Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1704
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/11/2019           .                                

       The Committee on Innovation, Industry, and Technology (Hutson)
       recommended the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 403 and 404
    4  insert:
    5         Section 11. Section 497.459, Florida Statutes, is amended
    6  to read:
    7         497.459 Cancellation of, or default on, preneed contracts;
    8  notice of intent to perform.—
    9         (1) CANCELLATION BY CUSTOMER WITHIN 30 DAYS.—A purchaser,
   10  by providing written notice to the preneed licensee, may cancel
   11  a preneed contract within 30 days of the date that the contract
   12  was executed provided that the burial rights, merchandise and
   13  services have not yet been used. Upon providing such notice, the
   14  purchaser shall be entitled to a complete refund of the amount
   15  paid, except for the amount allocable to any burial rights,
   16  merchandise or services that have been used, and shall be
   17  released from all obligations under the contract. This
   18  subsection shall apply to all items that are purchased as part
   19  of a preneed contract, including burial rights, regardless of
   20  whether such burial rights are purchased as part of a preneed
   21  contract or purchased separately.
   23         (a) A purchaser, by providing written notice to the preneed
   24  licensee, may cancel the services, facilities, and cash advance
   25  items portions of a preneed contract at any time, and shall be
   26  entitled to a full refund of the purchase price allocable to
   27  such items. Any accumulated earnings allocable to such preneed
   28  contract shall be paid to the preneed licensee upon such
   29  cancellation.
   30         (b) Subject to subparagraphs 1. and 2., a purchaser may
   31  cancel the merchandise portion of a preneed contract by
   32  providing written notice to the preneed licensee, and shall be
   33  entitled to a full refund of the purchase price allocable to the
   34  specific item or items of merchandise that the preneed licensee
   35  cannot or does not deliver in accordance with this subsection.
   36         1. Such refund shall be provided only if at the time that
   37  the preneed licensee is required to fulfill its obligations
   38  under the preneed contract the preneed licensee does not or
   39  cannot comply with the terms of the contract by actually
   40  delivering the merchandise, within a reasonable time, depending
   41  upon the nature of the merchandise purchased, after having been
   42  requested to do so.
   43         2. In order to fulfill its obligations under the preneed
   44  contract, a preneed licensee may elect either or both of the
   45  following options:
   46         a. Subcontract with a person located outside the preneed
   47  licensee’s market area to provide the merchandise; or
   48         b. Provide other items of equal or greater quality.
   49         (3) REQUIRED DISCLOSURE.—Each preneed licensee shall
   50  provide in conspicuous type in its contract that the contract
   51  purchaser may cancel the contract and receive a full refund
   52  within 30 days of the date of execution of the contract. The
   53  failure to make such provision shall not impair the contract
   54  purchaser’s right to cancellation and refund as provided in this
   55  section.
   56         (4) BREACH OF CONTRACT BY SELLER.—Upon breach of contract
   57  or failure of the preneed licensee to provide funeral
   58  merchandise or services under a preneed contract, the contract
   59  purchaser shall be entitled to a refund of all money paid on the
   60  contract. Such refund shall be made within 30 days after receipt
   61  by the preneed licensee of the contract purchaser’s written
   62  request for refund.
   63         (5) DEFAULT BY PURCHASER.—If a purchaser is 90 days past
   64  due in making payments on a preneed contract, the contract shall
   65  be considered to be in default, and the preneed licensee shall
   66  be entitled to cancel the contract, withdraw all funds in trust
   67  allocable to merchandise items, and retain such funds as
   68  liquidated damages. Upon making such withdrawal, the preneed
   69  licensee shall return all funds in trust allocable to services,
   70  facilities, or cash advance items to the purchaser, provided
   71  that the preneed licensee has provided the purchaser with 30
   72  days’ written notice of its intention to exercise any of its
   73  rights under this provision. The board may by rule specify the
   74  required format and content of the notice required under this
   75  subsection and the manner in which the notice shall be sent.
   76         (6) OTHER PROVISIONS.—
   77         (a) All preneed contracts are cancelable and revocable as
   78  provided in this section, provided that a preneed contract does
   79  not restrict any contract purchaser who is the beneficiary of
   80  the preneed contract and who is a qualified applicant for, or a
   81  recipient of, supplemental security income, temporary cash
   82  assistance, or Medicaid from making her or his contract
   83  irrevocable. A preneed contract that is made irrevocable
   84  pursuant to this section may not be canceled during the life or
   85  after the death of the contract purchaser or beneficiary as
   86  described in this section. Any unexpended moneys paid on an
   87  irrevocable contract shall be remitted to the Agency for Health
   88  Care Administration for deposit into the Medical Care Trust Fund
   89  after final disposition of the beneficiary.
   90         (b) The amounts required to be refunded by this section for
   91  contracts previously entered into shall be as follows:
   92         1. For contracts entered into before October 1, 1993, the
   93  refund amounts as amended by s. 7, chapter 83-316, Laws of
   94  Florida, shall apply.
   95         2. For contracts entered into on or after October 1, 1993,
   96  the refund amounts as amended by s. 99, chapter 93-399, Laws of
   97  Florida, shall apply.
   98         (c) Persons who purchase merchandise or burial rights
   99  pursuant to this chapter shall have the right to sell, alienate,
  100  or otherwise transfer the merchandise or burial rights subject
  101  to and in accordance with rules adopted by the licensing
  102  authority.
  103         (d) All refunds required to be made under this section to a
  104  purchaser who has canceled a contract must be made within 30
  105  days after the date written notice of cancellation is received
  106  by the preneed licensee.
  107         (7)NOTICE OF INTENT TO PERFORM.—
  108         (a)To facilitate the performance of a preneed contract, a
  109  preneed licensee may provide to the purchaser or to the
  110  beneficiary’s legally authorized person written notice of the
  111  preneed licensee’s intent to perform upon the occurrence of the
  112  earliest of any of the following events:
  113         1.Fifty years after the date of execution of the preneed
  114  contract by the purchaser.
  115         2.The beneficiary of the preneed contract attains the age
  116  of 105 years of age or older.
  117         3.The social security number of the beneficiary of the
  118  preneed contract, as shown on the contract, is contained within
  119  the United States Social Security Administration Death Master
  120  File.
  121         (b)The notice in paragraph (a) must be mailed to the last
  122  known mailing address of the purchaser as provided to the
  123  preneed licensee. If the purchaser or the beneficiary’s legally
  124  authorized person fails to respond to such notice within 120
  125  days after delivery of the notice, the funds held in trust must
  126  be distributed in accordance with the terms of the preneed
  127  contract.
  128         (c)This subsection does not affect a purchaser’s rights to
  129  cancel the preneed contract and receive a refund or a licensee’s
  130  obligations to refund established by this chapter.
  132  ================= T I T L E  A M E N D M E N T ================
  133  And the title is amended as follows:
  134         Delete lines 38 - 43
  135  and insert:
  136         certain rules; amending s. 497.458, F.S.; deleting a
  137         requirement that trust companies must operate pursuant
  138         to ch. 660, F.S., to enter into certain revocable
  139         trust instruments; amending s. 497.459, F.S.;
  140         authorizing preneed licensees, under certain
  141         circumstances, to provide certain persons with a
  142         written notice of intent to perform under the preneed
  143         contract; specifying where such notice must be sent;
  144         providing that funds held in trust must be distributed
  145         in accordance with the contract terms if certain
  146         persons fail to respond to the notice within a certain
  147         timeframe; providing construction; amending s.
  148         497.464, F.S.; deleting a requirement that trust
  149         companies must operate pursuant to ch. 660, F.S., to
  150         act as trustees for certain preneed contract
  151         purchasers; amending s. 497.604, F.S.; revising