House Bill hb0991

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    Florida House of Representatives - 2001                 HB 991

        By Representatives Mayfield, Baxley, Green, Weissman and
    Bean





  1                      A bill to be entitled

  2         An act relating to preneed funeral contracts;

  3         repealing s. 497.417(5), F.S., to delete the

  4         authority of certificateholders offering

  5         preneed funeral merchandise and services to

  6         revest title to trust assets by posting a bond

  7         or using other forms of security or insurance;

  8         repealing ss. 497.423 and 497.425, F.S.;

  9         providing for future repeal of provisions

10         authorizing financial responsibility

11         alternatives to the placing of preneed funeral

12         contract proceeds in trust; providing for

13         continued validity of surety bonds issued prior

14         to the repeal date and prohibiting the use of

15         bonds or other forms of security or insurance

16         after that date; repealing ss. 497.337(2)(c),

17         497.409(2), and 497.427, F.S.; providing for

18         future repeal of provisions relating to

19         delivery requirements for manufacturers of

20         outer burial receptacles, preneed contract

21         disclosure requirements, and proof of

22         compliance with the law with respect to

23         existing merchandise trust funds, respectively,

24         to conform; amending ss. 497.413 and 497.429,

25         F.S.; deleting and revising cross references,

26         to conform; providing effective dates.

27

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

29

30         Section 1.  Subsection (5) of section 497.417, Florida

31  Statutes, is repealed.

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  1         Section 2.  Paragraph (c) of subsection (1) of section

  2  497.429, Florida Statutes, is amended to read:

  3         497.429  Alternative preneed contracts.--

  4         (1)  Nothing in this chapter shall prevent the

  5  purchaser and the certificateholder from executing a preneed

  6  contract upon the terms stated in this section.  Such

  7  contracts shall be subject to all provisions of this chapter

  8  except:

  9         (c)  Section 497.417(1) and, (3), and (5).

10         Section 3.  Effective July 1, 2002, sections 497.423

11  and 497.425, Florida Statutes, are repealed.

12         Section 4.  (1)  All surety bonds entered into pursuant

13  to s. 497.423, Florida Statutes, prior to July 1, 2002, shall

14  remain unimpaired until such time as all obligations secured

15  pursuant to s. 497.423(7), Florida Statutes, are fulfilled. A

16  certificateholder may not secure any new preneed contract

17  entered into after July 1, 2002, with the alternative method

18  authorized by s. 497.423, Florida Statutes, but shall be

19  required to deposit funds into trust pursuant to s. 497.417(1)

20  or s. 497.429, Florida Statutes.

21         (2)  All surety bonds entered into pursuant to s.

22  497.425, Florida Statutes, prior to July 1, 2002, shall remain

23  unimpaired until such time as all obligations secured pursuant

24  to said section are fulfilled, and the requirements of s.

25  497.425(1), Florida Statutes, shall remain in effect until all

26  obligations secured by the bond are fulfilled. A

27  certificateholder may not secure any new preneed contract

28  entered into after July 1, 2002, with the alternative method

29  authorized by s. 497.425, Florida Statutes, but shall be

30  required to deposit funds into trust pursuant to s. 497.417(1)

31  or s. 497.429, Florida Statutes.

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  1         (3)  This section shall take effect July 1, 2002.

  2         Section 5.  Section 497.423, Florida Statutes, reads:

  3         497.423  Evidence of financial responsibility as

  4  alternative to trust deposit.--

  5         (1)  In lieu of depositing funds into a trust as

  6  required by s. 497.417(1) or s. 497.429, a certificateholder

  7  may elect annually, at its discretion, to comply with this

  8  section by filing annually a written request with, and

  9  receiving annual approval from, the board.

10         (2)  No certificateholder shall utilize this section

11  unless it has filed annually a written request with, and

12  received approval by, the board.

13         (3)  The certificateholder receiving approval from the

14  board to comply with this section shall maintain compliance

15  with this section at all times during the period this election

16  is in effect.

17         (4)  The certificateholder's request to be governed by

18  this section shall be in the form prescribed by the board and

19  shall be accompanied by, in addition to other information that

20  the board may require by rule, the surety bond, the audited

21  financial statements, and proof of the other requirements

22  specified in this section, all as described in this section.

23         (5)  For each 12-month period, or any part thereof, in

24  which this section is applicable, the electing

25  certificateholder shall maintain a bond, issued by a surety

26  company admitted to do business in this state, in an amount at

27  least equal to the sum of all amounts not currently in trust,

28  an amount equal to the total purchase price for all installed

29  preneed contracts where the total purchase price has not been

30  collected, excluding those amounts already in trust, all

31  amounts the certificateholder intends to remove from trust if

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  1  the board approves the certificateholder's request to comply

  2  with this section, and an amount equal to 70 percent of the

  3  total purchase price for each preneed contract the

  4  certificateholder expects to sell in the year for which the

  5  certificateholder is electing to comply with this section.

  6  The surety bond shall be conditioned in such a manner to

  7  secure the faithful performance of all conditions of any

  8  preneed contracts for which the certificateholder was required

  9  to have covered by the amount of the bond, including refunds

10  requested pursuant to ss. 497.419 and 497.421.  The surety

11  bond shall also guarantee the financial responsibility of such

12  certificateholder against its default arising out of any of

13  its preneed contracts.  The terms of the surety bond shall

14  cover liabilities arising from all moneys received by the

15  electing certificateholder from preneed contracts for which

16  the certificateholder was required to have covered by the

17  amount of the bond during the time the bond is in effect, and

18  the liability of the surety shall continue until the contracts

19  thereunder are fulfilled.  The bond shall be in favor of the

20  state for the benefit of any person damaged as a result of

21  purchasing a preneed contract from the certificateholder.  The

22  aggregate liability of the surety to all persons for all

23  breaches of the conditions of the bonds shall in no event

24  exceed the amount of the bond.  The per preneed contract

25  liability shall not exceed the amount of the funds received by

26  the certificateholder per preneed contract during the

27  effective period in which the bond is issued. The bond shall

28  be filed and maintained with the board.

29         (6)  The amount of the surety bond shall, upon order of

30  the board, be increased if, in the board's discretion, it

31  finds such increase to be warranted by the volume of preneed

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  1  contracts handled, or expected to be handled, by the

  2  certificateholder.  The surety bond shall be in a form to be

  3  approved by the board, and the board shall have the right to

  4  disapprove any bond which does not provide assurance as

  5  provided in, and required by, this section.

  6         (7)  The bond shall be maintained unimpaired for as

  7  long as the certificateholder continues in business in this

  8  state and continues to utilize this section.  Whenever the

  9  certificateholder notifies the board that it no longer desires

10  to be governed by this section and furnishes to the board

11  satisfactory proof that it has discharged or otherwise

12  adequately provided for all of its obligations to its preneed

13  contract purchasers covered by the bond, such as by evidence

14  satisfactory to the board demonstrating that s. 497.417 or s.

15  497.429 has been complied with, the board shall release the

16  bond to the entitled parties, provided said parties

17  acknowledge receipt of same.

18         (8)  No surety bond used to comply with this section

19  shall be canceled or subject to cancellation unless at least

20  60 days' advance notice thereof, in writing, is filed with the

21  board, by the surety company.  The cancellation of the bond

22  shall not relieve the obligation of the surety company for

23  claims arising out of contracts issued or otherwise covered

24  before cancellation of the bond.  In the event that notice of

25  termination of the bond is filed with the board, the

26  certificateholder insured thereunder shall, within 30 days of

27  the filing of the notice of termination with the board,

28  provide the board with a replacement bond or with evidence

29  which is satisfactory to the board demonstrating that s.

30  497.417 or s. 497.429 has been fully complied with.  If within

31  30 days of filing of the notice of termination with the board

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  1  no replacement bond acceptable to the board or no evidence

  2  satisfactory to the board demonstrating that s. 497.417 or s.

  3  497.429 has been complied with is filed with the board, the

  4  board shall suspend the license of the certificateholder until

  5  the certificateholder files a replacement bond acceptable to

  6  the board or demonstrates to the satisfaction of the board

  7  that it has complied with s. 497.417 or s. 497.429.

  8         (9)  In lieu of the surety bond, the board may provide

  9  by rule for other forms of security or insurance.

10         (10)  Every certificateholder electing to be governed

11  by this section shall have its financial statements, submitted

12  to the department pursuant to s. 497.407, audited by an

13  independent public accountant certified pursuant to chapter

14  473.  The financial statements shall contain, in accordance

15  with generally accepted accounting principles, for two or more

16  consecutive annual periods, the following:

17         (a)  The certified public accountant's unqualified

18  opinion or, in the case of a qualified opinion, a qualified

19  opinion acceptable to the board, and:

20         1.  A balance sheet;

21         2.  A statement of income and expenses; and

22         3.  A statement of changes in financial position.

23         (b)  Notes to the financial statements considered

24  customary or necessary for full disclosure and adequate

25  understanding of the financial statements, financial

26  condition, and operation of the certificateholder.  The notes

27  shall include a schedule, based upon statutory accounting

28  principles, indicating that the certificateholder which has

29  held a certificate pursuant to this chapter for less than 10

30  years has a current ratio of no less than 3 to 1 of current

31  assets to current liabilities and net assets of at least

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  1  $600,000 or that the certificateholder which has held a

  2  certificate pursuant to this chapter for 10 years or more has

  3  a current ratio of no less than 2 to 1 of current assets to

  4  current liabilities and net assets of at least $400,000.

  5         (c)  An indication that the certificateholder has

  6  sufficient funds available to perform the obligations under

  7  all its preneed contracts.

  8         (11)  The board may require that the audited financial

  9  statements be prepared on a calendar-year basis.

10         (12)  The electing certificateholder shall provide the

11  board interim unaudited financial statements on a quarterly

12  basis demonstrating financial compliance with this section.

13         (13)  In lieu of subsections (4)-(11), a

14  certificateholder with net assets of at least $25,000 may

15  request to comply with this section by providing a written

16  guarantee from a qualified guaranteeing organization.  If the

17  certificateholder so elects, the certificateholder's requests

18  to be governed by this section shall be in the form prescribed

19  by the board and shall be accompanied by, in addition to other

20  information the board may require by rule, a written guarantee

21  approved by the board as meeting the requirements of this

22  section from a qualified guaranteeing organization, acceptable

23  to the board, which:

24         (a)  Is either a certificateholder or servicing agent.

25         (b)  Is a corporation formed under the laws of this

26  state or of another state, district, territory, or possession

27  of the United States.

28         (c)  Has been in operation for 10 or more years.

29         (d)  Submits to the board its annual financial

30  statements audited by an independent public accountant

31  certified pursuant to chapter 473.  The financial statements

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  1  shall contain, in accordance with generally accepted

  2  accounting principles, for two or more consecutive annual

  3  periods, the following:

  4         1.  The certified public accountant's unqualified

  5  opinion or, in the case of a qualified opinion, a qualified

  6  opinion acceptable to the board, and:

  7         a.  A balance sheet;

  8         b.  A statement of income and expenses; and

  9         c.  A statement of changes in financial position.

10         2.  Notes to the financial statements considered

11  customary or necessary for full disclosure and adequate

12  understanding of the financial statements, financial

13  condition, and operation of the certificateholder.  The notes

14  shall include a schedule, based upon statutory accounting

15  principles, indicating that the guaranteeing organization has

16  a current ratio of no less than 2 to 1 of current assets to

17  current liabilities and net assets of at least $250,000.

18         (e)  Has sufficient funds available to perform the

19  obligations under its guarantees.

20         (f)  Has complied with subsections (5), (6), (7), and

21  (8), except that the bond shall be maintained by the

22  guaranteeing organization in the minimum aggregate principal

23  amount of $1 million.

24         (g)  Has principals, including directors, officers,

25  stockholders, employees, and agents that are of good moral

26  character and have reputations for fair dealing in business

27  matters, both as determined by the board.

28         Section 6.  Section 497.425, Florida Statutes, reads:

29         497.425  Alternatives to deposits under s. 497.417.--

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

31  497.417 that relate to trust funds, a certificateholder may

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

  2  aggregate value of outstanding liabilities on undelivered

  3  preneed contracts for merchandise and services.  For the

  4  purpose of this section, the term "outstanding liabilities"

  5  means the gross replacement or wholesale value of the preneed

  6  merchandise and services.  The bond shall be made payable to

  7  the State of Florida for the benefit of the board and all

  8  purchasers of preneed cemetery merchandise or services.  The

  9  bond must be approved by the board.

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

11  documenting the outstanding liabilities of the

12  certificateholder and shall be prepared by the

13  certificateholder using generally accepted accounting

14  principles and signed by the certificateholder's chief

15  financial officer.

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

17  certificateholder's fiscal year and updated annually.  The

18  amount of the bond shall be increased or decreased as

19  necessary to correlate with changes in the outstanding

20  liabilities.

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

22  pursuant to this section, the certificateholder shall cease

23  the sale of preneed merchandise and services.

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

25  certificateholder may file a letter of credit with the board

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

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

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

29  the board.

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

31  does not receive such services or merchandise due to the

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  1  economic failure, closing, or bankruptcy of the

  2  certificateholder must file a claim with the surety as a

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

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

  5  against the surety.  In the case of a letter of credit or cash

  6  deposit that has been filed with the board, the buyer may file

  7  a claim with the board.

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

  9  under paragraph (a), the buyer must file the claim no later

10  than 1 year after the date on which the certificateholder

11  closed or bankruptcy was filed.

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

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

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

15  claimants entitled to restitution and shall be relieved of

16  liability to that extent.

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

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

19  number or amount of claims filed.

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

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

22  bond to the board for distribution to claimants entitled to

23  restitution and shall be relieved of all liability under the

24  bond.

25         (4)  The certificateholder shall maintain accurate

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

27  shall be open to inspection by the board.

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

29  is a contract calling for the delivery of merchandise and

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

31  the prospective recipient.

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

  2  other entity from liability for nonperformance of contractual

  3  terms unless the certificateholder cannot deliver the

  4  merchandise or services because of a national emergency,

  5  strike, or act of God.

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

  7  the certificateholder to furnish written verification of the

  8  financial report required to be submitted by the

  9  certificateholder or other entity.

10         (8)  Any preneed contract which promises future

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

12  contract. Merchandise which has been delivered is not covered

13  by the required performance bond or letter of credit even

14  though the contract is not completely paid.  The

15  certificateholder may not cancel a contract unless the

16  purchaser is in default according to the terms of the

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

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

19  the performance bond or letter of credit.

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

21  design of merchandise and the description of service to be

22  delivered or performed.

23         (10)  A purchaser and a certificateholder who are

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

25  may enter into an amended preneed contract which is made

26  subject to this section.

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

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

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

30  liability coverage for preneed merchandise and services.

31

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  1         Section 7.  Effective July 1, 2002, paragraph (c) of

  2  subsection (2) of section 497.337, subsection (2) of section

  3  497.409, and section 497.427, Florida Statutes, are repealed.

  4         Section 8.  Effective July 1, 2002, subsections (2) and

  5  (7) of section 497.413, Florida Statutes, are amended to read:

  6         497.413  Preneed Funeral Contract Consumer Protection

  7  Trust Fund.--

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

  9  quarter, for each preneed contract written during the quarter

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

11  execution of the contract, each certificateholder, whether

12  funding preneed contracts by the sale of insurance or by

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

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

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

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

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

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

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

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

21         (7)  In any situation in which a delinquency proceeding

22  has not commenced, the board may, in its discretion, use the

23  trust fund for the purpose of providing restitution to any

24  consumer, owner, or beneficiary of a preneed contract or

25  similar regulated arrangement under this chapter entered into

26  after June 30, 1977.  If, after investigation, the board

27  determines that a certificateholder has breached a preneed

28  contract by failing to provide benefits or an appropriate

29  refund, or that a provider, who is a former certificateholder

30  or an establishment which has been regulated under this

31  chapter or chapter 470, has sold a preneed contract and has

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  1  failed to fulfill the arrangement or provide the appropriate

  2  refund, and such certificateholder or provider does not

  3  provide or does not possess adequate funds to provide

  4  appropriate refunds, payments from the trust fund may be

  5  authorized by the board. In considering whether payments shall

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

  7  payments, the board shall consider whether the

  8  certificateholder or previous provider has been acquired by a

  9  successor who is or should be responsible for the liabilities

10  of the defaulting entity. With respect to preneed contracts

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

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

13  funds are not available through the liquidation proceeding of

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

15  under the contract and the insurance proceeds are not

16  sufficient to cover the cost of the merchandise and services

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

18  in excess of the insurance policy limits unless it determines

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

20  insurance policy would have paid for the services and

21  merchandise contracted for.  Such monetary relief shall be in

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

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

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

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

26  or s. 497.425, any restitution made pursuant to this

27  subsection shall not exceed, as to any single contract or

28  arrangement, the lesser of the gross amount paid under the

29  contract or 4 percent of the uncommitted assets of the trust

30  fund.  With respect to preneed contracts funded by life

31  insurance policies, any restitution shall not exceed, as to

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  1  any single contract or arrangement, the lesser of the face

  2  amount of the policy, the actual cost of the arrangement

  3  contracted for, or 4 percent of the uncommitted assets of the

  4  trust fund. The total of all restitutions made to all

  5  applicants under this subsection in a single fiscal year shall

  6  not exceed the greater of 30 percent of the uncommitted assets

  7  of the trust fund as of the end of the most recent fiscal year

  8  or $120,000.  The department may use moneys in the trust fund

  9  to contract with independent vendors pursuant to chapter 287

10  to administer the requirements of this subsection.

11         Section 9.  Effective July 1, 2002, subsection (1) of

12  section 497.429, Florida Statutes, as amended by this act, is

13  amended to read:

14         497.429  Alternative preneed contracts.--

15         (1)  Nothing in this chapter shall prevent the

16  purchaser and the certificateholder from executing a preneed

17  contract upon the terms stated in this section.  Such

18  contracts shall be subject to all provisions of this chapter

19  except:

20         (a)  Section 497.409(2).

21         (b)  Section 497.415.

22         (c)  Section 497.417(1) and (3).

23         (d)  Section 497.419(1), (2), and (5).

24         (e)  Section 497.421.

25         (f)  Section 497.423.

26         (g)  Section 497.425.

27         Section 10.  Except as otherwise provided herein, this

28  act shall take effect July 1, 2001.

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

  2                          HOUSE SUMMARY

  3
      Repeals the authority of certificateholders offering
  4    preneed funeral merchandise and services to revest title
      to preneed contract trust assets by posting a bond or
  5    using other forms of security or insurance. Provides for
      future repeal of provisions authorizing financial
  6    responsibility alternatives to the placing of preneed
      funeral contract funds in trust. Provides for continued
  7    validity of surety bonds issued prior to the repeal date,
      and prohibits the use of bonds or other forms of security
  8    or insurance after that date. See bill for details.

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