Florida Senate - 2019 COMMITTEE AMENDMENT Bill No. CS for SB 1704 Ì575184;Î575184 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) 2 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. 22 (2) CANCELLATION BY PURCHASER AFTER 30 DAYS.— 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. 131 132 ================= 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