Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. SB 854
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/11/2016           .                                

       The Committee on Banking and Insurance (Hukill) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete lines 112 - 861
    4  and insert:
    5         (67) “Purchaser” means a person who executes a preneed or
    6  an at-need contract with a licensee for merchandise or services.
    7         (77) “Total return withdrawal percentage” means a
    8  percentage, not to exceed 5 percent, of the fair market value of
    9  a trust.
   10         Section 2. Subsections (2) and (11) of section 497.141,
   11  Florida Statutes, are amended to read:
   12         497.141 Licensing; general application procedures.—
   13         (2) Any person desiring to be licensed shall apply to the
   14  licensing authority in writing using such forms and procedures
   15  as may be prescribed by rule. The application for licensure
   16  shall include the applicant’s social security number if the
   17  applicant is a natural person; otherwise, the applicant’s
   18  federal tax identification number shall be included.
   19  Notwithstanding any other provision of law, the department is
   20  the sole authority for determining the forms and form contents
   21  to be submitted for initial licensure and licensure renewal
   22  application. Such forms and the information and materials
   23  required by such forms may include, as appropriate,
   24  demographics, education, work history, personal background,
   25  criminal history, finances, business information, signature
   26  notarization, performance periods, reciprocity, local government
   27  approvals, supporting documentation, periodic reporting
   28  requirements, fingerprint requirements, continuing education
   29  requirements, business plans, character references, e-mail
   30  addresses, and ongoing education monitoring. Such forms and the
   31  information and materials required by such forms may also
   32  include, to the extent such information or materials are not
   33  already in the possession of the department or the board,
   34  records or information as to complaints, inspections,
   35  investigations, discipline, and bonding. The application shall
   36  be supplemented as needed to reflect any material change in any
   37  circumstance or condition stated in the application that takes
   38  place between the initial filing of the application and the
   39  final grant or denial of the license and that might affect the
   40  decision of the department or the board. After an application by
   41  a natural person for licensure under this chapter is approved,
   42  the licensing authority may require the successful applicant to
   43  provide a photograph of himself or herself for permanent
   44  lamination onto the license card to be issued to the applicant,
   45  pursuant to rules and fees adopted by the licensing authority.
   46         (11) The department shall implement a system for
   47  administration of the overall licensing process, including e
   48  mail notification for the processing and tracking of
   49  applications for licensure, the issuance of licenses approved by
   50  the board, the tracking of licenses issued, the administration
   51  of the license renewal process, and the collection and
   52  processing of fees related to those activities. The system may
   53  use staff and facilities of the department or the department may
   54  enter into a contract for all or any part of such system, upon
   55  such terms and conditions as the department deems advisable, and
   56  such contract may be with another government agency or a private
   57  business.
   58         Section 3. Section 497.146, Florida Statutes, is amended to
   59  read:
   60         497.146 Licensing; address of record; changes; licensee
   61  responsibility.—Each licensee under this chapter is responsible
   62  for notifying the department in writing of the licensee’s
   63  current e-mail address, business and residence mailing address,
   64  and the street address of the licensee’s primary place of
   65  practice and shall notify the department in writing within 30
   66  days after any change in such information, in accordance with
   67  procedures and forms prescribed by rule. Notwithstanding any
   68  other provision of law, electronic notification service by
   69  regular mail to a licensee’s last known e-mail address of record
   70  or preferred street address of record with the department
   71  constitutes adequate and sufficient notice to the licensee for
   72  any official communication to the licensee by the board or the
   73  department, except when other service is expressly required by
   74  this chapter. The department may adopt rules, forms, and
   75  procedures, including a procedure for electronic reporting of
   76  the data provided pursuant to this section. Rules may be adopted
   77  establishing forms and procedures for licensees to provide the
   78  notice required by this section.
   79         Section 4. Paragraphs (b) and (e) of subsection (8),
   80  paragraph (d) of subsection (12), paragraphs (b) and (c) of
   81  subsection (14), and paragraph (b) of subsection (15) of section
   82  497.152, Florida Statutes, are amended to read:
   83         497.152 Disciplinary grounds.—This section sets forth
   84  conduct that is prohibited and that shall constitute grounds for
   85  denial of any application, imposition of discipline, or other
   86  enforcement action against the licensee or other person
   87  committing such conduct. For purposes of this section, the
   88  requirements of this chapter include the requirements of rules
   89  adopted under authority of this chapter. No subsection heading
   90  in this section shall be interpreted as limiting the
   91  applicability of any paragraph within the subsection.
   93  REMAINS.—
   94         (b) Refusing to surrender promptly the custody of a dead
   95  human body upon the express order of the person legally
   96  authorized person to such person’s its custody; however, this
   97  provision shall be subject to any state or local laws or rules
   98  governing custody or transportation of dead human bodies.
   99         (e) Failing to obtain written authorization from a legally
  100  authorized person before the family or next of kin of the
  101  deceased prior to entombment, interment, disinterment,
  102  disentombment, or disinurnment of the remains of any human
  103  being.
  104         (12) DISCLOSURE REQUIREMENTS.—
  105         (d) Failure by a funeral director to make full disclosure
  106  in the case of a funeral or direct disposition with regard to
  107  the use of funeral merchandise that is not to be disposed of
  108  with the body or failure to obtain written permission from a
  109  legally authorized person the purchaser regarding disposition of
  110  such merchandise.
  112  CUSTOMERS.—
  113         (b) Committing or performing with such frequency as to
  114  indicate a general business practice any of the following:
  115         1. Failing to acknowledge and act promptly upon
  116  communications from a licensee’s customers and their
  117  representatives with respect to claims or complaints relating to
  118  the licensee’s activities regulated by this chapter.
  119         2. Denying claims or rejecting complaints received by a
  120  licensee from a customer or customer’s representative, relating
  121  to the licensee’s activities regulated by this chapter, without
  122  first conducting reasonable investigation based upon available
  123  information.
  124         3. Attempting to settle a claim or complaint on the basis
  125  of a material document that was altered without notice to, or
  126  without the knowledge or consent of, the contract purchaser or a
  127  legally authorized person her or his representative or legal
  128  guardian.
  129         4. Failing within a reasonable time to affirm or deny
  130  coverage of specified services or merchandise under a contract
  131  entered into by a licensee upon written request of the contract
  132  purchaser or a legally authorized person her or his
  133  representative or legal guardian.
  134         5. Failing to promptly provide, in relation to a contract
  135  for funeral or burial merchandise or services entered into by
  136  the licensee or under the licensee’s license, a reasonable
  137  explanation to the contract purchaser or a legally authorized
  138  person her or his representative or legal guardian of the
  139  licensee’s basis for denying or rejecting all or any part of a
  140  claim or complaint submitted.
  141         (c) Making a material misrepresentation to a contract
  142  purchaser or a legally authorized person her or his
  143  representative or legal guardian for the purpose and with the
  144  intent of effecting settlement of a claim or complaint or loss
  145  under a prepaid contract on less favorable terms than those
  146  provided in, and contemplated by, the prepaid contract.
  148         For purposes of this subsection, the response of a customer
  149  recorded by the customer on a customer satisfaction
  150  questionnaire or survey form sent to the customer by the
  151  licensee, and returned by the customer to the licensee, shall
  152  not be deemed to be a complaint.
  154         (b) Failing to timely remit as required by this chapter the
  155  required amounts to any trust fund required by this chapter. The
  156  board shall may by rule provide criteria for identifying minor,
  157  nonwillful trust remittance deficiencies; and remittance
  158  deficiencies falling within such criteria, if fully corrected
  159  within 30 days after notice to the licensee by the department,
  160  do shall not constitute grounds for disciplinary action or a
  161  fine.
  162         Section 5. Paragraph (g) is added to subsection (1) of
  163  section 497.161, Florida Statutes, to read:
  164         497.161 Other rulemaking provisions.—
  165         (1) In addition to such other rules as are authorized or
  166  required under this chapter, the following additional rules, not
  167  inconsistent with this chapter, shall be authorized by the
  168  licensing authority.
  169         (g) Rules, not inconsistent with part IV of this chapter
  170  and the Florida Insurance Code, establishing conditions of use
  171  for insurance as a funding mechanism for preneed contracts.
  172         Section 6. Subsections (3) and (4) of section 497.266,
  173  Florida Statutes, are amended to read:
  174         497.266 Care and maintenance trust fund; remedy of
  175  department for noncompliance.—
  176         (3) A No person may not withdraw or transfer any portion of
  177  assets within the corpus of the care and maintenance trust fund,
  178  except as authorized by s. 497.2675, without first obtaining
  179  written consent from the licensing authority.
  180         (4) The trustee of the trust established pursuant to this
  181  section may only invest in investments and loan trust funds, as
  182  prescribed in s. 497.458. The trustee shall take title to the
  183  property conveyed to the trust for the purposes of investing,
  184  protecting, and conserving it for the cemetery company;
  185  collecting income; and distributing withdrawals from the trust
  186  the principal and income as prescribed in this chapter. The
  187  cemetery company is prohibited from sharing in the discharge of
  188  the trustee’s responsibilities under this subsection, except
  189  that the cemetery company may request the trustee to invest in
  190  tax-free investments.
  191         Section 7. Section 497.267, Florida Statutes, is amended to
  192  read:
  193         497.267 Disposition of withdrawals from the income of care
  194  and maintenance trust fund; notice to purchasers and
  195  depositors.—Withdrawals from the net income of the care and
  196  maintenance trust fund shall be used solely for the care and
  197  maintenance of the cemetery, including maintenance of monuments,
  198  which maintenance may shall not be deemed to include the
  199  cleaning, refinishing, repairing, or replacement of monuments;
  200  for reasonable costs of administering the care and maintenance;
  201  and for reasonable costs of administering the trust fund. At the
  202  time of making a sale or receiving an initial deposit, the
  203  cemetery company shall deliver to the person to whom the sale is
  204  made, or who makes a deposit, a written instrument which shall
  205  specifically state the purposes for which withdrawals from the
  206  income of the trust fund shall be used.
  207         Section 8. Section 497.2675, Florida Statutes, is created
  208  to read:
  209         497.2675 Withdrawal methods from the care and maintenance
  210  trust fund.—
  211         (1) The board shall adopt rules, with the approval of the
  212  department, to administer ss. 497.267 and 497.268, including,
  213  but not limited to:
  214         (a) Reporting requirements for a cemetery licensed under
  215  this chapter, including the requirement that specific reports be
  216  made on forms designed and approved by the board by rule.
  217         (b) Rules to address a cemetery licensed under this chapter
  218  whose pro rata share of the fair market value of the trust has
  219  not grown over a 3-year average, including limiting withdrawals
  220  from the care and maintenance trust fund, and any exceptions
  221  approved by the board.
  222         (2) Each cemetery company licensed under this chapter shall
  223  elect one of two withdrawal methods, as specified in paragraphs
  224  (a) and (b), for withdrawals from the cemetery company’s care
  225  and maintenance trust fund. The board shall adopt rules, with
  226  the approval of the department, to administer this subsection.
  227         (a) Net income withdrawal method.—Net income may be
  228  withdrawn from the trust, as earned, on a monthly basis.
  229         (b) Total return withdrawal method.—The licensee shall
  230  multiply the average fair market value of its pro rata share of
  231  the trust by the total return withdrawal percentage and may
  232  withdraw one-fourth of that amount at least quarterly beginning
  233  the first quarter of the new trust year. The initial total
  234  return withdrawal percentage elected by the licensee may not
  235  increase the total return withdrawal percentage for that
  236  quarter. For purposes of this paragraph, “average fair market
  237  value” means, in relation to a trust, the average of the fair
  238  market value of each asset held by the trust at the beginning of
  239  the current year and in each of the 2 previous years, or for the
  240  entire term of the trust if there are less than 2 previous
  241  years, and adjusted as follows:
  242         1. If assets are added to the trust during the years used
  243  to determine the average, the amount of each addition is added
  244  to all years in which such addition is not included.
  245         2. If assets are distributed from the trust during the
  246  years used to determine the average, other than in satisfaction
  247  of the unitrust amount, as defined in s. 738.1041, the amount of
  248  each distribution is subtracted from all other years in which
  249  such distribution is not included.
  250         (3) Without regard to the withdrawal method selected, taxes
  251  on capital gains, if any, must be paid from the trust principal.
  252         Section 9. Paragraphs (a) and (b) of subsection (1) and
  253  subsection (2) of section 497.268, Florida Statutes, are amended
  254  to read:
  255         497.268 Care and maintenance trust fund, percentage of
  256  payments for burial rights to be deposited.—
  257         (1) Each cemetery company shall set aside and deposit in
  258  its care and maintenance trust fund the following percentages or
  259  amounts for all sums received from sales of burial rights:
  260         (a) For burial rights, 10 percent of all payments received;
  261  however, for sales made after September 30, 1993, no deposit
  262  shall be less than $25 per burial right grave. For each burial
  263  right which is provided without charge, the deposit to the fund
  264  shall be $25.
  265         (b) For mausoleums or columbaria, 10 percent of payments
  266  received.
  267         (2) Deposits to the care and maintenance trust fund shall
  268  be made by the cemetery company not later than 30 days following
  269  the close of the calendar month in which any payment was
  270  received; however, when such payments are received in
  271  installments, the percentage of the installment payment placed
  272  in trust must be identical to the percentage which the payment
  273  received bears to the total cost for the burial rights. Trust
  274  income may be used to pay for all usual and customary services
  275  for the operation of a trust account, including, but not limited
  276  to: reasonable trustee and custodian fees, investment adviser
  277  fees, allocation fees, and taxes. If the net income is not
  278  sufficient to pay the fees and other expenses, the fees and
  279  other expenses shall be paid by the cemetery company. Capital
  280  gains taxes shall be paid from the corpus.
  281         Section 10. Section 497.269, Florida Statutes, is amended
  282  to read:
  283         497.269 Care and maintenance trust fund; financial
  284  reports.—On or before April 1 of each year, the trustee shall
  285  furnish adequate financial reports that record the fair market
  286  value with respect to the care and maintenance trust fund
  287  utilizing forms and procedures specified by rule. However, the
  288  department may require the trustee to make such additional
  289  financial reports as it deems necessary. In order to ensure that
  290  the proper deposits to the trust fund have been made, the
  291  department shall examine the status of the trust fund of the
  292  company on a semiannual basis for the first 2 years of the trust
  293  fund’s existence.
  294         Section 11. Subsection (4) of section 497.273, Florida
  295  Statutes, is amended to read:
  296         497.273 Cemetery companies; authorized functions.—
  297         (4) This chapter does not prohibit the interment or
  298  entombment of the inurned cremated animal remains of the
  299  decedent’s pet or pets with the decedent’s human remains or
  300  cremated human remains if:
  301         (a) The human remains or cremated human remains are not
  302  commingled with the inurned cremated animal remains; and
  303         (b) The interment or entombment with the inurned cremated
  304  animal remains is with the authorization of a the decedent or
  305  other legally authorized person.
  306         Section 12. Subsection (1) of section 497.274, Florida
  307  Statutes, is amended to read:
  308         497.274 Standards for grave spaces.—
  309         (1) A standard adult grave space shall measure at least 42
  310  inches in width and 96 inches in length, except for preinstalled
  311  vaults in designated areas. For interments, except cremated
  312  remains, the covering soil shall measure no less than 12 inches
  313  from the top of the outer burial container at time of interment,
  314  unless such level of soil is not physically possible. In any
  315  interment, a legally authorized person the family or next of kin
  316  may waive the 12-inch coverage minimum.
  317         Section 13. Subsection (2) of section 497.277, Florida
  318  Statutes, is amended to read:
  319         497.277 Other charges.—Other than the fees for the sale of
  320  burial rights, burial merchandise, and burial services, no other
  321  fee may be directly or indirectly charged, contracted for, or
  322  received by a cemetery company as a condition for a customer to
  323  use any burial right, burial merchandise, or burial service,
  324  except for:
  325         (2) Charges paid for transferring burial rights from one
  326  purchaser to another, as determined by rule of the board;
  327  however, no such fee may exceed $50.
  328         Section 14. Paragraph (c) of subsection (2) of section
  329  497.283, Florida Statutes, is amended to read:
  330         497.283 Prohibition on sale of personal property or
  331  services.—
  332         (2)
  333         (c) In lieu of delivery as required by paragraph (b), for
  334  sales to cemetery companies and funeral establishments, and only
  335  for such sales, the manufacturer of a permanent outer burial
  336  receptacle which meets standards adopted by rule may elect, at
  337  its discretion, to comply with the delivery requirements of this
  338  section by annually submitting for approval pursuant to
  339  procedures and forms as specified by rule, in writing, evidence
  340  of the manufacturer’s financial responsibility with the
  341  licensing authority for its review and approval. The standards
  342  and procedures to establish evidence of financial responsibility
  343  shall be those in s. 497.461, with the manufacturer of permanent
  344  outer burial receptacles which meet national industry standards
  345  assuming the same rights and responsibilities as those of a
  346  preneed licensee under s. 497.461.
  347         Section 15. Subsection (3) of section 497.286, Florida
  348  Statutes, is amended to read:
  349         497.286 Owners to provide addresses; presumption of
  350  abandonment; abandonment procedures; sale of abandoned unused
  351  burial rights.—
  352         (3) Upon the occurrence of a presumption of abandonment as
  353  set forth in subsection (2), a cemetery may file with the
  354  department a certified notice attesting to the abandonment of
  355  the burial rights. The notice shall do the following:
  356         (a) Describe the burial rights certified to have been
  357  abandoned;
  358         (b) Set forth the name of the owner or owners of the burial
  359  rights, or if the owner is known to the cemetery to be deceased,
  360  then the names, if known to the cemetery, of such claimants as
  361  are heirs at law, next of kin, or specific devisees under the
  362  will of the owner or the legally authorized person;
  363         (c) Detail the facts with respect to the failure of the
  364  owner or survivors as outlined in this section to keep the
  365  cemetery informed of the owner’s address for a period of 50
  366  consecutive years or more; and
  367         (d) Certify that no burial right has been exercised which
  368  is held in common ownership with any abandoned burial rights as
  369  set forth in subsection (2).
  370         Section 16. Section 497.371, Florida Statutes, is amended
  371  to read:
  372         497.371 Embalmers; establishment of embalmer apprentice
  373  program.—The licensing authority adopts rules establishing an
  374  embalmer apprentice program. An embalmer apprentice may perform
  375  only those tasks, functions, and duties relating to embalming
  376  which are performed under the direct supervision of an embalmer
  377  who has an active, valid license under s. 497.368 or s. 497.369.
  378  An embalmer apprentice is shall be eligible to serve in an
  379  apprentice capacity for a period not to exceed 3 years as may be
  380  determined by licensing authority rule or for a period not to
  381  exceed 5 years if the apprentice is enrolled in and attending a
  382  course in mortuary science or funeral service education at any
  383  mortuary college or funeral service education college or school.
  384  An embalmer apprentice shall be issued a license licensed upon
  385  payment of a licensure fee as determined by licensing authority
  386  rule but not to exceed $200. An applicant for the embalmer
  387  apprentice program may not be issued a license unless the
  388  licensing authority determines that the applicant is of good
  389  character and has not demonstrated a history of lack of
  390  trustworthiness or integrity in business or professional
  391  matters.
  392         Section 17. Paragraph (b) of subsection (1) of section
  393  497.372, Florida Statutes, is amended to read:
  394         497.372 Funeral directing; conduct constituting practice of
  395  funeral directing.—
  396         (1) The practice of funeral directing shall be construed to
  397  consist of the following functions, which may be performed only
  398  by a licensed funeral director:
  399         (b) Planning or arranging, on an at-need basis, the details
  400  of funeral services, embalming, cremation, or other services
  401  relating to the final disposition of human remains, including
  402  the removal of such remains from the state, with the family or
  403  friends of the decedent or any other person responsible for such
  404  services; setting the time of the services; establishing the
  405  type of services to be rendered; acquiring the services of the
  406  clergy; and obtaining vital information for the filing of death
  407  certificates and obtaining of burial transit permits.
  408         Section 18. Subsection (4) of section 497.381, Florida
  409  Statutes, is amended to read:
  410         497.381 Solicitation of goods or services.—
  411         (4) At-need solicitation of funeral merchandise or services
  412  is prohibited. A No funeral director or direct disposer or her
  413  or his agent or representative may not contact the legally
  414  authorized person or family or next of kin of a deceased person
  415  to sell services or merchandise unless the funeral director or
  416  direct disposer or her or his agent or representative has been
  417  initially called or contacted by the legally authorized person
  418  or family or next of kin of such person and requested to provide
  419  her or his services or merchandise.
  420         Section 19. Paragraph (c) of subsection (2) of section
  421  497.452, Florida Statutes, is amended to read:
  422         497.452 Preneed license required.—
  423         (2)
  424         (c) The provisions of paragraph (a) do not apply to any
  425  Florida corporation existing under chapter 607 acting as a
  426  servicing agent hereunder in which the stock of such corporation
  427  is held by 100 or more persons licensed pursuant to part III of
  428  this chapter, provided no one stockholder holds, owns, votes, or
  429  has proxies for more than 5 percent of the issued stock of such
  430  corporation; provided the corporation has a blanket fidelity
  431  bond, covering all employees handling the funds, in the amount
  432  of $50,000 or more issued by a licensed insurance carrier in
  433  this state; and provided the corporation processes the funds
  434  directly to and from the trustee within the applicable time
  435  limits set forth in this chapter. The department may require any
  436  person claiming that the provisions of this paragraph exempt it
  437  from the provisions of paragraph (a) to demonstrate to the
  438  satisfaction of the department that it meets the requirements of
  439  this paragraph.
  440         Section 20. Subsections (1) and (3) of section 497.454,
  441  Florida Statutes, are amended to read:
  442         497.454 Approval of preneed contract and related forms.—
  443         (1) Preneed contract forms and related forms shall be filed
  444  with and approved by the licensing authority before prior to
  445  use, pursuant to procedures specified by rule. The licensing
  446  authority may not approve any electronic or paper preneed
  447  contract form that does not provide for sequential prenumbering
  448  thereon.
  449         (3) Specific disclosure regarding the preneed licensee’s
  450  ability to select either trust funding or the financial
  451  responsibility alternative as set forth in s. 497.461 in
  452  connection with the receipt of preneed contract proceeds is
  453  required in the preneed contract.
  454         Section 21. Subsections (2), (7), and (8) of section
  455  497.456, Florida Statutes, are amended to read:
  456         497.456 Preneed Funeral Contract Consumer Protection Trust
  457  Fund.—
  458         (2) Within 60 days after the end of each calendar quarter,
  459  for each preneed contract written during the quarter and not
  460  canceled within 30 days after the date of the execution of the
  461  contract, each preneed licensee, whether funding preneed
  462  contracts by the sale of insurance or by establishing a trust
  463  pursuant to s. 497.458 or s. 497.464, shall remit the sum of
  464  $2.50 for each preneed contract having a purchase price of
  465  $1,500 or less, and the sum of $5 for each preneed contract
  466  having a purchase price in excess of $1,500; and each preneed
  467  licensee utilizing s. 497.461 or s. 497.462 shall remit the sum
  468  of $5 for each preneed contract having a purchase price of
  469  $1,500 or less, and the sum of $10 for each preneed contract
  470  having a purchase price in excess of $1,500.
  471         (7) In any situation in which a delinquency proceeding has
  472  not commenced, the licensing authority may, in its discretion,
  473  use the trust fund for the purpose of providing restitution to
  474  any consumer, owner, or beneficiary of a preneed contract or
  475  similar regulated arrangement under this chapter entered into
  476  after June 30, 1977. If, after investigation, the licensing
  477  authority determines that a preneed licensee has breached a
  478  preneed contract by failing to provide benefits or an
  479  appropriate refund, or that a provider, who is a former preneed
  480  licensee or an establishment which has been regulated under this
  481  chapter, has sold a preneed contract and has failed to fulfill
  482  the arrangement or provide the appropriate refund, and such
  483  preneed licensee or provider does not provide or does not
  484  possess adequate funds to provide appropriate refunds, payments
  485  from the trust fund may be authorized by the licensing
  486  authority. In considering whether payments shall be made or when
  487  considering who will be responsible for such payments, the
  488  licensing authority shall consider whether the preneed licensee
  489  or previous provider has been acquired by a successor who is or
  490  should be responsible for the liabilities of the defaulting
  491  entity. With respect to preneed contracts funded by life
  492  insurance, payments from the fund shall be made: if the insurer
  493  is insolvent, but only to the extent that funds are not
  494  available through the liquidation proceeding of the insurer; or
  495  if the preneed licensee is unable to perform under the contract
  496  and the insurance proceeds are not sufficient to cover the cost
  497  of the merchandise and services contracted for. In no event
  498  shall the licensing authority approve payments in excess of the
  499  insurance policy limits unless it determines that at the time of
  500  sale of the preneed contract, the insurance policy would have
  501  paid for the services and merchandise contracted for. Such
  502  monetary relief shall be in an amount as the licensing authority
  503  may determine and shall be payable in such manner and upon such
  504  conditions and terms as the licensing authority may prescribe.
  505  However, with respect to preneed contracts to be funded pursuant
  506  to s. 497.458, s. 497.459, s. 497.461, or s. 497.462, any
  507  restitution made pursuant to this subsection may shall not
  508  exceed, as to any single contract or arrangement, the lesser of
  509  the gross amount paid under the contract or 4 percent of the
  510  uncommitted assets of the trust fund. With respect to preneed
  511  contracts funded by life insurance policies, any restitution may
  512  shall not exceed, as to any single contract or arrangement, the
  513  lesser of the face amount of the policy, the actual cost of the
  514  arrangement contracted for, or 4 percent of the uncommitted
  515  assets of the trust fund. The total of all restitutions made to
  516  all applicants under this subsection in a single fiscal year may
  517  shall not exceed the greater of 30 percent of the uncommitted
  518  assets of the trust fund as of the end of the most recent fiscal
  519  year or $120,000. The department may use moneys in the trust
  520  fund to contract with independent vendors pursuant to chapter
  521  287 to administer the requirements of this subsection.
  522         (8) All moneys deposited in the Preneed Funeral Contract
  523  Consumer Protection Trust Fund together with all accumulated
  524  appreciation income shall be used only for the purposes
  525  expressly authorized by this chapter and may shall not be
  526  subject to any liens, charges, judgments, garnishments, or other
  527  creditor’s claims against the preneed licensee, any trustee
  528  utilized by the preneed licensee, any company providing a surety
  529  bond as specified in this chapter, or any purchaser of a preneed
  530  contract. No preneed contract purchaser shall have any vested
  531  rights in the trust fund.
  532         Section 22. Paragraphs (a), (b), (d), and (f) of subsection
  533  (1) of section 497.458, Florida Statutes, are amended, a new
  534  paragraph (j) is added to that subsection, and paragraph (a) of
  535  subsection (3), subsection (4), paragraphs (a) and (c) of
  536  subsection (5), and subsections (6) through (9) of that section
  537  are amended, to read:
  538         497.458 Disposition of proceeds received on contracts.—
  539         (1)(a) Any person who is paid, collects, or receives funds
  540  under a preneed contract for funeral services or merchandise or
  541  burial services or merchandise shall deposit an amount at least
  542  equal to the sum of 70 percent of the purchase price collected
  543  for all services sold and facilities rented; 100 percent of the
  544  purchase price collected for all cash advance items sold; and 30
  545  percent of the purchase price collected or 110 percent of the
  546  wholesale cost, whichever is greater, for each item of
  547  merchandise sold. The board may, by rule, specify criteria for
  548  the classification of items sold in a preneed contract as
  549  services, cash advances, or merchandise.
  550         (b) The method of determining wholesale cost shall be
  551  established by rule of the licensing authority and shall be
  552  based upon the preneed licensee’s stated wholesale cost for the
  553  12-month period beginning July 1 during which the initial
  554  deposit to the preneed trust fund for the preneed contract is
  555  made.
  556         (c)(d) The trustee shall take title to the property
  557  conveyed to the trust for the purpose of investing, protecting,
  558  and conserving it for the preneed licensee; collecting income;
  559  and distributing the fair market value principal and income as
  560  prescribed in this chapter. The preneed licensee is prohibited
  561  from sharing in the discharge of these responsibilities, except
  562  that the preneed licensee may request the trustee to invest in
  563  tax-free investments and may appoint an adviser to the trustee.
  564  The licensing authority may adopt rules limiting or otherwise
  565  specifying the degree to which the trustee may rely on the
  566  investment advice of an investment adviser appointed by the
  567  preneed licensee. The licensing authority may adopt rules
  568  limiting or prohibiting payment of fees by the trust to
  569  investment advisors that are employees or principals of the
  570  licensee to whom the trust fund relates.
  571         (e)(f) The deposited funds shall be held in trust, both as
  572  to principal and any change in fair market value income earned
  573  thereon, and shall remain intact, except that the cost of the
  574  operation of the trust or trust account authorized by this
  575  section may be deducted from the income earned thereon.
  576         (j) Beginning April 1, 2018, and on or before each April 1
  577  thereafter, the trustee shall furnish the department with an
  578  annual report regarding each preneed licensee trust account held
  579  by the trustee at any time during the previous calendar year.
  580  The report shall state the name and address of the trustee; the
  581  name, address, and license number of the licensee to whom the
  582  report relates; the trust account number; the beginning and
  583  ending trust balance; and, as may be specified by department
  584  rule, a list of receipts showing the date and amount of any
  585  disbursement. The report must be signed by the trustee’s account
  586  manager for the trust account. The trustee shall submit the
  587  report in a format and pursuant to procedures specified by
  588  department rule.
  589         (3)(a) The trustee shall make regular valuations of assets
  590  it holds in trust and provide a fair market value report of such
  591  valuations to the preneed licensee at least quarterly.
  592         (4) The licensing authority may adopt rules exempting from
  593  the prohibition of paragraph (1)(g) (1)(h), pursuant to criteria
  594  established in such rule, the investment of trust funds in
  595  investments, such as widely and publicly traded stocks and
  596  bonds, notwithstanding that the licensee, its principals, or
  597  persons related by blood or marriage to the licensee or its
  598  principals have an interest by investment in the same entity,
  599  where neither the licensee, its principals, or persons related
  600  by blood or marriage to the licensee or its principals have the
  601  ability to control the entity invested in, and it would be in
  602  the interest of the preneed contract holders whose contracts are
  603  secured by the trust funds to allow the investment.
  604         (5) The trustee of the trust established pursuant to this
  605  section shall only have the power to:
  606         (a) Invest in investments as prescribed in s. 518.11 215.47
  607  and exercise the powers set forth in part VIII of chapter 736.
  608  However, the trustee may not invest in, or count as assets, life
  609  insurance policies or annuity contracts; real estate may not
  610  compose more than 25 percent of the trust’s assets; and,
  611  provided that the licensing authority may by order require the
  612  trustee to liquidate or dispose of any investment within 30 days
  613  after such order, or within such other times as the order may
  614  direct. The licensing authority may issue such order if it
  615  determines that the investment violates any provision of this
  616  chapter or is not in the best interests of the preneed contract
  617  holders whose contracts are secured by the trust funds.
  618         (c) Commingle the property of the trust with the property
  619  of any other trust established pursuant to this chapter and make
  620  corresponding allocations and divisions of assets, liabilities,
  621  income, and expenses, and capital gains and losses.
  622         (6) The preneed licensee, at her or his election, shall
  623  have the right and power, at any time, to revest in it title to
  624  the trust assets, or its pro rata share thereof, provided it has
  625  complied with s. 497.461.
  626         (7) Notwithstanding anything contained in this chapter to
  627  the contrary, the preneed licensee, via its election to sell or
  628  offer for sale preneed contracts subject to this section, shall
  629  represent and warrant, and is hereby deemed to have done such,
  630  to all federal and Florida taxing authorities, as well as to all
  631  potential and actual preneed contract purchasers, that:
  632         (a) Section 497.461 is a viable option available to it at
  633  any and all relevant times;
  634         (b) Section 497.462 is a viable option available to it at
  635  any and all relevant times for contracts written prior to July
  636  1, 2001, for funds not held in trust as of July 1, 2001; or
  637         (c) For any preneed licensee authorized to do business in
  638  this state that has total bonded liability exceeding $100
  639  million as of July 1, 2001, s. 497.462 is a viable option to it
  640  at any and all relevant times for contracts written prior to
  641  December 31, 2004, for funds not held in trust as of July 1,
  642  2001.
  643         (8) If in the preneed licensee’s opinion it does not have
  644  the ability to select the financial responsibility alternative
  645  of s. 497.461 or s. 497.462, then the preneed licensee shall not
  646  have the right to sell or solicit preneed contracts.
  647         (6)(9) The amounts required to be placed in a trust by this
  648  section for contracts previously entered into shall be as
  649  follows:
  650         (a) For contracts entered into before October 1, 1993, the
  651  trust amounts as amended by s. 6, chapter 83-316, Laws of
  652  Florida, shall apply.
  653         (b) For contracts entered into on or after October 1, 1993,
  654  the trust amounts as amended by s. 98, chapter 93-399, Laws of
  655  Florida, shall apply.
  656         Section 23. Paragraph (a) of subsection (6) of section
  657  497.459, Florida Statutes, is amended to read:
  658         497.459 Cancellation of, or default on, preneed contracts.—
  659         (6) OTHER PROVISIONS.—
  660         (a) All preneed contracts are cancelable and revocable as
  661  provided in this section, provided that a preneed contract does
  662  not restrict any contract purchaser who is the beneficiary of
  663  the preneed contract and who is a qualified applicant for, or a
  664  recipient of, supplemental security income, temporary cash
  665  assistance, or Medicaid from making her or his contract
  666  irrevocable. A preneed contract that is made irrevocable
  667  pursuant to this section may not be canceled during the life or
  668  after the death of the contract purchaser or beneficiary as
  669  described in this section. Any unexpended moneys paid on an
  670  irrevocable contract shall be remitted to the Agency for Health
  671  Care Administration for deposit into the Medical Care Trust Fund
  672  after final disposition of the beneficiary.
  673         Section 24. Section 497.460, Florida Statutes, is amended
  674  to read:
  675         497.460 Payment of funds upon death of named beneficiary.
  676  Disbursements of funds discharging any preneed contract
  677  fulfilled after September 30, 1993, shall be made by the trustee
  678  to the preneed licensee upon receipt of a certified copy of the
  679  death certificate of the contract beneficiary or satisfactory
  680  evidence as established by rule of the licensing authority that
  681  the preneed contract has been performed in whole or in part.
  682  However, if the contract is only partially performed, the
  683  disbursement shall only cover the fair market value of that
  684  portion of the contract performed. In the event of any contract
  685  default by the contract purchaser, or in the event that the
  686  funeral merchandise or service or burial merchandise or service
  687  contracted for is not provided or is not desired by the legally
  688  authorized person heirs or personal representative of the
  689  contract beneficiary, the trustee shall return, within 30 days
  690  after its receipt of a written request therefor, funds paid on
  691  the contract to the preneed licensee or to its assigns, subject
  692  to the provisions of s. 497.459.
  693         Section 25. Section 497.461, Florida Statutes, is repealed.
  694         Section 26. The repeal of s. 497.461, Florida Statutes, by
  695  this act does not apply to a preneed licensee who has elected to
  696  maintain a surety bond in lieu of depositing funds into a trust
  697  as of July 1, 2016.
  698         Section 27. Subsection (2), paragraph (a) of subsection
  699  (3), and subsections (7) and (10) of section 497.462, Florida
  700  Statutes, are amended to read:
  701         497.462 Other alternatives to deposits under s. 497.458.—
  702         (2) Upon prior approval by the licensing authority, the
  703  preneed licensee may file a letter of credit with the licensing
  704  authority in lieu of a surety bond. Such letter of credit must
  705  be in a form, and is subject to terms and conditions, prescribed
  706  by the board. It may be revoked only with the express approval
  707  of the licensing authority.
  708         (2)(3)(a) A buyer of preneed merchandise or services who
  709  does not receive such services or merchandise due to the
  710  economic failure, closing, or bankruptcy of the preneed licensee
  711  must file a claim with the surety as a prerequisite to payment
  712  of the claim and, if the claim is not paid, may bring an action
  713  based on the bond and recover against the surety. In the case of
  714  a letter of credit or cash deposit that has been filed with the
  715  licensing authority, the buyer may file a claim with the
  716  licensing authority.
  717         (6)(7) Any preneed contract which promises future delivery
  718  of merchandise at no cost constitutes a paid-up contract.
  719  Merchandise which has been delivered is not covered by the
  720  required performance bond or letter of credit even though the
  721  contract is not completely paid. The preneed licensee may not
  722  cancel a contract unless the purchaser is in default according
  723  to the terms of the contract and subject to the requirements of
  724  s. 497.459. A contract sold, discounted, and transferred to a
  725  third party constitutes a paid-up contract for the purposes of
  726  the performance bond or letter of credit.
  727         (9)(10) The licensing authority may adopt forms and rules
  728  necessary to implement this section, including, but not limited
  729  to, rules which ensure that the surety bond provides and line of
  730  credit provide liability coverage for preneed merchandise and
  731  services.
  732         Section 28. Paragraphs (c) and (f) of subsection (1) of
  733  section 497.464, Florida Statutes, are amended to read:
  734         497.464 Alternative preneed contracts.—
  735         (1) Nothing in this chapter shall prevent the purchaser and
  736  the preneed licensee from executing a preneed contract upon the
  737  terms stated in this section. Such contracts shall be subject to
  738  all provisions of this chapter except:
  739         (c) Section 497.458(1), (3), and (6).
  740         (f) Section 497.461.
  741         Section 29. Subsection (2) and paragraph (c) of subsection
  742  (9) of section 497.465, Florida Statutes, are amended to read:
  743         497.465 Inactive, surrendered, and revoked preneed
  744  licensees.—
  745         (2) Upon becoming inactive, a preneed licensee shall cease
  746  all preneed sales to the public and upon becoming inactive. the
  747  preneed licensee shall collect and deposit into the trust all
  748  funds it receives on or after the date on which it becomes
  749  inactive from sales of into trust all of the funds paid toward
  750  preneed contracts sold before prior to becoming inactive.
  751         (9) The licensing authority may adopt rules for the
  752  implementation of this section, for the purpose of ensuring a
  753  thorough review and investigation of the status and condition of
  754  the preneed licensee’s business affairs for the protection of
  755  the licensee’s preneed customers. Such rules may include:
  756         (c) Requirements for submission of unaudited or audited
  757  financial statements, as the licensing authority deems
  758  advisable.
  759         Section 30. Paragraph (b) of subsection (1) of section
  760  497.601, Florida Statutes, is amended to read:
  761         497.601 Direct disposition; duties.—
  762         (1) Those individuals licensed as direct disposers may
  763  perform only those functions set forth below:
  764         (b) Secure pertinent information from a legally authorized
  765  person the decedent’s next of kin in order to complete the death
  766  certificate and to file for the necessary permits for direct
  767  disposition.
  768         Section 31. Subsection (1) of section 497.607, Florida
  769  Statutes, is amended, present subsections (2), (3), and (4) of
  770  that section are redesignated as subsections (3), (4), and (5),
  771  respectively, and a new subsection (2) is added to that section,
  772  to read:
  773         497.607 Cremation; procedure required.—
  774         (1) At the time of the arrangement for a cremation
  775  performed by any person licensed pursuant to this chapter, the
  776  legally authorized person contracting for cremation services
  777  shall be required to designate her or his intentions with
  778  respect to the disposition of the cremated remains of the
  779  deceased in a signed declaration of intent which shall be
  780  provided by and retained by the funeral or direct disposal
  781  establishment. A cremation may not be performed until a legally
  782  authorized person gives written authorization, which may include
  783  the declaration of intent to dispose of the cremated remains,
  784  for such cremation. The cremation must be performed within 48
  785  hours after a specified time which has been agreed to in writing
  786  by the person authorizing the cremation.
  787         (2) Cremated remains are not property, as defined in s.
  788  731.201(32), and are not subject to ownership or court-ordered
  789  partition. A division of cremated remains requires the consent
  790  of the legally authorized person who approved the cremation or,
  791  if the legally authorized person is the decedent, the next
  792  legally authorized person pursuant to s. 497.005(43). A dispute
  793  regarding the division of cremated remains
  795  ================= T I T L E  A M E N D M E N T ================
  796  And the title is amended as follows:
  797         Delete lines 8 - 63
  798  and insert:
  799         the licensing process; amending s. 497.146, F.S.;
  800         revising required information for current licensees to
  801         include an address for e-mail notification; providing
  802         for rulemaking relating to electronic reporting;
  803         amending s. 497.152, F.S.; conforming provisions to
  804         changes made by the act; requiring, rather than
  805         authorizing, the Board of Funeral, Cemetery, and
  806         Consumer Services to provide certain criteria;
  807         prohibiting the board from requiring a fine when
  808         certain deficiencies are fully corrected within a
  809         specified period; amending s. 497.161, F.S.; revising
  810         requirements for rules of the licensing authority;
  811         amending s. 497.266, F.S.; revising the prohibition
  812         against withdrawal or transfer of assets within the
  813         care and maintenance trust fund to include an
  814         exception; amending s. 497.267, F.S.; revising
  815         provisions relating to the disposition of withdrawals
  816         from the care and maintenance trust fund; creating s.
  817         497.2675, F.S.; requiring the board to adopt certain
  818         rules; requiring a licensed cemetery company to
  819         request a method for withdrawal from the cemetery
  820         company’s care and maintenance trust fund; providing
  821         requirements for such methods; requiring that taxes on
  822         capital gains be paid from the trust principal;
  823         amending s. 497.268, F.S.; conforming provisions to
  824         changes made by the act; deleting a required deposit
  825         in a cemetery company’s care and maintenance trust
  826         fund for mausoleums or columbaria; deleting the
  827         requirement that taxes on capital gain be paid from
  828         the trust corpus; amending s. 497.269, F.S.; requiring
  829         a trustee to annually furnish financial reports that
  830         record the fair market value of the care and
  831         maintenance trust fund; amending ss. 497.273 and
  832         497.274, F.S.; conforming provisions to changes made
  833         by the act; amending s. 497.277, F.S.; deleting a
  834         limitation on the fee for transfer of burial rights
  835         from one purchaser to another; authorizing the board
  836         to determine the transfer fee; amending ss. 497.283
  837         and 497.286, F.S.; conforming provisions to changes
  838         made by the act; amending s. 497.371, F.S.; providing
  839         that an applicant for the embalmer apprentice program
  840         may not be licensed without a determination of
  841         character by the licensing authority; amending ss.
  842         497.372 and 497.381, F.S.; conforming provisions to
  843         changes made by the act; amending s. 497.452, F.S.;
  844         deleting an exception that prohibits a person from
  845         receiving specified funds without holding a valid
  846         preneed license; amending ss. 497.454 and 497.456,
  847         F.S.; conforming provisions to changes made by the
  848         act; amending s. 497.458, F.S.; revising requirements
  849         relating to the disposition of proceeds on a preneed
  850         contract; authorizing the board to specify criteria
  851         for the classification of items sold in a preneed
  852         contract; requiring the trustee to furnish the
  853         department with an annual report regarding preneed
  854         licensee trust accounts beginning on a specified date;
  855         providing requirements for the annual report; revising
  856         which investments a trustee of a trust has the power
  857         to invest in; deleting provisions relating to the
  858         preneed licensee; amending s. 497.459, F.S.;
  859         prohibiting certain preneed contracts from being
  860         canceled during the life or after the death of the
  861         contract purchaser or beneficiary; requiring
  862         unexpended moneys on an irrevocable contract to be
  863         deposited into the Medical Care Trust Fund under
  864         certain circumstances; amending s. 497.460, F.S.;