Senate Bill sb0528c2
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Florida Senate - 2004 CS for CS for SB 528
By the Committees on Banking and Insurance; Regulated
Industries; and Senators Pruitt, Haridopolos and Posey
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1 A bill to be entitled
2 An act relating to funeral directing,
3 embalming, direct disposition, and cemetery
4 services; amending s. 20.121, F.S.;
5 establishing the Division of Funeral, Cemetery,
6 and Consumer Services and the Board of Funeral,
7 Cemetery, and Consumer Services within the
8 Department of Financial Services; amending s.
9 20.165, F.S.; abolishing the Board of Funeral
10 Directors and Embalmers within the Department
11 of Business and Professional Regulation;
12 amending s. 455.2226, F.S.; conforming a
13 reference; amending ss. 470.002 and 497.005,
14 F.S.; conforming definitions; amending s.
15 497.105, F.S.; conforming references; repealing
16 ss. 470.003, 497.107, and 497.109, F.S.,
17 relating to the Board of Funeral Directors and
18 Embalmers and the Board of Funeral and Cemetery
19 Services, to conform; amending s. 497.101,
20 F.S.; creating the Board of Funeral, Cemetery,
21 and Consumer Services; providing for the
22 appointment of board members; providing terms
23 of office; providing grounds for removal or
24 suspension of a member; providing immunity from
25 liability for members acting in an official
26 capacity; specifying the headquarters for the
27 board; providing for compensation and
28 reimbursement for per diem expenses; creating
29 s. 497.102, F.S.; providing for the authority
30 of the board; creating s. 497.1021, F.S.;
31 providing duties of the Division of Funeral,
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1 Cemetery, and Consumer Services; providing
2 powers of enforcement; creating s. 497.1022,
3 F.S.; establishing the office of the director
4 of the division; providing duties of the Chief
5 Financial Officer under chapters 470 and 497,
6 F.S.; providing for a type two transfer of the
7 Board of Funeral Directors and Embalmers to the
8 Department of Financial Services; providing for
9 validity of judicial and administrative
10 actions; providing for validity of licenses;
11 providing for continuity of rules; abolishing
12 the Board of Funeral and Cemetery Services and
13 the Board of Funeral Directors and Embalmers;
14 providing for deposit of fees; directing the
15 Division of Statutory Revision to conform the
16 statutes; amending s. 470.002, F.S.; revising
17 and providing definitions; amending s.
18 470.0085, F.S.; extending the embalmer
19 apprentice period; amending s. 470.018, F.S.;
20 increasing continuing education requirements;
21 amending s. 470.021, F.S.; providing additional
22 requirements for a direct disposal
23 establishment; providing inspection
24 requirements and criteria; amending s. 470.024,
25 F.S.; revising requirements for a funeral
26 establishment; amending s. 470.025, F.S.;
27 revising cremation requirements for cinerator
28 facilities relating to simultaneous cremations,
29 body parts, cremation containers, and the
30 cremation chamber; providing an exemption from
31 liability for unintentional or incidental
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1 commingling of remains under certain
2 conditions; amending s. 470.0255, F.S.;
3 providing for cremation of parts of human
4 bodies incidental to final disposition;
5 amending s. 470.028, F.S.; providing for
6 control and supervision of preneed agents;
7 amending s. 470.029, F.S.; extending the filing
8 time for reports of bodies embalmed or handled;
9 amending s. 470.031, F.S.; prohibiting any
10 guarantee on the future price of any goods or
11 services; providing penalties; amending s.
12 470.0355, F.S.; revising requirements for
13 identification of human remains prior to final
14 disposition; providing requirements for
15 identification of human remains in licensed and
16 unlicensed cemeteries and by direct disposal
17 establishments; reenacting s. 470.036(1)(a),
18 F.S., relating to disciplinary proceedings, to
19 incorporate the amendment to s. 470.031, F.S.,
20 in a reference thereto; amending s. 497.005,
21 F.S.; revising and providing definitions;
22 amending s. 497.305, F.S.; requiring that a
23 cemetery company comply with its adopted
24 bylaws; creating s. 497.306, F.S.; providing
25 dimension and spacing standards for grave
26 spaces; requiring a map of reference markers
27 and a land survey for areas proposed to be
28 developed by a licensed cemetery company;
29 exempting adult grave spaces previously
30 established; creating s. 497.307, F.S.;
31 providing requirements for identification of
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1 human remains in licensed cemeteries; amending
2 s. 497.325, F.S.; providing for procedures
3 established by other entities operating a
4 cemetery; amending s. 497.333, F.S.; providing
5 for disclosure of certain information to
6 customers; amending s. 497.361, F.S.; providing
7 for approval of contracts; creating s. 497.365,
8 F.S.; providing for regulation of monument
9 establishments by the Department of Financial
10 Services; providing for inspections; providing
11 for rules; providing that the department may
12 not unreasonably restrict commerce; creating s.
13 497.371, F.S.; providing for specifications for
14 business locations; creating s. 497.379, F.S.;
15 providing for the licensure of monument
16 establishments that sell preneed contracts;
17 creating s. 497.385, F.S.; providing for
18 registration of monument sales representatives;
19 creating s. 497.391, F.S.; providing for
20 approval of preneed contracts by the board;
21 creating s. 497.395, F.S.; providing financial
22 requirements for monument establishments;
23 providing requirements for minimum net worth;
24 providing for submission of financial
25 statements; providing for minimum sales volume
26 with respect to preneed contracts; providing
27 for guarantee agreements; providing for
28 additional oversight in lieu of financial
29 requirements; amending s. 497.405, F.S.;
30 prohibiting any person from advertising for
31 sale or making any arrangement for a preneed
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1 contract without having a valid certificate of
2 authority; expanding the exemption from the
3 required certificate of authority for certain
4 religious-institution-owned cemeteries to
5 include the sale and opening or closing of
6 cremation interment containers to members and
7 family members of the religious institution;
8 amending s. 497.419, F.S.; requiring preneed
9 contracts to include in the refund notice the
10 exclusion for amounts allocable to burial
11 rights, merchandise, and services used by the
12 purchaser; providing conditions for breach of
13 contract by certificateholder and for rights of
14 purchaser; amending s. 497.436, F.S.;
15 authorizing the Board of Funeral and Cemetery
16 Services to review the trust funds, trust
17 agreements, and outstanding preneed contracts
18 of, and perform other procedures at its
19 discretion with respect to, a certificateholder
20 filing notice to become inactive; amending s.
21 406.50, F.S.; defining the term "unclaimed";
22 providing for the prioritizing of claims for
23 dead bodies; amending s. 406.53, F.S.;
24 providing for the claiming of dead bodies by
25 indigent relatives; defining the term
26 "indigent"; providing effective dates.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Effective October 1, 2005, paragraph (n) is
31 added to subsection (2) of section 20.121, Florida Statutes,
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1 and present subsection (4) of that section is redesigned as
2 subsection (5) and a new subsection (4) is added to that
3 section, to read:
4 20.121 Department of Financial Services.--There is
5 created a Department of Financial Services.
6 (2) DIVISIONS.--The Department of Financial Services
7 shall consist of the following divisions:
8 (n) Division of Funeral, Cemetery, and Consumer
9 Services.
10 (4) BOARD OF FUNERAL, CEMETERY, AND CONSUMER
11 SERVICES.--There is created within the Department of Financial
12 Services the Board of Funeral, Cemetery, and Consumer
13 Services.
14 Section 2. Effective October 1, 2005, paragraph (a) of
15 subsection (4) of section 20.165, Florida Statutes, is amended
16 to read:
17 20.165 Department of Business and Professional
18 Regulation.--There is created a Department of Business and
19 Professional Regulation.
20 (4)(a) The following boards are established within the
21 Division of Professions:
22 1. Board of Architecture and Interior Design, created
23 under part I of chapter 481.
24 2. Florida Board of Auctioneers, created under part VI
25 of chapter 468.
26 3. Barbers' Board, created under chapter 476.
27 4. Florida Building Code Administrators and Inspectors
28 Board, created under part XII of chapter 468.
29 5. Construction Industry Licensing Board, created
30 under part I of chapter 489.
31 6. Board of Cosmetology, created under chapter 477.
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1 7. Electrical Contractors' Licensing Board, created
2 under part II of chapter 489.
3 8. Board of Employee Leasing Companies, created under
4 part XI of chapter 468.
5 9. Board of Funeral Directors and Embalmers, created
6 under chapter 470.
7 9.10. Board of Landscape Architecture, created under
8 part II of chapter 481.
9 10.11. Board of Pilot Commissioners, created under
10 chapter 310.
11 11.12. Board of Professional Engineers, created under
12 chapter 471.
13 12.13. Board of Professional Geologists, created under
14 chapter 492.
15 13.14. Board of Professional Surveyors and Mappers,
16 created under chapter 472.
17 14.15. Board of Veterinary Medicine, created under
18 chapter 474.
19 Section 3. Effective October 1, 2005, subsection (1)
20 of section 455.2226, Florida Statutes, is amended to read:
21 455.2226 Funeral directors and embalmers; instruction
22 on HIV and AIDS.--
23 (1) The Board of Funeral, Cemetery, and Consumer
24 Services Funeral Directors and Embalmers shall require each
25 person licensed or certified under chapter 470 to complete a
26 continuing educational course, approved by the board, on human
27 immunodeficiency virus and acquired immune deficiency syndrome
28 as part of biennial relicensure or recertification. The course
29 shall consist of education on the modes of transmission,
30 infection control procedures, clinical management, and
31 prevention of human immunodeficiency virus and acquired immune
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1 deficiency syndrome. Such course shall include information on
2 current Florida law on acquired immune deficiency syndrome and
3 its impact on testing, confidentiality of test results, and
4 treatment of patients.
5 Section 4. Effective October 1, 2005, subsections (3)
6 and (14) of section 470.002, Florida Statutes, as amended by
7 this act, are amended to read:
8 470.002 Definitions.--As used in this chapter:
9 (3) "Board" means the Board of Funeral, Cemetery, and
10 Consumer Services Funeral Directors and Embalmers.
11 (14) "Department" means the Department of Financial
12 Services Business and Professional Regulation.
13 Section 5. Effective October 1, 2005, subsection (4)
14 of section 497.005, Florida Statutes, as amended by this act,
15 is amended, and subsections (36) and (37) are added to that
16 section, to read:
17 497.005 Definitions.--As used in this chapter:
18 (4) "Board" means the Board of Funeral, Cemetery, and
19 Consumer Services Funeral and Cemetery Services.
20 (36) "Director" means the director of the Division of
21 Funeral, Cemetery, and Consumer Services.
22 (37) "Division" means the Division of Funeral,
23 Cemetery, and Consumer Services within the Department of
24 Financial Services.
25 Section 6. Effective October 1, 2005, subsection (2)
26 of section 497.105, Florida Statutes, is amended to read:
27 497.105 Department; powers and duties.--The department
28 shall:
29 (2) Appoint the executive director of the board of
30 Funeral and Cemetery Services, subject to the approval of the
31 board.
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1 Section 7. Effective October 1, 2005, sections
2 470.003, 497.107, 497.109, Florida Statutes, are repealed.
3 Section 8. Effective October 1, 2005, section 497.101,
4 Florida Statutes, is amended to read:
5 (Substantial rewording of section. See
6 s. 497.101, F.S., for present text.)
7 497.101 Board of Funeral, Cemetery, and Consumer
8 Services; membership; appointment; terms.--
9 (1) The Board of Funeral, Cemetery, and Consumer
10 Services is created within the Department of Financial
11 Services and shall consist of 10 members, nine of whom shall
12 be appointed by the Governor from nominations made by the
13 Chief Financial Officer and confirmed by the Senate. The
14 Chief Financial Officer shall nominate three persons for each
15 of the nine vacancies on the board, and the Governor shall
16 fill each vacancy on the board by appointing one of the three
17 persons nominated by the Chief Financial Officer to fill that
18 vacancy. If the Governor objects to each of the three
19 nominations for a vacancy, she or he shall inform the Chief
20 Financial Officer in writing. Upon notification of an
21 objection by the Governor, the Chief Financial Officer shall
22 submit three additional nominations for that vacancy until the
23 vacancy is filled. One member must be the State Health
24 Officer or his or her designee.
25 (2) Two members of the board must be funeral directors
26 licensed under chapter 470 who are associated with a funeral
27 establishment. One member of the board must be a funeral
28 director licensed under chapter 470 who is associated with a
29 funeral establishment licensed pursuant to chapter 470 which
30 has a valid certificate of authority issued pursuant to this
31 chapter and who owns or operates a cinerator facility approved
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1 pursuant to chapters 403 and 470. Two members of the board
2 must be persons whose primary occupation is associated with a
3 cemetery company licensed pursuant to this chapter. Three
4 members of the board must be consumers who are residents of
5 the state; have never been licensed as funeral directors or
6 embalmers; are not connected with a cemetery or cemetery
7 company licensed pursuant to this chapter; and are not
8 connected with the death care industry or the practice of
9 embalming, funeral directing, or direct disposition. One of
10 the consumer members must be at least 60 years of age or older
11 and one must be licensed as a certified public accountant
12 pursuant to chapter 473. One member of the board must be a
13 monument dealer licensed under this chapter. One member must
14 be the State Health Officer or his or her designee.
15 (3) Board members shall be appointed for terms of 4
16 years and the State Health Officer shall serve as long as that
17 person holds that office. The designee of the State Health
18 Officer shall serve at the pleasure of the Governor. When the
19 terms of the initial board members expire, the Chief Financial
20 Officer shall stagger the terms of the successor members as
21 follows: one funeral director, one cemetery representative,
22 the monument dealer, and one consumer member shall be
23 appointed for terms of 2 years, and the remaining members
24 shall be appointed for terms of 4 years. All subsequent terms
25 shall be for 4 years.
26 (4) The Governor may suspend or remove any board
27 member for malfeasance or misfeasance, neglect of duty,
28 incompetence, substantial inability to perform official
29 duties, commission of a crime, or for other substantial cause
30 as determined by the Governor to evidence a lack of fitness to
31 sit on the board. A board member shall be deemed to have
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1 resigned his or her board membership, and that position shall
2 be deemed vacant, upon the failure of the member to attend
3 three consecutive meetings of the board or at least half of
4 the meetings of the board during any 12-month period, unless
5 the Chief Financial Officer determines that there was good and
6 adequate justification for the absences and that such absences
7 are not likely to continue.
8 (5) A current or former board member and a person
9 serving on the board's probable cause panels are exempt from
10 any civil liability for any act or omission when acting in
11 good faith in his or her official capacity, and the Department
12 of Legal Affairs and the Division of Risk Management shall
13 defend such board member in any civil action against such
14 person arising from any such act or omission.
15 (6) The headquarters and records of the board shall be
16 in the Division of Funeral, Cemetery, and Consumer Services of
17 the Department of Financial Services in Tallahassee. The
18 Chief Financial Officer shall annually appoint from among the
19 board members a chairperson and vice chairperson of the
20 board. The board shall meet at least every 6 months, and more
21 often as necessary. Special meetings of the board shall be
22 convened upon the direction of the Chief Financial Officer. A
23 quorum is necessary for the conduct of business by the board.
24 Unless otherwise provided by law, six board members other than
25 the board's executive director shall constitute a quorum for
26 the conduct of the board's business.
27 (7) A board member shall be compensated $50 for each
28 day the member attends an official meeting and each day the
29 member participates at the request of the board's executive
30 director in any other business involving the board. To the
31 extent authorized by the s. 112.061, a board member is
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1 entitled to reimbursement for expenses incurred in connection
2 with official duties. Out-of-state travel by board members on
3 official business shall, in each specific instance, require
4 the advance approval of the board's executive director in
5 order for the travel to be eligible for reimbursement of
6 expenses.
7 Section 9. Effective October 1, 2005, section 497.102,
8 Florida Statutes, is created to read:
9 497.102 Authority of the board.--
10 (1) The board shall enforce and administer the
11 provisions of chapter 470 and this chapter. Notwithstanding s.
12 455.017, the board shall administer those powers, duties, and
13 functions in chapter 455 which are necessary to enforce the
14 provisions of chapter 470.
15 (2) For purposes of enforcement of chapter 455
16 regarding chapter 470, on and after October 1, 2005,
17 references in chapter 455 to the Department of Business and
18 Professional Regulation or the secretary of that department
19 shall instead refer to the Department of Financial Services or
20 the Chief Financial Officer, as the context may require.
21 (3) The Department of Financial Services may not adopt
22 any rule or publish any notice of proposed rule development as
23 provided in ss. 120.536-120.551 which affects the provisions
24 of chapter 455, chapter 470, or this chapter without first
25 presenting the rule proposed for development to the board for
26 its review and recommendation, if any. This subsection does
27 not apply to emergency rulemaking under s. 120.54(4).
28 Section 10. Effective October 1, 2005, section
29 497.1021, Florida Statutes, is created to read:
30 497.1021 Division of Funeral, Cemetery, and Consumer
31 Services.--
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1 (1) There is created within the Department of
2 Financial Services the Division of Funeral, Cemetery, and
3 Consumer Services. The division shall enforce the provisions
4 of chapter 470 and this chapter and perform such other acts as
5 may be necessary to carry out the provisions of this chapter.
6 (2) The division shall provide all services concerning
7 chapter 470 and this chapter, including, but not limited to,
8 recordkeeping services, examination services, legal services,
9 and investigative services. Those services in chapter 455
10 necessary to perform the duties of chapter 470 shall be
11 provided by the division.
12 (3) Funds received as a result of settlements with
13 regulated entities and persons may be used by the division for
14 contracting for the training of auditors and the conduct of
15 examinations in order to enhance oversight and enforcement of
16 laws and regulations governing the activities of licensees.
17 Section 11. Effective October 1, 2005, section
18 497.1022, Florida Statutes, is created to read:
19 497.1022 Director of the Division of Funeral,
20 Cemetery, and Consumer Services.--
21 (1) The office of the Director of the Division of
22 Funeral, Cemetery, and Consumer Services is created. The
23 director is the agency head of the division. The director
24 shall be appointed by the Chief Financial Officer and shall
25 serve at the pleasure of the Chief Financial Officer.
26 (2) The director shall be responsible for the
27 preparation of the board agenda, presentation of division
28 staff recommendations, and reports of the activities of the
29 division to the board and shall serve as the executive
30 director of the board and perform such other duties as may be
31 assigned by the Chief Financial Officer.
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1 Section 12. Effective October 1, 2005, all duties
2 performed by the Secretary of the Department of Business and
3 Professional Regulation under chapter 470, Florida Statutes,
4 shall be performed by the Chief Financial Officer under the
5 provisions of this act. The duties may be delegated by the
6 Chief Financial Officer to the Director of the Division of
7 Funeral, Cemetery, and Consumer Services.
8 Section 13. (1) All of the statutory powers, duties
9 and functions, records, personnel, property, and unexpended
10 balances of appropriations, allocations, or other funds for
11 the administration of chapter 470, Florida Statutes, related
12 to the Board of Funeral Directors and Embalmers shall be
13 transferred by a type two transfer, as defined in section
14 20.06(2), Florida Statutes, from the Department of Business
15 and Professional Regulation to the Board of Funeral, Cemetery,
16 and Consumer Services within the Department of Financial
17 Services.
18 (2) The transfer of regulatory authority over chapter
19 470, Florida Statutes, provided by this act shall not affect
20 the validity of any judicial or administrative action
21 involving the Board of Funeral Directors and Embalmers or the
22 Department of Business and Professional Regulation pending on
23 September 30, 2005, and the Department of Financial Services
24 or the Board of Funeral, Cemetery, and Consumer Services shall
25 be substituted as a party in interest in any such action.
26 (3) Notwithstanding the transfer of regulatory
27 authority over chapter 470, Florida Statutes, provided by this
28 act, all licenses and registrations issued pursuant to chapter
29 470, Florida Statutes, which are valid on September 30, 2005,
30 shall remain in effect, subject to the provisions of chapters
31 470 and 455, Florida Statutes.
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1 (4) The rules of the Board of Funeral Directors and
2 Embalmers and the Department of Business and Professional
3 Regulation which were in effect on midnight, September 30,
4 2005, shall become the rules of the Department of Financial
5 Services as is appropriate to the corresponding regulatory
6 function and shall remain in effect until specifically amended
7 or repealed in the manner provided by law.
8 (5) All of the statutory powers, duties and functions,
9 records, personnel, property, and unexpended balances of
10 appropriations, allocations, or other funds for the
11 administration of chapter 497, Florida Statutes, related to
12 the Board of Funeral and Cemetery Services shall be
13 transferred by a type two transfer, as defined in section
14 20.06(2), Florida Statutes, to the Board of Funeral, Cemetery,
15 and Consumer Services within the Department of Financial
16 Services.
17 (6) The transfer of regulatory authority over chapter
18 497, Florida Statutes, provided by this act shall not affect
19 the validity of any judicial or administrative action
20 involving the Board of Funeral and Cemetery Services pending
21 on September 30, 2005, and the Board of Funeral, Cemetery, and
22 Consumer Services shall be substituted as a party in interest
23 in any such action.
24 (7) Notwithstanding the transfer of regulatory
25 authority over chapter 497, Florida Statutes, provided by this
26 act, all licenses and registrations issued pursuant to chapter
27 497, Florida Statutes, which are valid on September 30, 2005,
28 shall remain in effect subject to the provisions of chapter
29 497, Florida Statutes.
30 (8) The rules of the Board of Funeral and Cemetery
31 Services which were in effect on midnight, September 30, 2005,
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1 shall remain in effect until specifically amended or repealed
2 in the manner provided by law.
3 (9) This section shall take effect on October 1, 2005.
4 Section 14. Effective midnight September 30, 2005, the
5 Board of Funeral and Cemetery Services and the Board of
6 Funeral Directors and Embalmers are abolished.
7 Section 15. Effective October 1, 2005, all fees
8 collected pursuant to the provisions of chapters 470 and 497,
9 Florida Statutes, shall be deposited in the Regulatory Trust
10 Fund in the Department of Financial Services.
11 Section 16. The Legislature recognizes that there is a
12 need to conform the Florida Statutes to the policy decisions
13 reflected in the provisions of this act. The Division of
14 Statutory Revision is directed to provide the relevant
15 substantive committees of the Senate and the House of
16 Representatives with assistance, upon request, to enable such
17 committees to prepare draft legislation to conform the Florida
18 Statutes to the provisions of this act.
19 Section 17. Section 470.002, Florida Statutes, is
20 amended to read:
21 470.002 Definitions.--As used in this chapter:
22 (1)(15) "Alternative container" means a nonmetal
23 receptacle or enclosure which is less expensive than a casket
24 and of sufficient strength to be used to hold and transport a
25 dead human body.
26 (2)(22) "At-need solicitation" means any uninvited
27 contact by a funeral director or direct disposer for the
28 purpose of the sale of funeral services or merchandise to the
29 family or next of kin of a person after that person has died.
30 (3)(2) "Board" means the Board of Funeral Directors
31 and Embalmers.
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1 (4) "Body parts" means:
2 (a) Limbs or other portions of the anatomy which are
3 removed from a person or human remains for medical purposes
4 during treatment, surgery, biopsy, autopsy, or medical
5 research; or
6 (b) Human bodies or any portions of human bodies which
7 have been donated to science for medical research purposes.
8 (5)(16) "Casket" means a rigid container which is
9 designed for the encasement of human remains for burial, and
10 which is usually constructed of wood or metal, ornamented, and
11 lined with fabric, and which may or may not be combustible.
12 (6)(27) "Centralized embalming facility" means a
13 facility, not physically connected with a funeral
14 establishment, in which embalming takes place.
15 (7)(14) "Cinerator" means a facility where dead human
16 bodies are reduced to a residue, including bone fragments, by
17 direct flame, also known as "cremation," or by intense heat,
18 also known as "calcination."
19 (8) "Closed container" means any container in which
20 cremated remains can be placed and closed in a manner so as to
21 prevent leakage or spillage of the remains.
22 (9) "Cremated remains" means all the remains of the
23 human body recovered after the completion of the cremation
24 process, including processing or pulverization which leaves
25 only bone fragments reduced to unidentifiable dimensions and
26 may include the residue of any foreign matter, including
27 casket material, bridgework, or eyeglasses that were cremated
28 with the human remains.
29 (10)(24) "Cremation" means the technical process,
30 using direct flame and heat or chemical means, which reduces
31 human remains to bone fragments through heat and evaporation.
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1 Cremation includes the processing and usually includes the
2 pulverization of the bone fragments includes any mechanical or
3 thermal process whereby a dead human body is reduced to ashes
4 and bone fragments. Cremation also includes any other
5 mechanical or thermal process whereby human remains are
6 pulverized, burned, recremated, or otherwise further reduced
7 in size or quantity.
8 (11) "Cremation chamber" means the enclosed space
9 within which the cremation process takes place. Cremation
10 chambers covered by these procedures must be used exclusively
11 for the cremation of human remains.
12 (12) "Cremation container" means the container in
13 which the human remains are transported to and placed in the
14 cremation chamber for a cremation. A cremation container
15 should meet substantially all of the following standards:
16 (a) Be composed of readily combustible materials
17 suitable for cremation.
18 (b) Be able to be closed in order to provide a
19 complete covering for the human remains.
20 (c) Be resistant to leakage or spillage.
21 (d) Be rigid enough to be handled with ease.
22 (e) Be able to provide protection for the health,
23 safety, and personal integrity of crematory personnel.
24 (13) "Cremation interment container" means a rigid
25 outer container that, subject to a cemetery's rules and
26 regulations, is composed of concrete, steel, fiberglass, or
27 some similar material in which an urn is placed prior to being
28 interred in the ground and that is designed to support the
29 earth above the urn.
30 (14)(1) "Department" means the Department of Business
31 and Professional Regulation.
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1 (15)(8) "Direct disposal establishment" means a
2 facility registered under this chapter where a direct disposer
3 practices direct disposition.
4 (16)(9) "Direct disposer" means any person registered
5 under this chapter to practice direct disposition in this
6 state.
7 (17)(28) "Disinterment" means removal of a dead human
8 body from earth interment or aboveground interment.
9 (18)(5) "Embalmer" means any person licensed under
10 this chapter to practice embalming in this state.
11 (19)(11) "Final disposition" means the final disposal
12 of a dead human body by earth interment, aboveground
13 interment, cremation, burial at sea, or delivery to a medical
14 institution for lawful dissection if the medical institution
15 assumes responsibility for disposal. "Final disposition" does
16 not include the disposal or distribution of ashes and residue
17 of cremated human remains.
18 (20)(13) "Funeral" or "funeral service" means the
19 observances, services, or ceremonies held to commemorate the
20 life of a specific deceased human being, and at which the
21 human remains are present.
22 (21)(3) "Funeral director" means any person licensed
23 under this chapter to practice funeral directing in this
24 state.
25 (22)(7) "Funeral establishment" means a facility
26 licensed under this chapter where a funeral director or
27 embalmer practices funeral directing or embalming.
28 (23)(12) "Funeral merchandise" or "merchandise" means
29 any merchandise commonly sold in connection with the funeral,
30 final disposition, or memorialization of human remains,
31 including, but not limited to, caskets, outer burial
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1 containers, alternative containers, cremation containers,
2 cremation interment containers, urns, monuments, private
3 mausoleums, flowers, shrubs, benches, vases, acknowledgment
4 cards, register books, memory folders, prayer cards, and
5 clothing.
6 (24)(23) "Human remains" or "remains," "dead human
7 body" or "dead human bodies," means the body of a deceased
8 human person for which a death certificate or fetal death
9 certificate is required under chapter 382 and includes the
10 body in any stage of decomposition and the residue of cremated
11 human bodies.
12 (25)(18) "Legally authorized person" means, in the
13 priority listed, the decedent, when written inter vivos
14 authorizations and directions are provided by the decedent,
15 the surviving spouse, unless the spouse has been arrested for
16 committing against the deceased an act of domestic violence as
17 defined in s. 741.28 which resulted in or contributed to the
18 death of the deceased, a son or daughter who is 18 years of
19 age or older, a parent, a brother or sister 18 years of age or
20 over, a grandchild who is 18 years of age or older, or a
21 grandparent; or any person in the next degree of kinship. In
22 addition, the term may include, if no family exists or is
23 available, the following: the guardian of the dead person at
24 the time of death; the personal representative of the
25 deceased; the attorney in fact of the dead person at the time
26 of death; the health surrogate of the dead person at the time
27 of death; a public health officer; the medical examiner,
28 county commission or administrator acting under part II of
29 chapter 406, or other public administrator; a representative
30 of a nursing home or other health care institution in charge
31 of final disposition; or a friend or other person not listed
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1 in this subsection who is willing to assume the responsibility
2 as authorized person. Where there is a person in any priority
3 class listed in this subsection, the funeral establishment
4 shall rely upon the authorization of any one legally
5 authorized person of that class if that individual represents
6 that he or she is not aware of any objection to the cremation
7 of the deceased's human remains by others in the same class of
8 the person making the representation or of any person in a
9 higher priority class.
10 (26) "Niche" means a compartment or cubicle for the
11 memorialization or permanent placement of a container or urn
12 containing cremated remains.
13 (27)(19) "Outer burial container" means an enclosure
14 into which a casket is placed, including, but not limited to,
15 a vault made of concrete, steel, fiberglass, or copper, a
16 sectional concrete enclosure, a crypt, or a wooden enclosure.
17 (28)(20) "Personal residence" means any residential
18 building in which one temporarily or permanently maintains his
19 or her abode, including, but not limited to, an apartment or a
20 hotel, motel, nursing home, convalescent home, home for the
21 aged, or a public or private institution.
22 (29)(10) "Practice of direct disposition" means the
23 cremation of human remains without preparation of the human
24 remains by embalming and without any attendant services or
25 rites such as funeral or graveside services or the making of
26 arrangements for such final disposition.
27 (30)(6) "Practice of embalming" means disinfecting or
28 preserving or attempting to disinfect or preserve dead human
29 bodies by replacing certain body fluids with preserving and
30 disinfecting chemicals.
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1 (31)(4) "Practice of funeral directing" means the
2 performance by a licensed funeral director of any of those
3 functions authorized by s. 470.0087.
4 (32)(21) "Preneed sales agent" means any person who is
5 registered under chapter 497 to sell preneed burial or funeral
6 service and merchandise contracts or direct disposition
7 contracts in this state.
8 (33) "Processing" means the reduction of identifiable
9 bone fragments after the completion of the cremation process
10 to unidentifiable bone fragments by manual means.
11 (34) "Pulverization" means the reduction of
12 identifiable bone fragments after the completion of the
13 cremation and processing to granulated particles by manual or
14 mechanical means.
15 (35)(25) "Refrigeration facility" means a facility
16 that is not physically connected with a funeral establishment,
17 crematory or direct disposal establishment, that maintains
18 space and equipment for the storage and refrigeration of dead
19 human bodies, and that offers its service to funeral directors
20 and funeral establishments for a fee.
21 (36)(26) "Removal service" means any service that
22 operates independently of a funeral establishment, that
23 handles the initial removal of dead human bodies, and that
24 offers its service to funeral establishments and direct
25 disposal establishments for a fee.
26 (37)(17) "Solicitation" means any communication which
27 directly or implicitly requests an immediate oral response
28 from the recipient.
29 (38) "Temporary container" means a receptacle for
30 cremated remains usually made of cardboard, plastic, or
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1 similar material designated to hold the cremated remains until
2 an urn or other permanent container is acquired.
3 (39) "Urn" means a receptacle designed to permanently
4 encase cremated remains.
5 Section 18. Section 470.0085, Florida Statutes, is
6 amended to read:
7 470.0085 Establishment of embalmer apprentice
8 program.--The board may adopt rules establishing an embalmer
9 apprentice program. An embalmer apprentice may perform only
10 those tasks, functions, and duties relating to embalming which
11 are performed under the direct supervision of a licensed
12 embalmer. An embalmer apprentice shall be eligible to serve in
13 an apprentice capacity for a period not to exceed 3 years 1
14 year as may be determined by board rule or for a period not to
15 exceed 5 3 years if the apprentice is enrolled in and
16 attending a course in mortuary science or funeral service
17 education at any mortuary college or funeral service education
18 college or school. An embalmer apprentice shall be registered
19 with the board upon payment of a registration fee not to
20 exceed $50.
21 Section 19. Subsection (2) of section 470.018, Florida
22 Statutes, is amended to read:
23 470.018 Renewal of registration of direct disposer.--
24 (1) The department shall renew a registration upon
25 receipt of the renewal application and fee set by the
26 department not to exceed $250.
27 (2) The department shall adopt rules establishing a
28 procedure for the biennial renewal of registrations. The board
29 shall prescribe by rule continuing education requirements of
30 up to 6 3 classroom hours and may by rule establish criteria
31 for accepting alternative nonclassroom continuing education on
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1 an hour-for-hour basis, in addition to a board-approved course
2 on communicable diseases that includes the course on human
3 immunodeficiency virus and acquired immune deficiency syndrome
4 required by s. 455.2226, for the renewal of a registration.
5 Section 20. Subsections (2) and (5) of section
6 470.021, Florida Statutes, are amended to read:
7 470.021 Direct disposal establishment; standards and
8 location; registration.--
9 (2) The practice of direct disposition must be engaged
10 in at a fixed location of at least 625 interior contiguous
11 square feet and must maintain or make arrangements for
12 suitable capacity for the refrigeration and storage of dead
13 human bodies handled and stored by the establishment. No
14 person may open or maintain an establishment at which to
15 engage in or hold himself or herself out as engaging in the
16 practice of direct disposition unless such establishment is
17 registered with the board. Any change in location of such
18 establishment shall be reported promptly to the board as
19 prescribed by rule of the board.
20 (5)(a) Each direct disposal establishment shall at all
21 times be subject to the inspection of all its buildings,
22 grounds, and vehicles used in the conduct of its business, by
23 the department, the Department of Health, and local government
24 inspectors and by their agents. The board shall adopt rules
25 which establish such inspection requirements.
26 (b) The board shall set by rule an annual inspection
27 fee not to exceed $100, payable upon application for
28 registration and upon each renewal of such registration.
29 (c) Each cinerator facility must be inspected prior to
30 the issuance and renewal of its license and shall:
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1 1. Maintain one or more retorts for the reduction of
2 dead human bodies.
3 2. Maintain refrigeration that satisfies the standards
4 set by the Department of Health and contains a sufficient
5 number of shelves for the average daily number of bodies
6 stored, if unembalmed bodies are kept at the site.
7 3. Maintain sufficient pollution control equipment to
8 comply with requirements of the Department of Environmental
9 Protection in order to secure annual approved certification.
10 4. Either have on site or immediately available
11 sufficient sealed containers of a type required for the
12 transportation of bodies as specified in Rule 10D-37.012,
13 F.A.C.
14 5. Maintain the premises in a clean and sanitary
15 condition.
16 6. Have appropriate Department of Environmental
17 Protection permits.
18 7. Retain all signed contracts for a period of at
19 least 2 years.
20 Section 21. Subsection (1) of section 470.024, Florida
21 Statutes, is amended to read:
22 470.024 Funeral establishment; licensure.--
23 (1) A funeral establishment shall be a place at a
24 specific street address or location consisting of at least
25 1,250 contiguous interior square feet and must maintain or
26 make arrangements for either suitable capacity for the
27 refrigeration and storage of dead human bodies handled and
28 stored by the establishment and or a preparation room equipped
29 with necessary ventilation and drainage and containing
30 necessary instruments for embalming dead human bodies or must
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1 make arrangements for a preparation room as established by
2 board rule.
3 Section 22. Subsections (6), (13), (14), and (15) of
4 section 470.025, Florida Statutes, are amended, and subsection
5 (16) is added to that section, to read:
6 470.025 Cinerator facility; licensure.--
7 (6) No more than one dead human body may be placed in
8 a retort at one time, unless written permission has been
9 received from a legally authorized person for each body. The
10 operator of a cinerator facility shall be entitled to rely on
11 the permission of a legally authorized person to cremate more
12 than one human body.
13 (13) A cinerator facility shall not place human
14 remains or body parts in a retort or cremation chamber unless
15 the human remains are in an alternative container, cremation
16 container, or casket. Human remains may be transported in a
17 cremation container or stored if they are completely covered,
18 and at all times treated with dignity and respect. Cremation
19 may include the processing and pulverization of bone
20 fragments. Cremated remains may be placed in a temporary
21 container following cremation. None of the provisions
22 contained in this subsection require the purchase of a casket
23 for cremation. This subsection applies to at-need contracts
24 and preneed contracts entered into pursuant to chapter 497
25 after June 1, 1996.
26 (14) Each cinerator facility shall ensure that all
27 alternative containers, cremation containers, or caskets used
28 for cremation contain no amount of chlorinated plastics not
29 authorized by the Department of Environmental Protection, that
30 they also are composed of readily combustible materials
31 suitable for cremation, able to be closed to provide a
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1 complete covering for the human remains, resistant to leakage
2 or spillage, rigid enough for handling with ease, and able to
3 provide for the health, safety, and personal integrity of the
4 public and crematory personnel.
5 (15) The board shall adopt, by rule, criteria for
6 acceptable cremation and alternative containers.
7 (16) The operator of a cinerator facility shall
8 establish written procedures for the removal of remains and
9 bone fragments, to the extent possible, resulting from the
10 cremation of a human body and the postcremation processing,
11 shipping, packing, or identifying of those remains. If an
12 operator follows these procedures, the operator is not liable
13 for the unintentional or incidental commingling of human
14 remains and bone fragments resulting from more than one
15 cremation cycle or from postcremation processing, shipping,
16 packing, or identifying of those remains. A copy of the
17 procedures shall be available, upon request, to the department
18 and legally authorized persons.
19 Section 23. Section 470.0255, Florida Statutes, is
20 amended to read:
21 470.0255 Cremation; procedure required.--
22 (1) At the time of the arrangement for a cremation
23 performed by any person licensed pursuant to this chapter, the
24 person contracting for cremation services shall be required to
25 designate his or her intentions with respect to the
26 disposition of the cremated remains of the deceased in a
27 signed declaration of intent which shall be provided by and
28 retained by the funeral or direct disposal establishment. A
29 cremation may not be performed until a legally authorized
30 person gives written authorization for such cremation. The
31 cremation must be performed within 48 hours after a specified
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1 time which has been agreed to in writing by the person
2 authorizing the cremation.
3 (2) With respect to any person who intends to provide
4 for the cremation of the deceased, if, after a period of 120
5 days from the time of cremation the cremated remains have not
6 been claimed, the funeral or direct disposal establishment may
7 dispose of the cremated remains. Such disposal shall include
8 scattering them at sea or placing them in a licensed cemetery
9 scatter garden or pond or in a church columbarium or otherwise
10 disposing of the remains as provided by rule of the department
11 or board.
12 (3) Pursuant to the request of a legally authorized
13 person and incidental to final disposition, cremation may be
14 performed on parts of human remains. This subsection does not
15 authorize the cremation of body parts as defined in s.
16 470.002.
17 Section 24. Section 470.028, Florida Statutes, is
18 amended to read:
19 470.028 Preneed sales; registration of agents; control
20 and supervision of agents.--
21 (1) All sales of preneed funeral service contracts or
22 direct disposition contracts shall be made pursuant to chapter
23 497.
24 (2) No person may act as an agent for a funeral
25 establishment or direct disposal establishment with respect to
26 the sale of preneed contracts unless such person is registered
27 pursuant to chapter 497.
28 (3) Each licensee or registrant shall be subject to
29 discipline if his or her agent violates any provision of this
30 chapter applicable to such licensee or registrant as
31 established by board rule.
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1 (4)(a) The funeral director in charge of a funeral
2 establishment shall be responsible for the control and
3 activities of the establishment's preneed agents.
4 (b) The direct disposer in charge or a funeral
5 director acting as a direct disposer in charge of a direct
6 disposal establishment shall be responsible for the control
7 and activities of the establishment's preneed agents.
8 Section 25. Subsection (1) of section 470.029, Florida
9 Statutes, is amended to read:
10 470.029 Reports of cases embalmed and bodies
11 handled.--
12 (1) Each funeral establishment, direct disposal
13 establishment, cinerator facility, and centralized embalming
14 facility shall report on a form prescribed and furnished by
15 the department the name of the deceased and such other
16 information as may be required with respect to each dead human
17 body embalmed or otherwise handled by the establishment or
18 facility. Such forms shall be signed by the embalmer who
19 performs the embalming, if the body is embalmed, and the
20 funeral director in charge of the establishment or facility or
21 by the direct disposer who disposes of the body. The board
22 shall prescribe by rule the procedures in submitting such
23 documentation. Reports required by this subsection shall be
24 filed by the 20th 10th day of each month for final
25 dispositions handled the preceding month.
26 Section 26. Section 470.031, Florida Statutes, is
27 amended to read:
28 470.031 Prohibitions; penalties.--
29 (1) No person may:
30
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1 (a) Practice funeral directing, embalming, or direct
2 disposition unless the person holds an active license or
3 registration under this chapter.
4 (b) Use the name or title "funeral director,"
5 "embalmer," or "direct disposer" when the person has not been
6 licensed or registered pursuant to this chapter.
7 (c) Represent as his or her own the license or
8 registration of another.
9 (d) Give false or forged evidence to the board, a
10 member thereof, or the department for the purpose of obtaining
11 a license or registration.
12 (e) Use or attempt to use a license or registration
13 which has been suspended or revoked.
14 (f) Knowingly employ unlicensed persons in the
15 practice of funeral directing, embalming, or direct disposing.
16 (g) Knowingly conceal information relative to
17 violations of this chapter.
18 (h) Operate an unlicensed cinerator facility.
19 (i) Except as provided for in chapter 497, guarantee
20 the price of goods and services at a future date.
21 (2) Any person who violates the provisions of this
22 section commits a misdemeanor of the second degree, punishable
23 as provided in s. 775.082 or s. 775.083.
24 Section 27. Section 470.0355, Florida Statutes, is
25 amended to read:
26 470.0355 Identification of human remains.--
27 (1) PRIOR TO FINAL DISPOSITION.--
28 (a)(1) The licensee or registrant in charge of the
29 final disposition of dead human remains shall, prior to final
30 disposition of such dead human remains, affix on the ankle or
31 wrist of the deceased, and or in the casket or alternative
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1 container or cremation container, proper identification of the
2 dead human remains. The identification or tag shall be encased
3 in or consist of durable and long-lasting material containing
4 the name, date of birth, and date of death, and social
5 security number of the deceased, if available. If the dead
6 human remains are cremated, proper identification shall be
7 placed in the container or urn containing the remains.
8 (b)(2) Any licensee or registrant responsible for
9 removal of dead human remains to any establishment, facility,
10 or location shall ensure that the remains are identified by a
11 tag or other means of identification that is affixed to the
12 ankle or wrist of the deceased at the time the remains are
13 removed from the place of death or other location.
14 (c)(3) Any licensee or registrant may rely on the
15 representation of a legally authorized person to establish the
16 identity of dead human remains.
17 (2) IN UNLICENSED CEMETERIES.--Effective October 1,
18 2004, the identification of human remains interred in an
19 unlicensed cemetery shall be the responsibility of the
20 licensed funeral establishment in charge of the funeral
21 arrangements for the deceased person. The licensed funeral
22 establishment in charge of the funeral arrangements for the
23 interment in an unlicensed cemetery of human remains shall
24 place on the outer burial container, cremation internment
25 container, or other container or on the inside of a crypt or
26 niche a tag or permanent identifying mark containing the name
27 of the decedent and the date of death, if available. The
28 materials and locations of the tag or mark shall be more
29 specifically described by rule of the board.
30
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1 (3) IN LICENSED CEMETERIES.--Effective October 1,
2 2004, human remains at licensed cemeteries shall be identified
3 as follows:
4 (a) Each licensed cemetery shall place on the outer
5 burial container, cremation interment container, or other
6 container or on the inside of a crypt or niche a tag or
7 permanent identifying marker containing the name of the
8 decedent and the date of death, if available. The materials
9 and the location of the tag or marker shall be more
10 specifically described by rule of the board.
11 (b) Each licensed cemetery may rely entirely on the
12 identity stated on the burial transit permit or on the
13 identification supplied by a person licensed under this
14 chapter to establish the identity of the dead human remains
15 delivered by such person for burial and shall not be liable
16 for any differences between the identity shown on the burial
17 transit permit or identification and the actual identity of
18 the dead human remains delivered by such person and buried in
19 the cemetery.
20 (4) DIRECT DISPOSAL ESTABLISHMENTS.--Direct disposal
21 establishments shall establish a system of identification of
22 human remains received which shall be designed to track the
23 identity of the remains from the time of receipt until
24 delivery of the remains to the authorized persons. This is in
25 addition to the requirements for identification of human
26 remains set forth in subsection (1). A copy of the
27 identification procedures shall be available, upon request, to
28 the department and legally authorized persons.
29 Section 28. For the purpose of incorporating the
30 amendment to section 470.031, Florida Statutes, in a reference
31
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1 thereto, paragraph (a) of subsection (1) of section 470.036,
2 Florida Statutes, is reenacted to read:
3 470.036 Disciplinary proceedings.--
4 (1) The following acts constitute grounds for which
5 the disciplinary actions in subsection (2) may be taken:
6 (a) Violation of any provision of s. 455.227(1) or s.
7 470.031.
8 Section 29. Section 497.005, Florida Statutes, is
9 amended to read:
10 497.005 Definitions.--As used in this chapter:
11 (1) "At-need solicitation" means any uninvited contact
12 by a licensee or her or his agent for the purpose of the sale
13 of burial services or merchandise to the family or next of kin
14 of a person after her or his death has occurred.
15 (2) "Bank of belowground crypts" means any
16 construction unit of belowground crypts which is acceptable to
17 the department and which a cemetery uses to initiate its
18 belowground crypt program or to add to existing belowground
19 crypt structures.
20 (3) "Belowground crypts" consist of interment space in
21 preplaced chambers, either side by side or multiple depth,
22 covered by earth and sod and known also as "lawn crypts,"
23 "westminsters," or "turf-top crypts."
24 (4) "Board" means the Board of Funeral and Cemetery
25 Services.
26 (5) "Burial merchandise," "funeral merchandise," or
27 "merchandise" means any personal property offered or sold by
28 any person for use in connection with the final disposition,
29 memorialization, interment, entombment, or inurnment of human
30 remains.
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1 (6) "Burial right" means the right to use a grave
2 space, mausoleum, columbarium, ossuary, or scattering garden
3 for the interment, entombment, inurnment, or other disposition
4 of human remains.
5 (7) "Burial service," "funeral service," or "service"
6 means any service offered or provided by any person in
7 connection with the final disposition, memorialization,
8 interment, entombment, or inurnment of human remains.
9 (8) "Care and maintenance" means the perpetual process
10 of keeping a cemetery and its lots, graves, grounds,
11 landscaping, roads, paths, parking lots, fences, mausoleums,
12 columbaria, vaults, crypts, utilities, and other improvements,
13 structures, and embellishments in a well-cared-for and
14 dignified condition, so that the cemetery does not become a
15 nuisance or place of reproach and desolation in the community.
16 As specified in the rules of the board, "care and maintenance"
17 may include, but is not limited to, any or all of the
18 following activities: mowing the grass at reasonable
19 intervals; raking and cleaning the grave spaces and adjacent
20 areas; pruning of shrubs and trees; suppression of weeds and
21 exotic flora; and maintenance, upkeep, and repair of drains,
22 water lines, roads, buildings, and other improvements. "Care
23 and maintenance" may include, but is not limited to,
24 reasonable overhead expenses necessary for such purposes,
25 including maintenance of machinery, tools, and equipment used
26 for such purposes. "Care and maintenance" may also include
27 repair or restoration of improvements necessary or desirable
28 as a result of wear, deterioration, accident, damage, or
29 destruction. "Care and maintenance" does not include expenses
30 for the construction and development of new grave spaces or
31 interment structures to be sold to the public.
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1 (9) "Casket" means a rigid container which is designed
2 for the encasement of human remains, and which is usually
3 constructed of wood or metal, ornamented, and lined with
4 fabric, and which may or may not be combustible.
5 (10) "Cemetery" means a place dedicated to and used or
6 intended to be used for the permanent interment of human
7 remains. A cemetery may contain land or earth interment;
8 mausoleum, vault, or crypt interment; a columbarium, ossuary,
9 scattering garden, or other structure or place used or
10 intended to be used for the interment or disposition of
11 cremated human remains; or any combination of one or more of
12 such structures or places.
13 (11) "Cemetery company" means any legal entity that
14 owns or controls cemetery lands or property.
15 (12) "Certificateholder" or "licensee" means the
16 person or entity that is authorized under this chapter to sell
17 preneed funeral or burial services, preneed funeral or burial
18 merchandise, or burial rights. Each term shall include the
19 other, as applicable, as the context requires. For the
20 purposes of chapter 120, all certificateholders, licensees,
21 and registrants shall be considered licensees.
22 (13) "Columbarium" means a structure or building which
23 is substantially exposed above the ground and which is
24 intended to be used for the inurnment of cremated human
25 remains.
26 (14) "Common business enterprise" means a group of two
27 or more business entities that share common ownership in
28 excess of 50 percent.
29 (15) "Cremation" includes any mechanical or thermal
30 process whereby a dead human body is reduced to ashes.
31 Cremation also includes any other mechanical or thermal
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1 process whereby human remains are pulverized, burned,
2 recremated, or otherwise further reduced in size or quantity.
3 (16) "Department" means the Department of Financial
4 Services.
5 (17) "Direct disposer" means any person who is
6 registered in this state to practice direct disposition
7 pursuant to the provisions of chapter 470.
8 (18) "Final disposition" means the final disposal of a
9 dead human body whether by interment, entombment, burial at
10 sea, cremation, or any other means and includes, but is not
11 limited to, any other disposition of remains for which a
12 segregated charge is imposed.
13 (19) "Funeral director" means any person licensed in
14 this state to practice funeral directing pursuant to the
15 provisions of chapter 470.
16 (20) "Grave space" means a space of ground in a
17 cemetery intended to be used for the interment in the ground
18 of human remains.
19 (21) "Human remains" means the bodies of deceased
20 persons and includes bodies in any stage of decomposition and
21 cremated remains.
22 (22) "Mausoleum" means a structure or building which
23 is substantially exposed above the ground and which is
24 intended to be used for the entombment of human remains.
25 (23) "Mausoleum section" means any construction unit
26 of a mausoleum which is acceptable to the department and which
27 a cemetery uses to initiate its mausoleum program or to add to
28 its existing mausoleum structures.
29 (24) "Monument" means any product used for identifying
30 a grave site and cemetery memorials of all types, including
31 monuments, markers, and vases.
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1 (25) "Monument establishment" means a facility that
2 operates independently of a cemetery or funeral establishment
3 and that offers to sell monuments or monument services to the
4 public for placement in a cemetery.
5 (26) "Net assets" means the amount by which the total
6 assets of a certificateholder, excluding goodwill, franchises,
7 customer lists, patents, trademarks, and receivables from or
8 advances to officers, directors, employees, salespersons, and
9 affiliated companies, exceed total liabilities of the
10 certificateholder. For purposes of this definition, the term
11 "total liabilities" does not include the capital stock,
12 paid-in capital, or retained earnings of the
13 certificateholder.
14 (27) "Net worth" means total assets minus total
15 liabilities pursuant to generally accepted accounting
16 principles.
17 (28) "Niche" means a compartment or cubicle for the
18 memorialization or permanent placement of an urn containing
19 cremated remains.
20 (29)(28) "Ossuary" means a receptacle used for the
21 communal placement of cremated human remains without benefit
22 of an urn or any other container in which remains will be
23 commingled with other cremated human remains and are
24 nonrecoverable. It may or may not include memorialization.
25 (30)(29) "Outer burial container" means an enclosure
26 into which a casket is placed and includes, but is not limited
27 to, vaults made of concrete, steel, fiberglass, or copper;
28 sectional concrete enclosures; crypts; and wooden enclosures.
29 (31)(30) "Preneed contract" means any arrangement or
30 method, of which the provider of funeral merchandise or
31
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1 services has actual knowledge, whereby any person agrees to
2 furnish funeral merchandise or service in the future.
3 (32)(31) "Religious institution" means an organization
4 formed primarily for religious purposes which has qualified
5 for exemption from federal income tax as an exempt
6 organization under the provisions of s. 501(c)(3) of the
7 Internal Revenue Code of 1986, as amended.
8 (33)(32) "Scattering garden" means a location set
9 aside, within a cemetery, which is used for the spreading or
10 broadcasting of cremated remains that have been removed from
11 their container and can be mixed with or placed on top of the
12 soil or ground cover or buried in an underground receptacle on
13 a commingled basis and that are nonrecoverable. It may or may
14 not include memorialization.
15 (34)(33) "Servicing agent" means any person acting as
16 an independent contractor whose fiduciary responsibility is to
17 assist both the trustee and certificateholder hereunder in
18 administrating their responsibilities pursuant to this
19 chapter.
20 (35)(34) "Solicitation" means any communication that
21 which directly or implicitly requests an immediate oral
22 response from the recipient.
23 (36)(35) "Statutory accounting" means generally
24 accepted accounting principles, except as modified by this
25 chapter.
26 (37) "Urn" means a receptacle designed to permanently
27 encase cremated remains.
28 Section 30. Subsection (3) of section 497.305, Florida
29 Statutes, is amended to read:
30 497.305 Cemetery companies; authorized functions.--
31
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1 (3) A cemetery company may adopt bylaws establishing
2 minimum standards for burial merchandise or the installation
3 thereof. Such bylaws shall include minimum standards for
4 access to install burial merchandise. A cemetery company must
5 comply with its adopted bylaws.
6 Section 31. Section 497.306, Florida Statutes, is
7 created to read:
8 497.306 Standards for grave spaces.--
9 (1) A standard adult grave space shall measure at
10 least 42 inches in width and 96 inches in length, except for
11 preinstalled vaults in designated areas. For interments,
12 except cremated remains, the covering soil shall measure no
13 less than 12 inches from the top of the outer burial
14 container, unless such level of soil is not physically
15 possible. In any interment, the family or next of kin may
16 waive the 12-inch coverage minimum.
17 (2)(a) Effective October 1, 2004, and prior to the
18 sale of grave spaces in any undeveloped areas of a licensed
19 cemetery, the cemetery company shall prepare a map documenting
20 the establishment of recoverable internal survey reference
21 markers installed by the cemetery company no more than 100
22 feet apart in the areas planned for development. The internal
23 reference markers shall be established with reference to
24 survey markers that are no more than 200 feet apart which have
25 been set by a surveyor and mapper licensed under chapter 472
26 and documented in a certified land survey. Both the map and
27 the certified land survey shall be maintained by the cemetery
28 company and shall be made available upon request to the
29 department or members of the public.
30 (b) The map of the area proposed to be developed shall
31 show:
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1 1. The number of grave spaces available for sale.
2 2. The location of each grave space.
3 3. The number designation assigned to each grave
4 space.
5 4. The dimensions of a standard adult grave space.
6 (3) Adult grave spaces established prior to October 1,
7 2004, are not required to meet the standards established under
8 this section for the dimensions or separation of grave spaces.
9 Section 32. Section 497.307, Florida Statutes, is
10 created to read:
11 497.307 Identification of human remains in licensed
12 cemeteries.--On and after October 1, 2004, human remains
13 interred, entombed, scattered, or otherwise placed for final
14 rest at licensed cemeteries shall be identified as follows:
15 (1) Each licensed cemetery shall place on the outer
16 burial container, cremation interment container, or other
17 container, or on the inside of a crypt or niche, a tag or a
18 permanent identifying marker containing the name of the
19 decedent and the date of death, if available. The materials
20 and location of the tag or marker shall be more specifically
21 described by rule of the board.
22 (2) Each licensed cemetery may rely entirely on the
23 identity stated on the burial transit permit or on the
24 identification supplied by a person licensed under chapter 470
25 to establish the identity of the dead human remains delivered
26 by such person for burial and shall not be liable for any
27 differences between the identity shown on the burial transit
28 permit or other identification and the actual identity of the
29 dead human remains delivered by such person and buried in the
30 cemetery.
31
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1 Section 33. Subsection (2) of section 497.325, Florida
2 Statutes, is amended to read:
3 497.325 Illegal tying arrangements.--
4 (2)(a) Noncemetery licensed persons and firms shall
5 have the right to sell monuments and to perform or provide on
6 cemetery property foundation, preparation, and installation
7 services for monuments. However, a cemetery company or any
8 other entity owning and operating a cemetery may establish
9 reasonable rules regarding the style and size of a monument or
10 its foundation, provided such rules are applicable to all
11 monuments from whatever source obtained and are enforced
12 uniformly as to all monuments. Such rules shall be
13 conspicuously posted and readily accessible to inspection and
14 copy by interested persons.
15 (b) No person who is authorized to sell grave space
16 and no cemetery company or other entity owning and operating a
17 cemetery may:
18 1. Require the payment of a setting or service charge,
19 by whatever name known, from third party installers for the
20 placement of a monument;
21 2. Refuse to provide care or maintenance for any
22 portion of a gravesite on which a monument has been placed; or
23 3. Waive liability with respect to damage caused by
24 cemetery employees or agents to a monument after installation,
25 where the monument or installation service is not purchased
26 from the person authorized to sell grave space or the cemetery
27 company or other legal entity providing grave space or from or
28 through any other person or corporation designated by the
29 person authorized to sell grave space or the cemetery company
30 or other legal entity providing grave space. A No cemetery
31 company or other entity owning and operating a cemetery may
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1 not be held liable for the improper installation of a monument
2 where the monument is not installed by the cemetery company or
3 its agents or by such other entity or its agents.
4 Section 34. Subsection (9) is added to section
5 497.333, Florida Statutes, to read:
6 497.333 Disclosure of information to public.--A
7 licensee offering to provide burial rights, merchandise, or
8 services to the public shall:
9 (9) Provide to each customer a complete description of
10 any monument, marker, or memorialization to be placed at the
11 gravesite.
12 Section 35. Subsection (5) of section 497.361, Florida
13 Statutes, is amended and subsections (6) and (7) are added to
14 said section to read:
15 497.361 Registration of monument establishments.--
16 (5) Monuments not shall be delivered within a
17 specified timeframe shall be considered a breach of contract
18 unless the monument establishment has a written agreement to
19 extend the delivery date. The purchaser shall be entitled to
20 a refund of all money paid for the merchandise. Such refund
21 shall be made within 30 days after receipt by the monument
22 establishment of the purchaser's written request for a
23 refund. This subsection does not preclude the purchase and
24 installation of a new monument from any other registered
25 monument establishment or certificateholder as established by
26 this chapter and installed no later than 120 days after the
27 date of sale. The establishment may request two 30-day
28 extensions. Extensions may be granted by the executive
29 director.
30 (6) All contracts with the public must be approved by
31 the Department of Financial Services and must provide a
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1 complete description of any monument, marker, or related
2 product to be delivered.
3 (7) A certificate of authority may not be transferred
4 or assigned.
5 Section 36. Section 497.365, Florida Statutes, is
6 created to read:
7 497.365 Regulation of monument establishments.--
8 (1) The Department of Financial Services shall
9 establish an inspection program for all monument
10 establishments in accordance with the requirements of this
11 act.
12 (2) The Department of Financial Services shall adopt
13 rules that shall include requirements for the approval of
14 contracts for memorials and related products, written
15 complaint procedures and mandatory response to consumer
16 complaints, disclosure to the public as to the form of
17 ownership, the fingerprinting of owners, and appropriate
18 recordkeeping.
19 (3) Nothing in the department's authority or any other
20 provisions of this act shall unreasonably restrict competition
21 or permit the restraint of trade and commerce.
22 Section 37. Section 497.371, Florida Statutes, is
23 created to read:
24 497.371 Monument establishment business location.--
25 (1) A monument establishment shall be a place at a
26 specific street address or location consisting of an office
27 and display area for monuments, markers, and related products.
28 The place where the establishment is located must comply with
29 the local government zoning regulations and may not be located
30 on tax-exempt property.
31
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1 (2) The monument establishment must be a full-service
2 monument location open to the public during normal business
3 hours, with facilities to design, inscribe, and install
4 monuments and related products.
5 (3) A person may not operate a monument company or
6 install monuments, markers, and related products in this state
7 unless he or she is licensed by the Department of Financial
8 Services.
9 Section 38. Section 497.379, Florida Statutes, is
10 created to read:
11 497.379 Licensure of monument establishments to sell
12 preneed contracts.--A monument establishment, including an
13 existing registered or unregistered monument establishment,
14 may not sell a preneed contract without first having obtained
15 a valid certificate of authority from the Department of
16 Financial Services. A person may not be issued a certificate
17 of authority as a monument establishment to sell preneed
18 contracts unless such person has at least 3 years' experience
19 in the operation and management of an establishment selling
20 monuments, markers, and related products.
21 Section 39. Section 497.385, Florida Statutes, is
22 created to read:
23 497.385 Monument establishment; sales
24 representative.--Each person selling monuments, markers, and
25 related products for a monument establishment must register
26 with the board, including any person registered or licensed
27 pursuant to chapter 470 or this chapter. A person selling
28 monuments, markers, and related products for a monument
29 establishment that has been issued a certificate of authority
30 must register as a preneed agent pursuant to the requirements
31 of this chapter.
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1 Section 40. Section 497.391, Florida Statutes, is
2 created to read:
3 497.391 Monument establishment; preneed
4 contracts.--Effective October 1, 2005, a monument dealer or
5 establishment may not write a preneed contract unless that
6 contract has been approved by the board. Any monument dealer
7 or establishment that is paid, collects, or receives funds
8 under a preneed contract for services or merchandise shall
9 comply with the provisions of ss. 497.417 and 497.413.
10 Section 41. Section 497.395, Florida Statutes, is
11 created to read:
12 497.395 Licensed monument establishment; financial
13 requirements.--
14 (1) For the purposes of qualifying for a certificate
15 of authority as a licensed monument establishment, the
16 establishment must have a minimum net worth of $10,000. A
17 licensed monument establishment holding a certificate of
18 authority or a monument establishment applicant must meet and
19 maintain the requirements of this section on an annual basis
20 in order to perform its obligation for all existing preneed
21 contracts.
22 (2) All licensed monument establishments holding a
23 certificate of authority or an applicant must submit its most
24 recent year-end financial statements, including a balance
25 sheet and income statement, with the certificate of authority
26 application and annually thereafter as provided in s.
27 497.407(1). The financial statement must be prepared in
28 accordance with generally accepted accounting principles, as
29 those principles have been defined by the Florida Board of
30 Accountancy in the Florida Administrative Code. If the
31 applicant does not have the minimum net worth as set forth in
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1 subsection (3), lacks sufficient liquid assets to satisfy
2 current liabilities, or does not appear to have any
3 substantial long-term assets, the department shall request
4 additional financial information concerning financial
5 statements and the statement of cash flow.
6 (3) For the purposes of this section, the term "total
7 preneed contracts" means the total retail value of all
8 outstanding preneed contracts. There shall be an annual fee
9 for the renewal of the monument establishment certificate of
10 authority based on the following sales volume for total
11 preneed contracts:
12 (a) Five hundred dollars for a certificateholder that
13 has total sales of $1 to $50,000.
14 (b) Seven hundred and fifty dollars for a
15 certificateholder that has total sales of $50,001 to $250,000.
16 (c) One thousand dollars for a certificateholder that
17 has total sales of $250,001 to $500,000.
18 (d) Twelve hundred fifty dollars for a
19 certificateholder that has total sales in excess of $500,001.
20 (4) In the case of a monument establishment holding a
21 certificate of authority or a licensed dealer applicant
22 offering preneed sales through a subsidiary agent as provided
23 in Rule 3F-5.0015, Florida Administrative Code, the
24 certificateholder or applicant must execute a guarantee
25 agreement with respect to any contract obligations resulting
26 from preneed sales of such a selling agent.
27 (5) If the certificateholder or applicant does not
28 meet the financial requirements in subsection (3), the entity
29 may voluntarily submit to the board additional evidence or
30 agree to additional oversight as to meeting the requirements
31 of subsection (1) as a condition of receiving or retaining a
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1 certificate of authority. Such additional evidence or
2 oversight shall include, as appropriate:
3 (a) An agreement to submit monthly financial
4 statements of the entity;
5 (b) An agreement to submit quarterly financial
6 statements of the entity;
7 (c) An appraisal of the entity's property or broker's
8 opinion of the entity's assets;
9 (d) A credit report of the entity or its principal
10 owners;
11 (e) Subordination-of-debt agreement from the entity's
12 principal owners;
13 (f) An indemnification or subrogation agreement
14 binding the entity and principal owners;
15 (g) A guarantee agreement for the entity from its
16 principal owners;
17 (h) Written explanation of past financial activity;
18 (i) Submission of the 12-month projected business plan
19 that includes:
20 1. A statement of cash flows;
21 2. Pro forma income statements, with sources of
22 revenues identified; and
23 3. Marketing initiatives;
24 (j) Submission of previous department examination
25 reports; or
26 (k) An agreement of 100 percent voluntary trust by the
27 entity.
28 Section 42. Subsections (1), (3), and (4) of section
29 497.405, Florida Statutes, are amended to read:
30 497.405 Certificate of authority required.--
31
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1 (1)(a) No person, including any cemetery exempt under
2 s. 497.003, may sell, advertise to sell, or make an
3 arrangement for a preneed contract without first having a
4 valid certificate of authority.
5 (b) No person, including any cemetery exempt under s.
6 497.003, may sell, advertise to sell, or make an arrangement
7 for services, merchandise, or burial rights on a preneed basis
8 unless such person is authorized pursuant to this chapter to
9 provide such services, merchandise, or burial rights on an
10 at-need basis.
11 (3) No person may obtain a certificate of authority
12 under this chapter for the preneed sale of services unless
13 such person or its agent, in the case of a corporate entity,
14 holds a license as a funeral establishment or cemetery
15 company, or registration as a direct disposal establishment
16 under chapter 470, or certification as a monument
17 establishment under this chapter.
18 (4) The provisions of this section do not apply to
19 religious-institution-owned cemeteries exempt under s.
20 497.003(1)(d), in counties with a population of at least
21 960,000 persons on July 1, 1996, with respect to the sale to
22 the religious institution's members and their families of
23 interment rights, mausoleums, crypts, cremation niches and
24 cremation interment containers, vaults, liners, urns,
25 memorials, vases, foundations, memorial bases, floral
26 arrangements, monuments, markers, engraving, and the opening
27 and closing of interment rights, mausoleums, crypts, and
28 cremation niches and cremation interment containers, if such
29 cemeteries have engaged in the sale of preneed contracts prior
30 to October 1, 1993, and maintain a positive net worth at the
31 end of each fiscal year of the cemetery.
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1 Section 43. Subsection (4) of section 497.419, Florida
2 Statutes, is amended, and subsection (11) is added to that
3 section, to read:
4 497.419 Cancellation of, or default on, preneed
5 contracts.--
6 (4) Each certificateholder shall provide in
7 conspicuous type in its contract that the contract purchaser
8 may cancel the contract and receive a full refund within 30
9 days after of the date of execution of the contract, except
10 for those amounts allocable to any burial rights, merchandise,
11 or services that have been used by the purchaser. The failure
12 to make such provision shall not impair the contract
13 purchaser's right to cancellation and refund as provided in
14 this section.
15 (11) Failure to install a monument within 180 days
16 after interment shall be considered a breach of contract
17 unless the certificateholder has a written agreement to extend
18 the installation date. The purchaser shall be entitled to a
19 refund of all money paid for the merchandise. Such refund
20 shall be made within 30 days after receipt by the
21 certificateholder of the purchaser's written request for a
22 refund. This subsection does not preclude the purchase and
23 installation of a new monument from any other registered
24 monument establishment or certificateholder.
25 Section 44. Subsection (4) of section 497.436, Florida
26 Statutes, is amended to read:
27 497.436 Inactive and revoked certificateholders.--
28 (4) Upon receipt of the notice, in order to protect
29 the contract purchaser, the board may:
30 (a) shall Review the certificateholder's:
31 1.(a) Trust funds.
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1 2.(b) Trust agreements.
2 3.(c) Evidence of all outstanding preneed contracts.
3 (b) Perform other procedures the board deems
4 necessary.
5 Section 45. Section 406.50, Florida Statutes, is
6 amended to read:
7 406.50 Unclaimed dead bodies or human remains;
8 disposition, procedure.--All public officers, agents, or
9 employees of every county, city, village, town, or
10 municipality and every person in charge of any prison, morgue,
11 hospital, funeral parlor, or mortuary and all other persons
12 coming into possession, charge, or control of any dead human
13 body or remains which are unclaimed or which are required to
14 be buried or cremated at public expense are hereby required to
15 notify, immediately, the anatomical board, whenever any such
16 body, bodies, or remains come into its possession, charge, or
17 control. Notification of the anatomical board is not required
18 if the death was caused by crushing injury, the deceased had a
19 contagious disease, an autopsy was required to determine cause
20 of death, the body was in a state of severe decomposition, or
21 a family member objects to use of the body for medical
22 education and research.
23 (1) The person or entity in charge or control of the
24 dead body or human remains shall make a reasonable effort to
25 determine:
26 (a) The identity of the deceased person and shall
27 further make a reasonable effort to contact any relatives of
28 such deceased person.
29 (b) Whether or not the deceased person is entitled to
30 burial in a national cemetery as a veteran of the armed forces
31 and, if so, shall make arrangements for such burial services
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1 in accordance with the provisions of 38 C.F.R. For purposes of
2 this subsection, "a reasonable effort" includes contacting the
3 county veterans service office or regional office of the
4 United States Department of Veterans Affairs.
5 (2) Such dead human bodies as described in this
6 chapter shall be delivered to the anatomical board as soon as
7 possible after death.
8 (3) Nothing herein shall affect the right of a medical
9 examiner to hold such dead body or remains for the purpose of
10 investigating the cause of death, nor shall this chapter
11 affect the right of any court of competent jurisdiction to
12 enter an order affecting the disposition of such body or
13 remains.
14 (4) In the event more than one legally authorized
15 person claims a body for interment, the requests shall be
16 prioritized in accordance with s. 732.103.
17
18 For purposes of this chapter, the term "anatomical board"
19 means the anatomical board of this state located at the
20 University of Florida Health Science Center and the term
21 "unclaimed" means a dead body or human remains not claimed by
22 a legally authorized person, as defined in s. 470.002, for
23 interment at that person's expense.
24 Section 46. Section 406.53, Florida Statutes, is
25 amended to read:
26 406.53 Death of indigents; notice; delivery to the
27 anatomical board when unclaimed; exceptions; assessment of
28 fees.--
29 (1) Notice of death to the anatomical board in cases
30 of indigent persons is not required if:
31 (a) Death was caused by crushing injury.
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1 (b) The deceased had a contagious disease.
2 (c) An autopsy was required to determine cause of
3 death.
4 (d) The body was in a state of severe decomposition.
5 (e) Any relative, by blood or marriage, claims the
6 body for burial at the expense of such relative, but the body
7 shall be surrendered to the claimant for interment or, if such
8 relative is indigent, in a manner consistent with the policy
9 of the agency in possession or control of the body.
10 (f) Any friend or any representative of a fraternal
11 society of which the deceased was a member, or a
12 representative of any charitable or religious organization, or
13 a governmental agency which was providing residential care to
14 the indigent person at the time of his or her death claims the
15 body for burial at his or her, its, or their expense.
16 (g) The deceased person was an honorably discharged
17 member of the Armed Forces of the United States or the state
18 who served during a period of wartime service as defined in s.
19 1.01(14); but such body shall be buried in accordance with the
20 provisions of the existing laws.
21 (2) When the Department of Health claims the body of a
22 client according to this section, the department shall assess
23 fees for burial pursuant to s. 402.33.
24
25 For purposes of this chapter, the term "indigent" means a
26 level of income at or below 100 percent of the federal poverty
27 level recognized by the federal poverty guidelines produced by
28 the United States Department of Health and Human Services.
29 Section 47. Except as otherwise expressly provided in
30 this act, this act shall take effect July 1, 2004.
31
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS for SB 528
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4 Changes the effective dates for the merger of the Board of
funeral Directors and Embalmers and the Board of Funeral and
5 Cemetery Services from January 1, 2005, to October 1, 2005.
6 Changes the effective dates for the abolishment of the current
two boards from December 31, 2004, to September 30, 2005.
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