the disposition of withdrawals
816 from the care and maintenance trust fund; creating s.
817 497.2675, F.S.; requiring the board to adopt certain
818 rules; requiring a licensed cemetery company to
819 request a method for withdrawal from the cemetery
820 company’s care and maintenance trust fund; providing
821 requirements for such methods; requiring that taxes on
822 capital gains be paid from the trust principal;
823 amending s. 497.268, F.S.; conforming provisions to
824 changes made by the act; deleting a required deposit
825 in a cemetery company’s care and maintenance trust
826 fund for mausoleums or columbaria; deleting the
827 requirement that taxes on capital gain be paid from
828 the trust corpus; amending s. 497.269, F.S.; requiring
829 a trustee to annually furnish financial reports that
830 record the fair market value of the care and
831 maintenance trust fund; amending ss. 497.273 and
832 497.274, F.S.; conforming provisions to changes made
833 by the act; amending s. 497.277, F.S.; deleting a
834 limitation on the fee for transfer of burial rights
835 from one purchaser to another; authorizing the board
836 to determine the transfer fee; amending ss. 497.283
837 and 497.286, F.S.; conforming provisions to changes
838 made by the act; amending s. 497.371, F.S.; providing
839 that an applicant for the embalmer apprentice program
840 may not be licensed without a determination of
841 character by the licensing authority; amending ss.
842 497.372 and 497.381, F.S.; conforming provisions to
843 changes made by the act; amending s. 497.452, F.S.;
844 deleting an exception that prohibits a person from
845 receiving specified funds without holding a valid
846 preneed license; amending ss. 497.454 and 497.456,
847 F.S.; conforming provisions to changes made by the
848 act; amending s. 497.458, F.S.; revising requirements
849 relating to the disposition of proceeds on a preneed
850 contract; authorizing the board to specify criteria
851 for the classification of items sold in a preneed
852 contract; requiring the trustee to furnish the
853 department with an annual report regarding preneed
854 licensee trust accounts beginning on a specified date;
855 providing requirements for the annual report; revising
856 which investments a trustee of a trust has the power
857 to invest in; deleting provisions relating to the
858 preneed licensee; amending s. 497.459, F.S.;
859 prohibiting certain preneed contracts from being
860 canceled during the life or after the death of the
861 contract purchaser or beneficiary; requiring
862 unexpended moneys on an irrevocable contract to be
863 deposited into the Medical Care Trust Fund under
864 certain circumstances; amending s. 497.460, F.S.;
865