Florida Senate - 2016                       CS for CS for SB 854
       By the Committees on Regulated Industries; and Banking and
       Insurance; and Senator Hukill
       580-02367-16                                           2016854c2
    1                        A bill to be entitled                      
    2         An act relating to funeral, cemetery, and consumer
    3         services; amending s. 497.005, F.S.; defining terms;
    4         amending s. 497.141, F.S.; revising required
    5         information for licensure to include e-mail addresses;
    6         requiring the Department of Financial Services to
    7         include e-mail notification as a means to administer
    8         the licensing process; amending s. 497.146, F.S.;
    9         revising required information for current licensees to
   10         include an address for e-mail notification; providing
   11         for rulemaking relating to electronic reporting;
   12         amending s. 497.152, F.S.; conforming provisions to
   13         changes made by the act; requiring, rather than
   14         authorizing, the Board of Funeral, Cemetery, and
   15         Consumer Services to provide certain criteria;
   16         prohibiting the board from requiring a fine when
   17         certain deficiencies are fully corrected within a
   18         specified period; amending s. 497.161, F.S.; revising
   19         requirements for rules of the licensing authority;
   20         amending s. 497.266, F.S.; revising the prohibition
   21         against withdrawal or transfer of assets within the
   22         care and maintenance trust fund to include an
   23         exception; amending s. 497.267, F.S.; revising
   24         provisions relating to the disposition of withdrawals
   25         from the care and maintenance trust fund; creating s.
   26         497.2675, F.S.; requiring the board to adopt certain
   27         rules; requiring a licensed cemetery company to
   28         request a method for withdrawal from the cemetery
   29         company’s care and maintenance trust fund; providing
   30         requirements for such methods; requiring that taxes on
   31         capital gains be paid from the trust principal;
   32         amending s. 497.268, F.S.; conforming provisions to
   33         changes made by the act; deleting a required deposit
   34         in a cemetery company’s care and maintenance trust
   35         fund for mausoleums or columbaria; deleting the
   36         requirement that taxes on capital gain be paid from
   37         the trust corpus; amending s. 497.269, F.S.; requiring
   38         a trustee to annually furnish financial reports that
   39         record the fair market value of the care and
   40         maintenance trust fund; amending ss. 497.273 and
   41         497.274, F.S.; conforming provisions to changes made
   42         by the act; amending ss. 497.283 and 497.286, F.S.;
   43         conforming provisions to changes made by the act;
   44         amending s. 497.371, F.S.; providing that an applicant
   45         for the embalmer apprentice program may not be
   46         licensed without a determination of character by the
   47         licensing authority; amending ss. 497.372 and 497.381,
   48         F.S.; conforming provisions to changes made by the
   49         act; amending s. 497.452, F.S.; deleting an exception
   50         that prohibits a person from receiving specified funds
   51         without holding a valid preneed license; amending ss.
   52         497.454 and 497.456, F.S.; conforming provisions to
   53         changes made by the act; amending s. 497.458, F.S.;
   54         revising requirements relating to the disposition of
   55         proceeds on a preneed contract; authorizing the board
   56         to specify criteria for the classification of items
   57         sold in a preneed contract; requiring the trustee to
   58         furnish the department with an annual report regarding
   59         preneed licensee trust accounts beginning on a
   60         specified date; providing requirements for the annual
   61         report; revising which investments a trustee of a
   62         trust has the power to invest in; deleting provisions
   63         relating to the preneed licensee; amending s. 497.459,
   64         F.S.; prohibiting certain preneed contracts from being
   65         canceled during the life or after the death of the
   66         contract purchaser or beneficiary; requiring
   67         unexpended moneys on an irrevocable contract to be
   68         deposited into the Medical Care Trust Fund under
   69         certain circumstances; amending s. 497.460, F.S.;
   70         conforming provisions to changes made by the act;
   71         repealing s. 497.461, F.S., relating to the
   72         authorization for a preneed licensee to elect surety
   73         bonding as an alternative to depositing funds into a
   74         trust; amending s. 497.462, F.S.; deleting obsolete
   75         references to surety bonds; amending s. 497.464, F.S.;
   76         conforming provisions to changes made by the act;
   77         amending s. 497.465, F.S.; requiring an inactive
   78         preneed licensee to deposit a specified amount of
   79         funds received on certain preneed contracts into the
   80         trust upon a specified time; amending ss. 497.601 and
   81         497.607, F.S.; specifying that cremated remains are
   82         not property; requiring a division of cremated remains
   83         to be consented to by certain persons; providing that
   84         a dispute shall be resolved by a court of competent
   85         jurisdiction; conforming provisions to changes made by
   86         the act; providing an effective date.
   88  Be It Enacted by the Legislature of the State of Florida:
   90         Section 1. Present subsections (5) through (8), (9) through
   91  (31), (32) through (38), (39) through (46), (47) through (61),
   92  (62) through (70), and (71) of section 497.005, Florida
   93  Statutes, are redesignated as subsections (6) through (9), (11)
   94  through (33), (35) through (41), (43) through (50), (52) through
   95  (66), (68) through (76), and (78), respectively, and new
   96  subsections (5), (10), (34), (42), (51), (67), and (77) are
   97  added to that section, to read:
   98         497.005 Definitions.—As used in this chapter, the term:
   99         (5) “Beneficiary” means a natural person expressly
  100  identified in a preneed contract as the person for whom funeral
  101  merchandise or services are intended.
  102         (10) “Capital gain” or “capital loss” means a change in the
  103  value of a capital asset, such as investment or real estate,
  104  which gives the asset a different worth than the purchase price.
  105  The gain or loss is not realized until the asset is sold.
  106         (34) “Fair market value” means the fair market value of
  107  assets held by a trust as of a specific date, assuming all
  108  assets of the trust are sold on that specific date.
  109         (42) “Income” means earnings on trust assets, including
  110  interest, dividends, and other income earned on the principal.
  111         (51) “Net income” means, in relation to a trust, ordinary
  112  income minus any income distributions for items such as trust
  113  expenses. For purposes of this subsection, “ordinary income”
  114  means, in relation to a trust, any earnings on trust assets,
  115  including interest and dividends received on property derived
  116  from the use of the trust principal, but does not include
  117  capital gains or capital losses.
  118         (67) “Purchaser” means a person who executes a preneed or
  119  an at-need contract with a licensee for merchandise or services.
  120         (77) “Total return withdrawal percentage” means a
  121  percentage, not to exceed 5 percent, of the fair market value of
  122  a trust.
  123         Section 2. Subsections (2) and (11) of section 497.141,
  124  Florida Statutes, are amended to read:
  125         497.141 Licensing; general application procedures.—
  126         (2) Any person desiring to be licensed shall apply to the
  127  licensing authority in writing using such forms and procedures
  128  as may be prescribed by rule. The application for licensure
  129  shall include the applicant’s social security number if the
  130  applicant is a natural person; otherwise, the applicant’s
  131  federal tax identification number shall be included.
  132  Notwithstanding any other provision of law, the department is
  133  the sole authority for determining the forms and form contents
  134  to be submitted for initial licensure and licensure renewal
  135  application. Such forms and the information and materials
  136  required by such forms may include, as appropriate,
  137  demographics, education, work history, personal background,
  138  criminal history, finances, business information, signature
  139  notarization, performance periods, reciprocity, local government
  140  approvals, supporting documentation, periodic reporting
  141  requirements, fingerprint requirements, continuing education
  142  requirements, business plans, character references, e-mail
  143  addresses, and ongoing education monitoring. Such forms and the
  144  information and materials required by such forms may also
  145  include, to the extent such information or materials are not
  146  already in the possession of the department or the board,
  147  records or information as to complaints, inspections,
  148  investigations, discipline, and bonding. The application shall
  149  be supplemented as needed to reflect any material change in any
  150  circumstance or condition stated in the application that takes
  151  place between the initial filing of the application and the
  152  final grant or denial of the license and that might affect the
  153  decision of the department or the board. After an application by
  154  a natural person for licensure under this chapter is approved,
  155  the licensing authority may require the successful applicant to
  156  provide a photograph of himself or herself for permanent
  157  lamination onto the license card to be issued to the applicant,
  158  pursuant to rules and fees adopted by the licensing authority.
  159         (11) The department shall implement a system for
  160  administration of the overall licensing process, including e
  161  mail notification for the processing and tracking of
  162  applications for licensure, the issuance of licenses approved by
  163  the board, the tracking of licenses issued, the administration
  164  of the license renewal process, and the collection and
  165  processing of fees related to those activities. The system may
  166  use staff and facilities of the department or the department may
  167  enter into a contract for all or any part of such system, upon
  168  such terms and conditions as the department deems advisable, and
  169  such contract may be with another government agency or a private
  170  business.
  171         Section 3. Section 497.146, Florida Statutes, is amended to
  172  read:
  173         497.146 Licensing; address of record; changes; licensee
  174  responsibility.—Each licensee under this chapter is responsible
  175  for notifying the department in writing of the licensee’s
  176  current e-mail address, business and residence mailing address,
  177  and the street address of the licensee’s primary place of
  178  practice and shall notify the department in writing within 30
  179  days after any change in such information, in accordance with
  180  procedures and forms prescribed by rule. Notwithstanding any
  181  other provision of law, electronic notification service by
  182  regular mail to a licensee’s last known e-mail address of record
  183  or preferred street address of record with the department
  184  constitutes adequate and sufficient notice to the licensee for
  185  any official communication to the licensee by the board or the
  186  department, except when other service is expressly required by
  187  this chapter. The department may adopt rules, forms, and
  188  procedures, including a procedure for electronic reporting of
  189  the data provided pursuant to this section. Rules may be adopted
  190  establishing forms and procedures for licensees to provide the
  191  notice required by this section.
  192         Section 4. Paragraphs (b) and (e) of subsection (8),
  193  paragraph (d) of subsection (12), paragraphs (b) and (c) of
  194  subsection (14), and paragraph (b) of subsection (15) of section
  195  497.152, Florida Statutes, are amended to read:
  196         497.152 Disciplinary grounds.—This section sets forth
  197  conduct that is prohibited and that shall constitute grounds for
  198  denial of any application, imposition of discipline, or other
  199  enforcement action against the licensee or other person
  200  committing such conduct. For purposes of this section, the
  201  requirements of this chapter include the requirements of rules
  202  adopted under authority of this chapter. No subsection heading
  203  in this section shall be interpreted as limiting the
  204  applicability of any paragraph within the subsection.
  206  REMAINS.—
  207         (b) Refusing to surrender promptly the custody of a dead
  208  human body upon the express order of the person legally
  209  authorized person to such person’s its custody; however, this
  210  provision shall be subject to any state or local laws or rules
  211  governing custody or transportation of dead human bodies.
  212         (e) Failing to obtain written authorization from a legally
  213  authorized person before the family or next of kin of the
  214  deceased prior to entombment, interment, disinterment,
  215  disentombment, or disinurnment of the remains of any human
  216  being.
  217         (12) DISCLOSURE REQUIREMENTS.—
  218         (d) Failure by a funeral director to make full disclosure
  219  in the case of a funeral or direct disposition with regard to
  220  the use of funeral merchandise that is not to be disposed of
  221  with the body or failure to obtain written permission from a
  222  legally authorized person the purchaser regarding disposition of
  223  such merchandise.
  225  CUSTOMERS.—
  226         (b) Committing or performing with such frequency as to
  227  indicate a general business practice any of the following:
  228         1. Failing to acknowledge and act promptly upon
  229  communications from a licensee’s customers and their
  230  representatives with respect to claims or complaints relating to
  231  the licensee’s activities regulated by this chapter.
  232         2. Denying claims or rejecting complaints received by a
  233  licensee from a customer or customer’s representative, relating
  234  to the licensee’s activities regulated by this chapter, without
  235  first conducting reasonable investigation based upon available
  236  information.
  237         3. Attempting to settle a claim or complaint on the basis
  238  of a material document that was altered without notice to, or
  239  without the knowledge or consent of, the contract purchaser or a
  240  legally authorized person her or his representative or legal
  241  guardian.
  242         4. Failing within a reasonable time to affirm or deny
  243  coverage of specified services or merchandise under a contract
  244  entered into by a licensee upon written request of the contract
  245  purchaser or a legally authorized person her or his
  246  representative or legal guardian.
  247         5. Failing to promptly provide, in relation to a contract
  248  for funeral or burial merchandise or services entered into by
  249  the licensee or under the licensee’s license, a reasonable
  250  explanation to the contract purchaser or a legally authorized
  251  person her or his representative or legal guardian of the
  252  licensee’s basis for denying or rejecting all or any part of a
  253  claim or complaint submitted.
  254         (c) Making a material misrepresentation to a contract
  255  purchaser or a legally authorized person her or his
  256  representative or legal guardian for the purpose and with the
  257  intent of effecting settlement of a claim or complaint or loss
  258  under a prepaid contract on less favorable terms than those
  259  provided in, and contemplated by, the prepaid contract.
  261         For purposes of this subsection, the response of a customer
  262  recorded by the customer on a customer satisfaction
  263  questionnaire or survey form sent to the customer by the
  264  licensee, and returned by the customer to the licensee, shall
  265  not be deemed to be a complaint.
  267         (b) Failing to timely remit as required by this chapter the
  268  required amounts to any trust fund required by this chapter. The
  269  board shall may by rule provide criteria for identifying minor,
  270  nonwillful trust remittance deficiencies; and remittance
  271  deficiencies falling within such criteria, if fully corrected
  272  within 30 days after notice to the licensee by the department,
  273  do shall not constitute grounds for disciplinary action or a
  274  fine.
  275         Section 5. Paragraph (g) is added to subsection (1) of
  276  section 497.161, Florida Statutes, to read:
  277         497.161 Other rulemaking provisions.—
  278         (1) In addition to such other rules as are authorized or
  279  required under this chapter, the following additional rules, not
  280  inconsistent with this chapter, shall be authorized by the
  281  licensing authority.
  282         (g) Rules, not inconsistent with part IV of this chapter
  283  and the Florida Insurance Code, establishing conditions of use
  284  for insurance as a funding mechanism for preneed contracts.
  285         Section 6. Subsections (3) and (4) of section 497.266,
  286  Florida Statutes, are amended to read:
  287         497.266 Care and maintenance trust fund; remedy of
  288  department for noncompliance.—
  289         (3) A No person may not withdraw or transfer any portion of
  290  assets within the corpus of the care and maintenance trust fund,
  291  except as authorized by s. 497.2675, without first obtaining
  292  written consent from the licensing authority.
  293         (4) The trustee of the trust established pursuant to this
  294  section may only invest in investments and loan trust funds, as
  295  prescribed in s. 497.458. The trustee shall take title to the
  296  property conveyed to the trust for the purposes of investing,
  297  protecting, and conserving it for the cemetery company;
  298  collecting income; and distributing withdrawals from the trust
  299  the principal and income as prescribed in this chapter. The
  300  cemetery company is prohibited from sharing in the discharge of
  301  the trustee’s responsibilities under this subsection, except
  302  that the cemetery company may request the trustee to invest in
  303  tax-free investments.
  304         Section 7. Section 497.267, Florida Statutes, is amended to
  305  read:
  306         497.267 Disposition of withdrawals from the income of care
  307  and maintenance trust fund; notice to purchasers and
  308  depositors.—Withdrawals from the net income of the care and
  309  maintenance trust fund shall be used solely for the care and
  310  maintenance of the cemetery, including maintenance of monuments,
  311  which maintenance may shall not be deemed to include the
  312  cleaning, refinishing, repairing, or replacement of monuments;
  313  for reasonable costs of administering the care and maintenance;
  314  and for reasonable costs of administering the trust fund. At the
  315  time of making a sale or receiving an initial deposit, the
  316  cemetery company shall deliver to the person to whom the sale is
  317  made, or who makes a deposit, a written instrument which shall
  318  specifically state the purposes for which withdrawals from the
  319  income of the trust fund shall be used.
  320         Section 8. Section 497.2675, Florida Statutes, is created
  321  to read:
  322         497.2675 Withdrawal methods from the care and maintenance
  323  trust fund.—
  324         (1) The board shall adopt rules, with the approval of the
  325  department, to administer ss. 497.267 and 497.268, including,
  326  but not limited to:
  327         (a) Reporting requirements for a cemetery licensed under
  328  this chapter, including the requirement that specific reports be
  329  made on forms designed and approved by the board by rule.
  330         (b) Rules to address a cemetery licensed under this chapter
  331  whose pro rata share of the fair market value of the trust has
  332  not grown over a 3-year average, including limiting withdrawals
  333  from the care and maintenance trust fund, and any exceptions
  334  approved by the board.
  335         (2) Each cemetery company licensed under this chapter shall
  336  elect one of two withdrawal methods, as specified in paragraphs
  337  (a) and (b), for withdrawals from the cemetery company’s care
  338  and maintenance trust fund. The board shall adopt rules, with
  339  the approval of the department, to administer this subsection.
  340         (a) Net income withdrawal method.—Net income may be
  341  withdrawn from the trust, as earned, on a monthly basis.
  342         (b) Total return withdrawal method.—The licensee shall
  343  multiply the average fair market value of its pro rata share of
  344  the trust by the total return withdrawal percentage and may
  345  withdraw one-fourth of that amount at least quarterly beginning
  346  the first quarter of the new trust year. The initial total
  347  return withdrawal percentage elected by the licensee may not
  348  increase the total return withdrawal percentage for that
  349  quarter. For purposes of this paragraph, “average fair market
  350  value” means, in relation to a trust, the average of the fair
  351  market value of each asset held by the trust at the beginning of
  352  the current year and in each of the 2 previous years, or for the
  353  entire term of the trust if there are less than 2 previous
  354  years, and adjusted as follows:
  355         1. If assets are added to the trust during the years used
  356  to determine the average, the amount of each addition is added
  357  to all years in which such addition is not included.
  358         2. If assets are distributed from the trust during the
  359  years used to determine the average, other than in satisfaction
  360  of the unitrust amount, as defined in s. 738.1041, the amount of
  361  each distribution is subtracted from all other years in which
  362  such distribution is not included.
  363         (3) Without regard to the withdrawal method selected, taxes
  364  on capital gains, if any, must be paid from the trust principal.
  365         Section 9. Paragraphs (a) and (b) of subsection (1) and
  366  subsection (2) of section 497.268, Florida Statutes, are amended
  367  to read:
  368         497.268 Care and maintenance trust fund, percentage of
  369  payments for burial rights to be deposited.—
  370         (1) Each cemetery company shall set aside and deposit in
  371  its care and maintenance trust fund the following percentages or
  372  amounts for all sums received from sales of burial rights:
  373         (a) For burial rights, 10 percent of all payments received;
  374  however, for sales made after September 30, 1993, no deposit
  375  shall be less than $25 per burial right grave. For each burial
  376  right which is provided without charge, the deposit to the fund
  377  shall be $25.
  378         (b) For mausoleums or columbaria, 10 percent of payments
  379  received.
  380         (2) Deposits to the care and maintenance trust fund shall
  381  be made by the cemetery company not later than 30 days following
  382  the close of the calendar month in which any payment was
  383  received; however, when such payments are received in
  384  installments, the percentage of the installment payment placed
  385  in trust must be identical to the percentage which the payment
  386  received bears to the total cost for the burial rights. Trust
  387  income may be used to pay for all usual and customary services
  388  for the operation of a trust account, including, but not limited
  389  to: reasonable trustee and custodian fees, investment adviser
  390  fees, allocation fees, and taxes. If the net income is not
  391  sufficient to pay the fees and other expenses, the fees and
  392  other expenses shall be paid by the cemetery company. Capital
  393  gains taxes shall be paid from the corpus.
  394         Section 10. Section 497.269, Florida Statutes, is amended
  395  to read:
  396         497.269 Care and maintenance trust fund; financial
  397  reports.—On or before April 1 of each year, the trustee shall
  398  furnish adequate financial reports that record the fair market
  399  value with respect to the care and maintenance trust fund
  400  utilizing forms and procedures specified by rule. However, the
  401  department may require the trustee to make such additional
  402  financial reports as it deems necessary. In order to ensure that
  403  the proper deposits to the trust fund have been made, the
  404  department shall examine the status of the trust fund of the
  405  company on a semiannual basis for the first 2 years of the trust
  406  fund’s existence.
  407         Section 11. Subsection (4) of section 497.273, Florida
  408  Statutes, is amended to read:
  409         497.273 Cemetery companies; authorized functions.—
  410         (4) This chapter does not prohibit the interment or
  411  entombment of the inurned cremated animal remains of the
  412  decedent’s pet or pets with the decedent’s human remains or
  413  cremated human remains if:
  414         (a) The human remains or cremated human remains are not
  415  commingled with the inurned cremated animal remains; and
  416         (b) The interment or entombment with the inurned cremated
  417  animal remains is with the authorization of a the decedent or
  418  other legally authorized person.
  419         Section 12. Subsection (1) of section 497.274, Florida
  420  Statutes, is amended to read:
  421         497.274 Standards for grave spaces.—
  422         (1) A standard adult grave space shall measure at least 42
  423  inches in width and 96 inches in length, except for preinstalled
  424  vaults in designated areas. For interments, except cremated
  425  remains, the covering soil shall measure no less than 12 inches
  426  from the top of the outer burial container at time of interment,
  427  unless such level of soil is not physically possible. In any
  428  interment, a legally authorized person the family or next of kin
  429  may waive the 12-inch coverage minimum.
  430         Section 13. Paragraph (c) of subsection (2) of section
  431  497.283, Florida Statutes, is amended to read:
  432         497.283 Prohibition on sale of personal property or
  433  services.—
  434         (2)
  435         (c) In lieu of delivery as required by paragraph (b), for
  436  sales to cemetery companies and funeral establishments, and only
  437  for such sales, the manufacturer of a permanent outer burial
  438  receptacle which meets standards adopted by rule may elect, at
  439  its discretion, to comply with the delivery requirements of this
  440  section by annually submitting for approval pursuant to
  441  procedures and forms as specified by rule, in writing, evidence
  442  of the manufacturer’s financial responsibility with the
  443  licensing authority for its review and approval. The standards
  444  and procedures to establish evidence of financial responsibility
  445  shall be those in s. 497.461, with the manufacturer of permanent
  446  outer burial receptacles which meet national industry standards
  447  assuming the same rights and responsibilities as those of a
  448  preneed licensee under s. 497.461.
  449         Section 14. Subsection (3) of section 497.286, Florida
  450  Statutes, is amended to read:
  451         497.286 Owners to provide addresses; presumption of
  452  abandonment; abandonment procedures; sale of abandoned unused
  453  burial rights.—
  454         (3) Upon the occurrence of a presumption of abandonment as
  455  set forth in subsection (2), a cemetery may file with the
  456  department a certified notice attesting to the abandonment of
  457  the burial rights. The notice shall do the following:
  458         (a) Describe the burial rights certified to have been
  459  abandoned;
  460         (b) Set forth the name of the owner or owners of the burial
  461  rights, or if the owner is known to the cemetery to be deceased,
  462  then the names, if known to the cemetery, of such claimants as
  463  are heirs at law, next of kin, or specific devisees under the
  464  will of the owner or the legally authorized person;
  465         (c) Detail the facts with respect to the failure of the
  466  owner or survivors as outlined in this section to keep the
  467  cemetery informed of the owner’s address for a period of 50
  468  consecutive years or more; and
  469         (d) Certify that no burial right has been exercised which
  470  is held in common ownership with any abandoned burial rights as
  471  set forth in subsection (2).
  472         Section 15. Section 497.371, Florida Statutes, is amended
  473  to read:
  474         497.371 Embalmers; establishment of embalmer apprentice
  475  program.—The licensing authority adopts rules establishing an
  476  embalmer apprentice program. An embalmer apprentice may perform
  477  only those tasks, functions, and duties relating to embalming
  478  which are performed under the direct supervision of an embalmer
  479  who has an active, valid license under s. 497.368 or s. 497.369.
  480  An embalmer apprentice is shall be eligible to serve in an
  481  apprentice capacity for a period not to exceed 3 years as may be
  482  determined by licensing authority rule or for a period not to
  483  exceed 5 years if the apprentice is enrolled in and attending a
  484  course in mortuary science or funeral service education at any
  485  mortuary college or funeral service education college or school.
  486  An embalmer apprentice shall be issued a license licensed upon
  487  payment of a licensure fee as determined by licensing authority
  488  rule but not to exceed $200. An applicant for the embalmer
  489  apprentice program may not be issued a license unless the
  490  licensing authority determines that the applicant is of good
  491  character and has not demonstrated a history of lack of
  492  trustworthiness or integrity in business or professional
  493  matters.
  494         Section 16. Paragraph (b) of subsection (1) of section
  495  497.372, Florida Statutes, is amended to read:
  496         497.372 Funeral directing; conduct constituting practice of
  497  funeral directing.—
  498         (1) The practice of funeral directing shall be construed to
  499  consist of the following functions, which may be performed only
  500  by a licensed funeral director:
  501         (b) Planning or arranging, on an at-need basis, the details
  502  of funeral services, embalming, cremation, or other services
  503  relating to the final disposition of human remains, including
  504  the removal of such remains from the state, with the family or
  505  friends of the decedent or any other person responsible for such
  506  services; setting the time of the services; establishing the
  507  type of services to be rendered; acquiring the services of the
  508  clergy; and obtaining vital information for the filing of death
  509  certificates and obtaining of burial transit permits.
  510         Section 17. Subsection (4) of section 497.381, Florida
  511  Statutes, is amended to read:
  512         497.381 Solicitation of goods or services.—
  513         (4) At-need solicitation of funeral merchandise or services
  514  is prohibited. A No funeral director or direct disposer or her
  515  or his agent or representative may not contact the legally
  516  authorized person or family or next of kin of a deceased person
  517  to sell services or merchandise unless the funeral director or
  518  direct disposer or her or his agent or representative has been
  519  initially called or contacted by the legally authorized person
  520  or family or next of kin of such person and requested to provide
  521  her or his services or merchandise.
  522         Section 18. Paragraph (c) of subsection (2) of section
  523  497.452, Florida Statutes, is amended to read:
  524         497.452 Preneed license required.—
  525         (2)
  526         (c) The provisions of paragraph (a) do not apply to any
  527  Florida corporation existing under chapter 607 acting as a
  528  servicing agent hereunder in which the stock of such corporation
  529  is held by 100 or more persons licensed pursuant to part III of
  530  this chapter, provided no one stockholder holds, owns, votes, or
  531  has proxies for more than 5 percent of the issued stock of such
  532  corporation; provided the corporation has a blanket fidelity
  533  bond, covering all employees handling the funds, in the amount
  534  of $50,000 or more issued by a licensed insurance carrier in
  535  this state; and provided the corporation processes the funds
  536  directly to and from the trustee within the applicable time
  537  limits set forth in this chapter. The department may require any
  538  person claiming that the provisions of this paragraph exempt it
  539  from the provisions of paragraph (a) to demonstrate to the
  540  satisfaction of the department that it meets the requirements of
  541  this paragraph.
  542         Section 19. Subsections (1) and (3) of section 497.454,
  543  Florida Statutes, are amended to read:
  544         497.454 Approval of preneed contract and related forms.—
  545         (1) Preneed contract forms and related forms shall be filed
  546  with and approved by the licensing authority before prior to
  547  use, pursuant to procedures specified by rule. The licensing
  548  authority may not approve any electronic or paper preneed
  549  contract form that does not provide for sequential prenumbering
  550  thereon.
  551         (3) Specific disclosure regarding the preneed licensee’s
  552  ability to select either trust funding or the financial
  553  responsibility alternative as set forth in s. 497.461 in
  554  connection with the receipt of preneed contract proceeds is
  555  required in the preneed contract.
  556         Section 20. Subsections (2), (7), and (8) of section
  557  497.456, Florida Statutes, are amended to read:
  558         497.456 Preneed Funeral Contract Consumer Protection Trust
  559  Fund.—
  560         (2) Within 60 days after the end of each calendar quarter,
  561  for each preneed contract written during the quarter and not
  562  canceled within 30 days after the date of the execution of the
  563  contract, each preneed licensee, whether funding preneed
  564  contracts by the sale of insurance or by establishing a trust
  565  pursuant to s. 497.458 or s. 497.464, shall remit the sum of
  566  $2.50 for each preneed contract having a purchase price of
  567  $1,500 or less, and the sum of $5 for each preneed contract
  568  having a purchase price in excess of $1,500; and each preneed
  569  licensee utilizing s. 497.461 or s. 497.462 shall remit the sum
  570  of $5 for each preneed contract having a purchase price of
  571  $1,500 or less, and the sum of $10 for each preneed contract
  572  having a purchase price in excess of $1,500.
  573         (7) In any situation in which a delinquency proceeding has
  574  not commenced, the licensing authority may, in its discretion,
  575  use the trust fund for the purpose of providing restitution to
  576  any consumer, owner, or beneficiary of a preneed contract or
  577  similar regulated arrangement under this chapter entered into
  578  after June 30, 1977. If, after investigation, the licensing
  579  authority determines that a preneed licensee has breached a
  580  preneed contract by failing to provide benefits or an
  581  appropriate refund, or that a provider, who is a former preneed
  582  licensee or an establishment which has been regulated under this
  583  chapter, has sold a preneed contract and has failed to fulfill
  584  the arrangement or provide the appropriate refund, and such
  585  preneed licensee or provider does not provide or does not
  586  possess adequate funds to provide appropriate refunds, payments
  587  from the trust fund may be authorized by the licensing
  588  authority. In considering whether payments shall be made or when
  589  considering who will be responsible for such payments, the
  590  licensing authority shall consider whether the preneed licensee
  591  or previous provider has been acquired by a successor who is or
  592  should be responsible for the liabilities of the defaulting
  593  entity. With respect to preneed contracts funded by life
  594  insurance, payments from the fund shall be made: if the insurer
  595  is insolvent, but only to the extent that funds are not
  596  available through the liquidation proceeding of the insurer; or
  597  if the preneed licensee is unable to perform under the contract
  598  and the insurance proceeds are not sufficient to cover the cost
  599  of the merchandise and services contracted for. In no event
  600  shall the licensing authority approve payments in excess of the
  601  insurance policy limits unless it determines that at the time of
  602  sale of the preneed contract, the insurance policy would have
  603  paid for the services and merchandise contracted for. Such
  604  monetary relief shall be in an amount as the licensing authority
  605  may determine and shall be payable in such manner and upon such
  606  conditions and terms as the licensing authority may prescribe.
  607  However, with respect to preneed contracts to be funded pursuant
  608  to s. 497.458, s. 497.459, s. 497.461, or s. 497.462, any
  609  restitution made pursuant to this subsection may shall not
  610  exceed, as to any single contract or arrangement, the lesser of
  611  the gross amount paid under the contract or 4 percent of the
  612  uncommitted assets of the trust fund. With respect to preneed
  613  contracts funded by life insurance policies, any restitution may
  614  shall not exceed, as to any single contract or arrangement, the
  615  lesser of the face amount of the policy, the actual cost of the
  616  arrangement contracted for, or 4 percent of the uncommitted
  617  assets of the trust fund. The total of all restitutions made to
  618  all applicants under this subsection in a single fiscal year may
  619  shall not exceed the greater of 30 percent of the uncommitted
  620  assets of the trust fund as of the end of the most recent fiscal
  621  year or $120,000. The department may use moneys in the trust
  622  fund to contract with independent vendors pursuant to chapter
  623  287 to administer the requirements of this subsection.
  624         (8) All moneys deposited in the Preneed Funeral Contract
  625  Consumer Protection Trust Fund together with all accumulated
  626  appreciation income shall be used only for the purposes
  627  expressly authorized by this chapter and may shall not be
  628  subject to any liens, charges, judgments, garnishments, or other
  629  creditor’s claims against the preneed licensee, any trustee
  630  utilized by the preneed licensee, any company providing a surety
  631  bond as specified in this chapter, or any purchaser of a preneed
  632  contract. No preneed contract purchaser shall have any vested
  633  rights in the trust fund.
  634         Section 21. Paragraphs (a), (d), and (f) of subsection (1)
  635  of section 497.458, Florida Statutes, are amended, a new
  636  paragraph (k) is added to that subsection, and paragraph (a) of
  637  subsection (3), subsection (4), paragraphs (a) and (c) of
  638  subsection (5), and subsections (6) through (9) of that section
  639  are amended, to read:
  640         497.458 Disposition of proceeds received on contracts.—
  641         (1)(a) Any person who is paid, collects, or receives funds
  642  under a preneed contract for funeral services or merchandise or
  643  burial services or merchandise shall deposit an amount at least
  644  equal to the sum of 70 percent of the purchase price collected
  645  for all services sold and facilities rented; 100 percent of the
  646  purchase price collected for all cash advance items sold; and 30
  647  percent of the purchase price collected or 110 percent of the
  648  wholesale cost, whichever is greater, for each item of
  649  merchandise sold. The board may, by rule, specify criteria for
  650  the classification of items sold in a preneed contract as
  651  services, cash advances, or merchandise.
  652         (d) The trustee shall take title to the property conveyed
  653  to the trust for the purpose of investing, protecting, and
  654  conserving it for the preneed licensee; collecting income; and
  655  distributing the fair market value principal and income as
  656  prescribed in this chapter. The preneed licensee is prohibited
  657  from sharing in the discharge of these responsibilities, except
  658  that the preneed licensee may request the trustee to invest in
  659  tax-free investments and may appoint an adviser to the trustee.
  660  The licensing authority may adopt rules limiting or otherwise
  661  specifying the degree to which the trustee may rely on the
  662  investment advice of an investment adviser appointed by the
  663  preneed licensee. The licensing authority may adopt rules
  664  limiting or prohibiting payment of fees by the trust to
  665  investment advisors that are employees or principals of the
  666  licensee to whom the trust fund relates.
  667         (f) The deposited funds shall be held in trust, both as to
  668  principal and any change in fair market value income earned
  669  thereon, and shall remain intact, except that the cost of the
  670  operation of the trust or trust account authorized by this
  671  section may be deducted from the income earned thereon.
  672         (k) Beginning April 1, 2018, and on or before each April 1
  673  thereafter, the trustee shall furnish the department with an
  674  annual report regarding each preneed licensee trust account held
  675  by the trustee at any time during the previous calendar year.
  676  The report shall state the name and address of the trustee; the
  677  name, address, and license number of the licensee to whom the
  678  report relates; the trust account number; the beginning and
  679  ending trust balance; and, as may be specified by department
  680  rule, a list of receipts showing the date and amount of any
  681  disbursement. The report must be signed by the trustee’s account
  682  manager for the trust account. The trustee shall submit the
  683  report in a format and pursuant to procedures specified by
  684  department rule.
  685         (3)(a) The trustee shall make regular valuations of assets
  686  it holds in trust and provide a fair market value report of such
  687  valuations to the preneed licensee at least quarterly.
  688         (4) The licensing authority may adopt rules exempting from
  689  the prohibition of paragraph (1)(g) (1)(h), pursuant to criteria
  690  established in such rule, the investment of trust funds in
  691  investments, such as widely and publicly traded stocks and
  692  bonds, notwithstanding that the licensee, its principals, or
  693  persons related by blood or marriage to the licensee or its
  694  principals have an interest by investment in the same entity,
  695  where neither the licensee, its principals, or persons related
  696  by blood or marriage to the licensee or its principals have the
  697  ability to control the entity invested in, and it would be in
  698  the interest of the preneed contract holders whose contracts are
  699  secured by the trust funds to allow the investment.
  700         (5) The trustee of the trust established pursuant to this
  701  section shall only have the power to:
  702         (a) Invest in investments as prescribed in s. 518.11 215.47
  703  and exercise the powers set forth in part VIII of chapter 736.
  704  However, the trustee may not invest in, or count as assets, life
  705  insurance policies or annuity contracts; real estate may not
  706  compose more than 25 percent of the trust’s assets; and,
  707  provided that the licensing authority may by order require the
  708  trustee to liquidate or dispose of any investment within 30 days
  709  after such order, or within such other times as the order may
  710  direct. The licensing authority may issue such order if it
  711  determines that the investment violates any provision of this
  712  chapter or is not in the best interests of the preneed contract
  713  holders whose contracts are secured by the trust funds.
  714         (c) Commingle the property of the trust with the property
  715  of any other trust established pursuant to this chapter and make
  716  corresponding allocations and divisions of assets, liabilities,
  717  income, and expenses, and capital gains and losses.
  718         (6) The preneed licensee, at her or his election, shall
  719  have the right and power, at any time, to revest in it title to
  720  the trust assets, or its pro rata share thereof, provided it has
  721  complied with s. 497.461.
  722         (7) Notwithstanding anything contained in this chapter to
  723  the contrary, the preneed licensee, via its election to sell or
  724  offer for sale preneed contracts subject to this section, shall
  725  represent and warrant, and is hereby deemed to have done such,
  726  to all federal and Florida taxing authorities, as well as to all
  727  potential and actual preneed contract purchasers, that:
  728         (a) Section 497.461 is a viable option available to it at
  729  any and all relevant times;
  730         (b) Section 497.462 is a viable option available to it at
  731  any and all relevant times for contracts written prior to July
  732  1, 2001, for funds not held in trust as of July 1, 2001; or
  733         (c) For any preneed licensee authorized to do business in
  734  this state that has total bonded liability exceeding $100
  735  million as of July 1, 2001, s. 497.462 is a viable option to it
  736  at any and all relevant times for contracts written prior to
  737  December 31, 2004, for funds not held in trust as of July 1,
  738  2001.
  739         (8) If in the preneed licensee’s opinion it does not have
  740  the ability to select the financial responsibility alternative
  741  of s. 497.461 or s. 497.462, then the preneed licensee shall not
  742  have the right to sell or solicit preneed contracts.
  743         (6)(9) The amounts required to be placed in a trust by this
  744  section for contracts previously entered into shall be as
  745  follows:
  746         (a) For contracts entered into before October 1, 1993, the
  747  trust amounts as amended by s. 6, chapter 83-316, Laws of
  748  Florida, shall apply.
  749         (b) For contracts entered into on or after October 1, 1993,
  750  the trust amounts as amended by s. 98, chapter 93-399, Laws of
  751  Florida, shall apply.
  752         Section 22. Paragraph (a) of subsection (6) of section
  753  497.459, Florida Statutes, is amended to read:
  754         497.459 Cancellation of, or default on, preneed contracts.—
  755         (6) OTHER PROVISIONS.—
  756         (a) All preneed contracts are cancelable and revocable as
  757  provided in this section, provided that a preneed contract does
  758  not restrict any contract purchaser who is the beneficiary of
  759  the preneed contract and who is a qualified applicant for, or a
  760  recipient of, supplemental security income, temporary cash
  761  assistance, or Medicaid from making her or his contract
  762  irrevocable. A preneed contract that is made irrevocable
  763  pursuant to this section may not be canceled during the life or
  764  after the death of the contract purchaser or beneficiary as
  765  described in this section. Any unexpended moneys paid on an
  766  irrevocable contract shall be remitted to the Agency for Health
  767  Care Administration for deposit into the Medical Care Trust Fund
  768  after final disposition of the beneficiary.
  769         Section 23. Section 497.460, Florida Statutes, is amended
  770  to read:
  771         497.460 Payment of funds upon death of named beneficiary.
  772  Disbursements of funds discharging any preneed contract
  773  fulfilled after September 30, 1993, shall be made by the trustee
  774  to the preneed licensee upon receipt of a certified copy of the
  775  death certificate of the contract beneficiary or satisfactory
  776  evidence as established by rule of the licensing authority that
  777  the preneed contract has been performed in whole or in part.
  778  However, if the contract is only partially performed, the
  779  disbursement shall only cover the fair market value of that
  780  portion of the contract performed. In the event of any contract
  781  default by the contract purchaser, or in the event that the
  782  funeral merchandise or service or burial merchandise or service
  783  contracted for is not provided or is not desired by the legally
  784  authorized person heirs or personal representative of the
  785  contract beneficiary, the trustee shall return, within 30 days
  786  after its receipt of a written request therefor, funds paid on
  787  the contract to the preneed licensee or to its assigns, subject
  788  to the provisions of s. 497.459.
  789         Section 24. Section 497.461, Florida Statutes, is repealed.
  790         Section 25. The repeal of s. 497.461, Florida Statutes, by
  791  this act does not apply to a preneed licensee who has elected to
  792  maintain a surety bond in lieu of depositing funds into a trust
  793  as of July 1, 2016.
  794         Section 26. Subsection (2), paragraph (a) of subsection
  795  (3), and subsections (7) and (10) of section 497.462, Florida
  796  Statutes, are amended to read:
  797         497.462 Other alternatives to deposits under s. 497.458.—
  798         (2) Upon prior approval by the licensing authority, the
  799  preneed licensee may file a letter of credit with the licensing
  800  authority in lieu of a surety bond. Such letter of credit must
  801  be in a form, and is subject to terms and conditions, prescribed
  802  by the board. It may be revoked only with the express approval
  803  of the licensing authority.
  804         (2)(3)(a) A buyer of preneed merchandise or services who
  805  does not receive such services or merchandise due to the
  806  economic failure, closing, or bankruptcy of the preneed licensee
  807  must file a claim with the surety as a prerequisite to payment
  808  of the claim and, if the claim is not paid, may bring an action
  809  based on the bond and recover against the surety. In the case of
  810  a letter of credit or cash deposit that has been filed with the
  811  licensing authority, the buyer may file a claim with the
  812  licensing authority.
  813         (6)(7) Any preneed contract which promises future delivery
  814  of merchandise at no cost constitutes a paid-up contract.
  815  Merchandise which has been delivered is not covered by the
  816  required performance bond or letter of credit even though the
  817  contract is not completely paid. The preneed licensee may not
  818  cancel a contract unless the purchaser is in default according
  819  to the terms of the contract and subject to the requirements of
  820  s. 497.459. A contract sold, discounted, and transferred to a
  821  third party constitutes a paid-up contract for the purposes of
  822  the performance bond or letter of credit.
  823         (9)(10) The licensing authority may adopt forms and rules
  824  necessary to implement this section, including, but not limited
  825  to, rules which ensure that the surety bond provides and line of
  826  credit provide liability coverage for preneed merchandise and
  827  services.
  828         Section 27. Paragraphs (c) and (f) of subsection (1) of
  829  section 497.464, Florida Statutes, are amended to read:
  830         497.464 Alternative preneed contracts.—
  831         (1) Nothing in this chapter shall prevent the purchaser and
  832  the preneed licensee from executing a preneed contract upon the
  833  terms stated in this section. Such contracts shall be subject to
  834  all provisions of this chapter except:
  835         (c) Section 497.458(1), (3), and (6).
  836         (f) Section 497.461.
  837         Section 28. Subsection (2) and paragraph (c) of subsection
  838  (9) of section 497.465, Florida Statutes, are amended to read:
  839         497.465 Inactive, surrendered, and revoked preneed
  840  licensees.—
  841         (2) Upon becoming inactive, a preneed licensee shall cease
  842  all preneed sales to the public and upon becoming inactive. the
  843  preneed licensee shall collect and deposit into the trust all
  844  funds it receives on or after the date on which it becomes
  845  inactive from sales of into trust all of the funds paid toward
  846  preneed contracts sold before prior to becoming inactive.
  847         (9) The licensing authority may adopt rules for the
  848  implementation of this section, for the purpose of ensuring a
  849  thorough review and investigation of the status and condition of
  850  the preneed licensee’s business affairs for the protection of
  851  the licensee’s preneed customers. Such rules may include:
  852         (c) Requirements for submission of unaudited or audited
  853  financial statements, as the licensing authority deems
  854  advisable.
  855         Section 29. Paragraph (b) of subsection (1) of section
  856  497.601, Florida Statutes, is amended to read:
  857         497.601 Direct disposition; duties.—
  858         (1) Those individuals licensed as direct disposers may
  859  perform only those functions set forth below:
  860         (b) Secure pertinent information from a legally authorized
  861  person the decedent’s next of kin in order to complete the death
  862  certificate and to file for the necessary permits for direct
  863  disposition.
  864         Section 30. Subsection (1) of section 497.607, Florida
  865  Statutes, is amended, present subsections (2), (3), and (4) of
  866  that section are redesignated as subsections (3), (4), and (5),
  867  respectively, and a new subsection (2) is added to that section,
  868  to read:
  869         497.607 Cremation; procedure required.—
  870         (1) At the time of the arrangement for a cremation
  871  performed by any person licensed pursuant to this chapter, the
  872  legally authorized person contracting for cremation services
  873  shall be required to designate her or his intentions with
  874  respect to the disposition of the cremated remains of the
  875  deceased in a signed declaration of intent which shall be
  876  provided by and retained by the funeral or direct disposal
  877  establishment. A cremation may not be performed until a legally
  878  authorized person gives written authorization, which may include
  879  the declaration of intent to dispose of the cremated remains,
  880  for such cremation. The cremation must be performed within 48
  881  hours after a specified time which has been agreed to in writing
  882  by the person authorizing the cremation.
  883         (2) Cremated remains are not property, as defined in s.
  884  731.201(32), and are not subject to partition for purposes of
  885  distribution under s. 733.814. A division of cremated remains
  886  requires the consent of the legally authorized person who
  887  approved the cremation or, if the legally authorized person is
  888  the decedent, the next legally authorized person pursuant to s.
  889  497.005(43). A dispute regarding the division of cremated
  890  remains shall be resolved by a court of competent jurisdiction.
  891         Section 31. This act shall take effect July 1, 2016.