Senate Bill sb1610c1
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Florida Senate - 2001 CS for SB 1610
By the Committee on Banking and Insurance; and Senators
Latvala, Wasserman Schultz, Lee, Sullivan, Mitchell, Miller,
Lawson, Peaden, Posey and Cowin
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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 need determinations;
5 amending s. 497.005, F.S.; providing and
6 revising definitions; amending s. 497.201,
7 F.S.; increasing minimum acreage requirements
8 to establish a cemetery company; eliminating
9 need determinations for new cemeteries;
10 clarifying provisions governing authorized
11 trust companies, banks, and savings and loan
12 associations; revising experience requirements
13 for the general manager of a cemetery company;
14 amending s. 497.237, F.S.; authorizing care and
15 maintenance trust funds to be established with
16 a federal savings and loan association holding
17 trust powers in this state; amending s.
18 497.245, F.S.; revising provisions governing
19 burial rights; amending s. 497.253, F.S.;
20 revising minimum acreage requirements and
21 references, to conform; revising requirements
22 for sale or disposition of certain cemetery
23 lands, to conform; repealing s. 497.353(12),
24 F.S., relating to prohibiting the use in need
25 determinations of spaces or lots from burial
26 rights reacquired by a cemetery, to conform;
27 amending s. 497.405, F.S.; clarifying
28 provisions relating to authorized trust
29 companies, banks, and savings and loan
30 associations; amending s. 497.417, F.S.;
31 clarifying provisions relating to authorized
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1 trust companies, banks, and savings and loan
2 associations; revising the authority of
3 certificateholders offering preneed funeral and
4 burial merchandise and services contracts to
5 revest title to trust assets by posting a bond
6 or using other forms of security or insurance;
7 providing a time limitation on such authority;
8 amending s. 497.425, F.S.; providing a time
9 limitation on the authority to post certain
10 bonds to secure preneed contract assets;
11 amending s. 497.429, F.S.; clarifying
12 provisions relating to authorized trust
13 companies, banks, and savings and loan
14 associations with respect to alternative
15 preneed contracts; amending s. 470.002, F.S.;
16 redefining the term "legally authorized person"
17 for purposes of ch. 470, F.S.; providing an
18 effective date.
19
20 Be It Enacted by the Legislature of the State of Florida:
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22 Section 1. Subsection (4) of section 497.003, Florida
23 Statutes, is amended to read:
24 497.003 Cemeteries; exemption; investigation and
25 mediation.--
26 (4) Any religious-institution-owned cemetery that is
27 exempt under paragraph (1)(d), is located in a county with a
28 population of at least 1.3 million persons on July 1, 1996,
29 and was selling merchandise and services to the religious
30 institution's members prior to October 1, 1993, may establish
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1 one additional exempt cemetery in such county after December
2 31, 2020, without establishing need under s. 497.201.
3 Section 2. Section 497.005, Florida Statutes, is
4 amended to read:
5 497.005 Definitions.--As used in this chapter:
6 (1) "At-need solicitation" means any uninvited contact
7 by a licensee or her or his agent for the purpose of the sale
8 of burial services or merchandise to the family or next of kin
9 of a person after her or his death has occurred.
10 (2) "Bank of belowground crypts" means any
11 construction unit of belowground crypts which is acceptable to
12 the department and which a cemetery uses to initiate its
13 belowground crypt program or to add to existing belowground
14 crypt structures.
15 (3) "Belowground crypts" consist of interment space in
16 preplaced chambers, either side by side or multiple depth,
17 covered by earth and sod and known also as "lawn crypts,"
18 "westminsters," or "turf-top crypts."
19 (4) "Board" means the Board of Funeral and Cemetery
20 Services.
21 (5) "Burial merchandise," "funeral merchandise," or
22 "merchandise" means any personal property offered or sold by
23 any person for use in connection with the final disposition,
24 memorialization, interment, entombment, or inurnment of human
25 remains.
26 (6) "Burial right" means the right to use a grave
27 space, mausoleum, or columbarium, ossuary, or scattering
28 garden for the interment, entombment, or inurnment, or other
29 disposition of human remains.
30 (7) "Burial service," "funeral service," or "service"
31 means any service offered or provided by any person in
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1 connection with the final disposition, memorialization,
2 interment, entombment, or inurnment of human remains.
3 (8) "Care and maintenance" means the perpetual process
4 of keeping a cemetery and its lots, graves, grounds,
5 landscaping, roads, paths, parking lots, fences, mausoleums,
6 columbaria, vaults, crypts, utilities, and other improvements,
7 structures, and embellishments in a well-cared-for and
8 dignified condition, so that the cemetery does not become a
9 nuisance or place of reproach and desolation in the community.
10 As specified in the rules of the board, "care and maintenance"
11 may include, but is not limited to, any or all of the
12 following activities: mowing the grass at reasonable
13 intervals; raking and cleaning the grave spaces and adjacent
14 areas; pruning of shrubs and trees; suppression of weeds and
15 exotic flora; and maintenance, upkeep, and repair of drains,
16 water lines, roads, buildings, and other improvements. "Care
17 and maintenance" may include, but is not limited to,
18 reasonable overhead expenses necessary for such purposes,
19 including maintenance of machinery, tools, and equipment used
20 for such purposes. "Care and maintenance" may also include
21 repair or restoration of improvements necessary or desirable
22 as a result of wear, deterioration, accident, damage, or
23 destruction. "Care and maintenance" does not include expenses
24 for the construction and development of new grave spaces or
25 interment structures to be sold to the public.
26 (9) "Casket" means a rigid container which is designed
27 for the encasement of human remains and which is usually
28 constructed of wood or metal, ornamented, and lined with
29 fabric.
30 (10) "Cemetery" means a place dedicated to and used or
31 intended to be used for the permanent interment of human
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1 remains. A cemetery may contain land or earth interment;
2 mausoleum, vault, or crypt interment; a columbarium, ossuary,
3 scattering garden, or other structure or place used or
4 intended to be used for the interment or disposition of
5 cremated human remains; or any combination of one or more of
6 such structures or places.
7 (11) "Cemetery company" means any legal entity that
8 owns or controls cemetery lands or property.
9 (12) "Certificateholder" or "licensee" means the
10 person or entity that is authorized under this chapter to sell
11 preneed funeral or burial services, preneed funeral or burial
12 merchandise, or burial rights. Each term shall include the
13 other, as applicable, as the context requires. For the
14 purposes of chapter 120, all certificateholders, licensees,
15 and registrants shall be considered licensees.
16 (13) "Columbarium" means a structure or building which
17 is substantially exposed above the ground and which is
18 intended to be used for the inurnment of cremated human
19 remains.
20 (14) "Common business enterprise" means a group of two
21 or more business entities that share common ownership in
22 excess of 50 percent.
23 (15) "Community" means the area within a 15-mile
24 radius surrounding the location or proposed location of a
25 cemetery.
26 (15)(16) "Cremation" includes any mechanical or
27 thermal process whereby a dead human body is reduced to ashes.
28 Cremation also includes any other mechanical or thermal
29 process whereby human remains are pulverized, burned,
30 recremated, or otherwise further reduced in size or quantity.
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1 (16)(17) "Department" means the Department of Banking
2 and Finance.
3 (17)(18) "Direct disposer" means any person who is
4 registered in this state to practice direct disposition
5 pursuant to the provisions of chapter 470.
6 (18)(19) "Final disposition" means the final disposal
7 of a dead human body whether by interment, entombment, burial
8 at sea, cremation, or any other means and includes, but is not
9 limited to, any other disposition of remains for which a
10 segregated charge is imposed.
11 (19)(20) "Funeral director" means any person licensed
12 in this state to practice funeral directing pursuant to the
13 provisions of chapter 470.
14 (20)(21) "Grave space" means a space of ground in a
15 cemetery intended to be used for the interment in the ground
16 of human remains.
17 (21)(22) "Human remains" means the bodies of deceased
18 persons and includes bodies in any stage of decomposition and
19 cremated remains.
20 (22)(23) "Mausoleum" means a structure or building
21 which is substantially exposed above the ground and which is
22 intended to be used for the entombment of human remains.
23 (23)(24) "Mausoleum section" means any construction
24 unit of a mausoleum which is acceptable to the department and
25 which a cemetery uses to initiate its mausoleum program or to
26 add to its existing mausoleum structures.
27 (24)(25) "Monument" means any product used for
28 identifying a grave site and cemetery memorials of all types,
29 including monuments, markers, and vases.
30 (25)(26) "Monument establishment" means a facility
31 that operates independently of a cemetery or funeral
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1 establishment and that offers to sell monuments or monument
2 services to the public for placement in a cemetery.
3 (26)(27) "Net assets" means the amount by which the
4 total assets of a certificateholder, excluding goodwill,
5 franchises, customer lists, patents, trademarks, and
6 receivables from or advances to officers, directors,
7 employees, salespersons, and affiliated companies, exceed
8 total liabilities of the certificateholder. For purposes of
9 this definition, the term "total liabilities" does not include
10 the capital stock, paid-in capital, or retained earnings of
11 the certificateholder.
12 (27)(28) "Net worth" means total assets minus total
13 liabilities pursuant to generally accepted accounting
14 principles.
15 (28) "Ossuary" means a receptacle used for the
16 communal placement of cremated human remains without benefit
17 of an urn or any other container. It may or may not include
18 memorialization.
19 (29) "Outer burial container" means an enclosure into
20 which a casket is placed and includes, but is not limited to,
21 vaults made of concrete, steel, fiberglass, or copper;
22 sectional concrete enclosures; crypts; and wooden enclosures.
23 (30) "Preneed contract" means any arrangement or
24 method, of which the provider of funeral merchandise or
25 services has actual knowledge, whereby any person the funeral
26 establishment, direct disposer, or certificateholder agrees to
27 furnish funeral merchandise or service in the future.
28 (31) "Religious institution" means an organization
29 formed primarily for religious purposes which has qualified
30 for exemption from federal income tax as an exempt
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1 organization under the provisions of s. 501(c)(3) of the
2 Internal Revenue Code of 1986, as amended.
3 (32) "Scattering garden" means a location set aside,
4 within a cemetery, which is used for the spreading or
5 broadcasting of cremated remains. It may or may not include
6 memorialization.
7 (33)(32) "Servicing agent" means any person acting as
8 an independent contractor whose fiduciary responsibility is to
9 assist both the trustee and certificateholder hereunder in
10 administrating their responsibilities pursuant to this
11 chapter.
12 (34)(33) "Solicitation" means any communication which
13 directly or implicitly requests an immediate oral response
14 from the recipient.
15 (35)(34) "Statutory accounting" means generally
16 accepted accounting principles, except as modified by this
17 chapter.
18 Section 3. Section 497.201, Florida Statutes, is
19 amended to read:
20 497.201 Cemetery companies; license; application;
21 fee.--
22 (1) No person may operate a cemetery without first
23 obtaining a license from the department, unless specifically
24 exempted from this chapter.
25 (2) The department may require any person desiring to
26 establish a cemetery company who applies for a license to
27 provide any information reasonably necessary to make a
28 determination of the applicant's eligibility for licensure.
29 Any person desiring to establish a cemetery company shall
30 first:
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1 (a) File an application, which states the exact
2 location of the proposed cemetery, which site shall contain
3 not less than 30 15 contiguous acres; provide a financial
4 statement signed by all officers of the company which attest
5 to a net worth of at least $50,000, which net worth must be
6 continuously maintained as a condition of licensure; and pay
7 an application fee of $5,000;
8 (b) Create a legal entity; and
9 (c) Demonstrate to the satisfaction of the board that
10 the applicant possesses the ability, experience, financial
11 stability, and integrity to operate a cemetery.
12 (3) The department shall determine the need for a new
13 cemetery by considering the adequacy of existing cemetery
14 facilities, licensed and unlicensed, within the community; the
15 solvency of the trust funds of the existing facilities; and
16 the relationship between population, rate of population
17 growth, death rate, and ratio of burials to deaths to meet the
18 projected need for burial spaces for a period of 30 years. In
19 order to promote competition, the department may waive the
20 criteria of this subsection so that each county may have at
21 least six cemeteries operated by different licensees.
22 (3)(4) If the board finds that the applicant meets the
23 criteria established in subsection (2) and the department
24 determines that a need for the new cemetery in the community
25 exists, the department shall notify the applicant that a
26 license will be issued when:
27 (a) The establishment of a care and maintenance trust
28 fund containing not less than $50,000 has been certified by a
29 trust company operating pursuant to chapter 660, a state or
30 national bank holding trust powers, or a savings and loan
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1 association holding trust powers as provided in s. 497.423
2 licensed in this state.
3 (b) The applicant has filed with the department
4 development plans which are sufficient to ensure the
5 department that the cemetery will provide adequate service to
6 the community and which have been approved by the appropriate
7 local governmental agency regulating zoning in the area of the
8 proposed cemetery.
9 (c) The applicant holds an unencumbered fee simple
10 title to at least 30 15 contiguous acres of land.
11 (d) The applicant has designated as general manager a
12 person who has integrity, 3 years 1 year of cemetery
13 management experience as defined by board rule, and the
14 ability to operate a cemetery.
15 (e) The applicant has fully developed not less than 2
16 acres for use as burial space, such development to include a
17 paved road from a public roadway to the developed section.
18 (f) The applicant has recorded, in the public records
19 of the county in which the land is located, a notice which
20 contains the following language:
21
22 NOTICE
23
24 The property described herein shall not be sold, conveyed,
25 leased, mortgaged, or encumbered without the prior written
26 approval of the Department of Banking and Finance, as provided
27 in the Florida Funeral and Cemetery Services Act.
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29 Such notice shall be clearly printed in boldfaced type of not
30 less than 10 points and may be included on the face of the
31 deed of conveyance to the licensee or may be contained in a
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1 separate recorded instrument which contains a description of
2 the property.
3 (4)(5) The department shall issue a license to operate
4 a cemetery company to any applicant who, within 12 months
5 after notice that a license may be issued, meets the criteria
6 of subsection (3) (4). With respect to any application for
7 which the department has given notice under subsection (3) (4)
8 on or after January 1, 1984, the board may, for good cause
9 shown, grant up to two extensions of the 12-month period
10 within which the applicant must meet the criteria of
11 subsection (3) (4).
12 Section 4. Subsection (1) of section 497.237, Florida
13 Statutes, is amended to read:
14 497.237 Care and maintenance trust fund; remedy of
15 department for noncompliance.--
16 (1) No cemetery company may establish a cemetery, or
17 operate a cemetery if already established, without providing
18 for the future care and maintenance of the cemetery, for which
19 a care and maintenance trust fund shall be established, to be
20 known as "the care and maintenance trust fund of ....." The
21 trust fund shall be established with a trust company operating
22 pursuant to chapter 660, or with a state or national bank
23 holding trust powers, or with a federal or state savings and
24 loan association holding trust powers. Trust funds which are
25 with a state or national bank or savings and loan association
26 licensed in this state on October 1, 1993, shall remain in
27 force; however, when the amount of any such trust fund exceeds
28 the amount that is insured by an agency of the Federal
29 Government, the cemetery company shall transfer that trust
30 fund to a trust company operating pursuant to chapter 660, or
31 to a state or national bank holding trust powers, or to a
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1 federal or state savings and loan association holding trust
2 powers.
3 Section 5. Subsection (1) of section 497.245, Florida
4 Statutes, is amended to read:
5 497.245 Care and maintenance trust fund, percentage of
6 payments for burial rights to be deposited.--
7 (1) Each cemetery company shall set aside and deposit
8 in its care and maintenance trust fund the following
9 percentages or amounts for all sums received from sales of
10 burial rights:
11 (a) For burial rights graves, 10 percent of all
12 payments received; however, for sales made after September 30,
13 1993, no deposit shall be less than $25 per grave. For each
14 burial right, grave, or space which is provided without
15 charge, the deposit to the fund shall be $25.
16 (b) For mausoleums or columbaria, 10 percent of
17 payments received.
18 (c) For general endowments for the care and
19 maintenance of the cemetery, the full amount of sums received
20 when received.
21 (d) For special endowments for a specific lot or grave
22 or a family mausoleum, memorial, marker, or monument, the
23 cemetery company may set aside the full amount received for
24 this individual special care in a separate trust fund or by a
25 deposit to a savings account in a bank or savings and loan
26 association located within and authorized to do business in
27 the state; however, if the licensee does not set up a separate
28 trust fund or savings account for the special endowment, the
29 full amount thereof shall be deposited into the care and
30 maintenance trust fund as required of general endowments.
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1 Section 6. Subsections (1), (2), and (5) and paragraph
2 (c) of subsection (3) and subsection (5) of section 497.253,
3 Florida Statutes, are amended to read:
4 497.253 Minimum acreage; sale or disposition of
5 cemetery lands.--
6 (1) Each licensee shall set aside a minimum of 30 15
7 contiguous acres of land for use by the licensee as a cemetery
8 and shall not sell, mortgage, lease, or encumber that property
9 without prior written approval of the department.
10 (2) Any lands owned by a licensee and dedicated for
11 use by it as a cemetery, which are contiguous, adjoining, or
12 adjacent to the minimum of 30 15 contiguous acres described in
13 subsection (1), may be sold, conveyed, or disposed of by the
14 licensee, after obtaining written approval of the department
15 pursuant to subsection (3), for use by the new owner for other
16 purposes than as a cemetery. All of the human remains which
17 have been previously interred therein shall first have been
18 removed from the lands proposed to be sold, conveyed, or
19 disposed of; however, the provisions of ss. 470.0295 and
20 497.515(7) must be complied with prior to any disinterment of
21 human remains. Any and all titles, interests, or burial rights
22 which may have been sold or contracted to be sold in lands
23 which are the subject of the sale shall be conveyed to and
24 revested in the licensee prior to consummation of any such
25 sale, conveyance, or disposition.
26 (3)
27 (c) If the property in question has been used for the
28 permanent interment of human remains, the department shall
29 approve the application, in writing, if it finds that it would
30 not be contrary to the public interest. In determining whether
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1 to approve the application, the department shall consider any
2 evidence presented concerning the following:
3 1. The historical significance of the subject
4 property, if any.
5 2. The archaeological significance of the subject
6 property, if any.
7 3. The public purpose, if any, to be served by the
8 proposed use of the subject property.
9 4. The impact of the proposed change in use of the
10 subject property upon the inventory of remaining cemetery
11 facilities in the community and upon the other factors
12 enumerated in s. 497.201(3).
13 4.5. The impact of the proposed change in use of the
14 subject property upon the reasonable expectations of the
15 families of the deceased regarding whether the cemetery
16 property was to remain as a cemetery in perpetuity.
17 5.6. Whether any living relatives of the deceased
18 actively oppose the relocation of their deceased's remains and
19 the conversion of the subject property to noncemetery uses.
20 6.7. The elapsed time since the last interment in the
21 subject property.
22 7.8. Any other factor enumerated in this chapter that
23 the department considers relevant to the public interest.
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 7. Subsection (12) of section 497.353, Florida
31 Statutes, is repealed.
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1 Section 8. Paragraph (b) of subsection (2) of section
2 497.405, Florida Statutes, is amended to read:
3 497.405 Certificate of authority required.--
4 (2)(a) No person may receive any funds for payment on
5 a preneed contract who does not hold a valid certificate of
6 authority.
7 (b) The provisions of paragraph (a) do not apply to a
8 any trust company operating pursuant to chapter 660, or to a
9 any national or state bank holding trust powers, or to a
10 federal or state savings and loan association having trust
11 powers which company, bank, or association receives any money
12 in trust pursuant to the sale of a preneed contract.
13 Section 9. Subsections (1), (5), and (6) of section
14 497.417, Florida Statutes, are amended to read:
15 497.417 Disposition of proceeds received on
16 contracts.--
17 (1) Any person who is paid, collects, or receives
18 funds under a preneed contract for funeral services or
19 merchandise or burial services or merchandise shall deposit in
20 this state an amount at least equal to the sum of 70 percent
21 of the purchase price collected for all services sold and
22 facilities rented; 100 percent of the purchase price collected
23 for all cash advance items sold; and 30 percent of the
24 purchase price collected or 110 percent of the wholesale cost,
25 whichever is greater, for each item of merchandise sold. The
26 method of determining wholesale cost shall be established by
27 rule of the board and shall be based upon the
28 certificateholder's stated wholesale cost for the 12-month
29 period beginning July 1 during which the initial deposit to
30 the preneed trust fund for the preneed contract is made. Such
31 deposits shall be made within 30 days after the end of the
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1 calendar month in which payment is received, under the terms
2 of a revocable trust instrument entered into with a trust
3 company operating pursuant to chapter 660, with a national or
4 state bank holding trust powers, or with a federal or state
5 savings and loan association holding having trust powers or a
6 trust company. The trustee shall take title to the property
7 conveyed to the trust for the purpose of investing,
8 protecting, and conserving it for the certificateholder;
9 collecting income; and distributing the principal and income
10 as prescribed in this chapter. The certificateholder is
11 prohibited from sharing in the discharge of these
12 responsibilities, except that the certificateholder may
13 request the trustee to invest in tax-free investments and may
14 appoint an adviser to the trustee. The trust agreement shall
15 be submitted to the board for approval and filing. The funds
16 shall be held in trust, both as to principal and income earned
17 thereon, and shall remain intact, except that the cost of the
18 operation of the trust or trust account authorized by this
19 section may be deducted from the income earned thereon. The
20 contract purchaser shall have no interest whatsoever in, or
21 power whatsoever over, funds deposited in trust pursuant to
22 this section. In no event may said funds be loaned to a
23 certificateholder, an affiliate of a certificateholder, or any
24 person directly or indirectly engaged in the burial, funeral
25 home, or cemetery business. Furthermore, the
26 certificateholder's interest in said trust shall not be
27 pledged as collateral for any loans, debts, or liabilities of
28 the certificateholder and shall not be transferred to any
29 person without the prior written approval from the department
30 and the trustee which shall not be unreasonably withheld.
31 Even though the certificateholder shall be deemed and treated
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1 as the settlor and beneficiary of said trust for all purposes,
2 all of said trust funds are exempt from all claims of
3 creditors of the certificateholder except as to the claims of
4 the contract purchaser, her or his representative, the board,
5 or the department.
6 (5) The certificateholder, at her or his election,
7 shall have the right and power, at any time, to revest in it
8 title to the trust assets, or its pro rata share thereof,
9 provided it has complied with:
10 (a) Section 497.423;
11 (b) Contracts written prior to July 1, 2001, under s.
12 497.425; or
13 (c) Contracts written prior to December 31, 2004,
14 under s. 497.425 for any certificateholder authorized to do
15 business in this state that has total bonded liability
16 exceeding $100 million as of July 1, 2001 s. 497.423 or s.
17 497.425.
18 (6) Notwithstanding anything contained in this chapter
19 to the contrary, the certificateholder, via its election to
20 sell or offer for sale preneed contracts subject to this
21 section, shall represent and warrant, and is hereby deemed to
22 have done such, to all federal and Florida taxing authorities,
23 as well as to all potential and actual preneed contract
24 purchasers, that:
25 (a) Section 497.423 is a viable option available to it
26 at any and all relevant times;
27 (b) Section 497.425 is a viable option available to it
28 at any and all relevant times for contracts written prior to
29 July 1, 2001, for funds not held in trust as of July 1, 2001;
30 or
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1 (c) For any certificateholder authorized to do
2 business in this state that has total bonded liability
3 exceeding $100 million as of July 1, 2001, s. 497.425 is a
4 viable option to it at any and all relevant times for
5 contracts written prior to December 31, 2004, for funds not
6 held in trust as of July 1, 2001 s. 497.423 or s. 497.425 is a
7 viable option available to it at any and all relevant times.
8 (7) If in the certificateholder's opinion it does not
9 have the ability to select the financial responsibility
10 alternative of s. 497.423 or s. 497.425, then it shall not
11 have the right to sell or solicit contracts pursuant to this
12 section.
13 (8)(6) This section, as amended by s. 6, chapter
14 83-316, Laws of Florida, applies to preneed contracts entered
15 into before October 1, 1993, and as amended by s. 98, chapter
16 93-399, Laws of Florida, applies to preneed contracts entered
17 into on or after October 1, 1993.
18 Section 10. Paragraph (a) of subsection (1) of section
19 497.425, Florida Statutes, is amended, and subsection (12) is
20 added to that section, to read:
21 497.425 Alternatives to deposits under s. 497.417.--
22 (1)(a) As an alternative to the requirements of s.
23 497.417 that relate to trust funds for contracts written prior
24 to July 1, 2001, or that relate to trust funds for contracts
25 written prior to December 31, 2004, by any certificateholder
26 authorized to do business in this state that has total bonded
27 liability exceeding $100 million as of July 1, 2001, a
28 certificateholder may purchase a surety bond for funds not
29 held in trust as of July 1, 2001, in an amount not less than
30 the aggregate value of outstanding liabilities on undelivered
31 preneed contracts for merchandise and services. For the
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1 purpose of this section, the term "outstanding liabilities"
2 means the gross replacement or wholesale value of the preneed
3 merchandise and services. The bond shall be made payable to
4 the State of Florida for the benefit of the board and all
5 purchasers of preneed cemetery merchandise or services. The
6 bond must be approved by the board.
7 (12) Certificateholders may utilize the bonding
8 alternatives to s. 497.417 provided in this section only for
9 contracts written prior to July 1, 2001, for funds not held in
10 trust as of July 1, 2001, or for contracts written prior to
11 December 31, 2004, by any certificateholder authorized to do
12 business in this state that has total bonded liability
13 exceeding $100 million as of July 1, 2001, for funds not held
14 in trust as of July 1, 2001.
15 Section 11. Subsection (2) of section 497.429, Florida
16 Statutes, is amended to read:
17 497.429 Alternative preneed contracts.--
18 (2) The contract must require that a trust be
19 established by the certificateholder on behalf of, and for the
20 use, benefit, and protection of, the purchaser and that the
21 trustee must be a trust company operating pursuant to chapter
22 660, a national or state bank holding trust powers, or a
23 federal or state savings and loan association holding having
24 trust powers or a trust company with the same powers of
25 investment as provided elsewhere in this chapter.
26 Section 12. Subsection (18) of section 470.002,
27 Florida Statutes, is amended to read:
28 470.002 Definitions.--As used in this chapter:
29 (18) "Legally authorized person" means, in the
30 priority listed, the decedent, when written inter vivos
31 authorizations and directions are provided by the decedent,
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1 the surviving spouse, unless the spouse has been arrested for
2 committing against the deceased an act of violence as defined
3 in s. 741.28(1), a son or daughter who is 18 years of age or
4 older, a parent, a brother or sister 18 years of age or over,
5 a grandchild who is 18 years of age or older, or a
6 grandparent; or any person in the next degree of kinship. In
7 addition, the term may include, if no family exists or is
8 available, the following: the guardian of the dead person at
9 the time of death; the personal representative of the
10 deceased; the attorney in fact of the dead person at the time
11 of death; the health surrogate of the dead person at the time
12 of death; a public health officer; the medical examiner,
13 county commission or administrator acting under chapter 245,
14 or other public administrator; a representative of a nursing
15 home or other health care institution in charge of final
16 disposition; or a friend or other person not listed in this
17 subsection who is willing to assume the responsibility as
18 authorized person.
19 Section 13. This act shall take effect July 1, 2001.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 SB 1610
3
4 Removes the provisions which repealed the authority for
funeral and cemetery businesses offering preneed funeral
5 merchandise and services to purchase surety bonds as security
for funds collected on preneed funeral contracts under ss.
6 497.423 and 497.425, F.S.
7 Requires the phasing out of the use of "payment-type" surety
bonds under s. 497.425, F.S., but provides hold harmless
8 provisions as to the current surety bonding arrangements
utilized by certificateholders.
9
Eliminates the responsibility of the Department of Banking and
10 Finance to make a determination as to the need for new
cemeteries in localities.
11
Authorizes federal or state savings and loan associations
12 holding trust powers to handle trust accounts for funeral and
cemetery preneed funds and cemetery care and maintenance
13 funds.
14 Raises the acreage requirement for new cemeteries from 15 to
30 contiguous acres and increases the number of years from 1
15 to 3 for cemetery management experience required for managers
of new cemeteries.
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