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Title 39 - Trade and Commerce
The provisions of this chapter are known and may be cited as the "South Carolina Cemetery Act of 1984".
Declaration of legislative findings.
It is found to be necessary in the public interest that cemeteries, burial grounds, and any agreement or contract which has for a purpose the furnishing or delivering of any person, property, or merchandise of any nature in connection with the final disposition of a dead human body, must be subject to sufficient regulation by the State to ensure that sound business practices are followed by all entities subject to the provisions of this chapter.
As used in this chapter, unless otherwise stated or unless the context clearly indicates otherwise:
1. "Board" means the South Carolina Cemetery Board.
2. "Cemetery" means a place used, dedicated, or designated for cemetery purposes including any one or combination of:
(a) perpetual care cemeteries;
(b) burial parks for earth interment;
3. "Cemetery company" means any legal entity that owns or controls cemetery lands or property and conducts the business of a cemetery, including all cemeteries owned and operated by cemetery sales organizations or cemetery management organizations or any other legal entity.
4. "Columbarium" means a structure or building substantially exposed aboveground intended to be used for the interment of the cremated remains of a deceased person.
5. "Grave space" means a space of ground in a cemetery intended to be used for the interment in the ground of the remains of a deceased person.
6. "Human remains" or "remains" means the body of a deceased person and includes the body in any stage of decomposition.
7. "Mausoleum" means a structure or building substantially exposed aboveground, intended to be used for the entombment of the remains of a deceased person.
8. "Perpetual care" means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a properly maintained cemetery. In the event that a cemetery offers perpetual care for some designated sections of its property but does not offer perpetual care to other designated sections, the cemetery must be considered a perpetual care cemetery for the purposes of this chapter.
9. "Person" means an individual, corporation, partnership, joint venture, or association.
10. "Vault" means a crypt or underground receptacle which is used for interment in the ground and is designed to encase and protect caskets or similar burial devices. For the purposes of this chapter a vault is a preneed item until delivery to the purchaser at the selling cemetery.
11. "Memorial" means a bronze marker set approximately level with the turf for the purpose of identification, or interchanged to mean upright markers in garden sections which are plotted and specified for the use of upright markers. The term 'marker' is herein interchanged with the term "memorial".
12. "Merchandise" means items used in connection with grave space, niches, mausoleum crypts, granite, memorials, or vaults; provided, however, merchandise shall expressly exclude burial caskets, clothing, cremation urns, professional services, facilities used for preparation, viewing, or services, and automotive equipment and transportation. Items expressly excluded under the definition of merchandise in this provision shall be governed by Chapter 7 of Title 32.
13. "Trust institution" means any state or national bank, state or federal savings and loan association, or trust company authorized to act in a fiduciary capacity in this State.
South Carolina Cemetery Board.
For the purposes of administering the provisions of this chapter, there is established in the Office of the Secretary of State a South Carolina Cemetery Board with the power and duty to promulgate regulations to carry out the provisions of this chapter.
Membership; appointment; term of office.
The board consists of seven members, six of whom must be appointed by the Governor. The Secretary of State is a member ex officio and shall serve as chairman of the board. Two members must be public members who have no financial interest in and are not involved in management of any cemetery or funeral related business, two members must be owners or managers of cemeteries in this State, and two members must be selected from four nominees submitted by the South Carolina Cemetery Association. The Governor may reject any or all of the nominees submitted by the Cemetery Association upon satisfactory showing of unfitness of those rejected. If the Governor declines to appoint any of the nominees so submitted, additional nominees must be submitted in the same manner. Of the six appointed members, two of the initial board must be appointed for a term of two years, two for a term of three years, and two for a term of four years. At the end of their respective terms, successors must be selected in the same manner and appointed for terms of four years and until their successors are appointed and qualify. Any appointment to fill a vacancy on the board created by the resignation, dismissal, death, or disability of a member is for the balance of the unexpired term.
Office; notice of meetings; expenses of board; compensation of members.
The principal office of the board is in the office of the Secretary of State. Notice of all regular meetings may be advertised in three newspapers having general circulation in the State ten or more days in advance of the meetings. Each member of the board shall receive the usual mileage, per diem, and subsistence as provided by law for members of state boards, committees, and commissions. All expenses of the board must be paid from fees received by the board.
The board must meet at least semiannually and may hold special meetings at any time and place within the State at the call of the chairman or upon written request of at least four members.
Budget; source of funds; license fees.
The board shall prepare an annual budget and shall collect the sums of money required for the budget from yearly fees and any other sources provided for in this chapter. On or before July first of each year, each licensed cemetery shall pay a license fee of at least one hundred dollars.
License for operation of cemetery; application; criteria for approval; investigation; notice of denial.
(a) No legal entity may engage in the business of operating a cemetery company, except as authorized by this chapter, without first obtaining a license from the board.
(b) Any legal entity wishing to establish a cemetery shall file a written application for authority to do so with the board on forms prescribed and provided by it.
(c) Upon receipt of the application and a nonrefundable filing fee of at least four hundred dollars the board shall cause an investigation to be made to establish the following criteria for approval of the application:
(1) The creation of a legal entity to conduct a cemetery business and the proposed financial structure.
(2) An irrevocable care and maintenance trust fund agreement must be established and maintained with a trust institution doing business in this State, with an initial deposit of not less than fifteen thousand dollars and a bank cashier's or certified check attached for the amount and payable to the trustee with the trust executed by the applicant and accepted by the trustee, conditioned only upon the approval of the application.
(3) A plat of the land to be used for a cemetery showing the county or municipality and the names of roads and access streets or ways.
(4) Designation by the legal entity, wishing to establish a cemetery, of a general manager who must be a person having had not less than two years' experience in cemetery business.
(5) Development plans sufficient to ensure the community that the cemetery will provide adequate cemetery services and that the property is suitable for use as a cemetery.
(d) The board, after receipt of the investigating report and within ninety days after receipt of the application, shall grant or refuse to grant the authority to organize a cemetery.
(e) If the board intends to deny an application, it shall give written notice to the applicant of its intention to deny. The notice shall state a time and place for a hearing before the board and a summary statement of the reasons for the proposed denial. The notice of intent must be mailed by certified mail to the applicant at the address stated in the application at least fifteen days prior to the scheduled hearing date. Notwithstanding any other provision of law, any appeal from the board's decision must be to the circuit court.
(f) If the board intends to grant the authority it shall give written notice that the authority to organize a cemetery has been granted and that a license to operate will be issued upon the completion of the following:
(1) Establishment of the irrevocable care and maintenance trust fund and receipt by the board of a certificate from the trust institution certifying receipt of the initial deposit required under this chapter.
(2) Development, ready for burial, of not less than two acres, certified by inspection of the board or its representative.
(3) A description, by metes and bounds, of the acreage tract of the proposed cemetery, together with evidence, by title insurance policy or certificate or certification by an attorney at law, that the applicant is the owner in fee simple of the tract of land, which must contain not less than thirty acres and that the fee simple title of the tract of not less than thirty acres is free and clear of all encumbrances. In counties with a population of less than thirty-five thousand inhabitants according to the latest official United States census the tract need be only fifteen acres.
(4) Submit to the board for its approval a copy of regulations as defined in Section 39-55-125.
Depth requirements for funeral vaults.
(A) Where the excavation can be accomplished without drilling or the use of equipment other than a shovel, funeral vaults must be at least ten inches below the earth's surface. As used in this section, "funeral vaults" means caskets, grave liners, or other outer burial containers. It does not include markers, monuments, or crypts constructed in a mausoleum or columbarium.
(B) This section does not apply to cemeteries located in the coastal/lowland areas which are subject to tidal or surface flooding or have a high-level water table, except that vaults may be placed level with the ground in coastal/lowland cemeteries where the water table is at least two feet below ground level and which cemeteries are not subject to tidal or surface water flooding.
(C) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Transfer of control.
In any case where a person proposes to purchase or acquire control of an existing cemetery either by purchasing the outstanding capital stock of any cemetery company or the interest of the owner and, thereby to change the control of the cemetery company, the person must make application on a form prescribed and provided by the board for a license change. The application shall contain the name and address of the proposed new owner. The application for a license change must be accompanied by an initial filing fee of one hundred dollars to cover an investigation, if required.
Powers and duties of board.
In addition to other powers conferred by this chapter upon the board, the board also has the following powers and duties:
(1) Prior to the change of control of any cemetery company, to examine the licensee's records, and, if the board considers it advisable, to assess applicable fees provided for in this chapter or by regulation.
(2) At any time the board finds it necessary to bring an action in the name of the State in the circuit court of the county in which the licensed place of business is located against any person who is the director, the owner, or an officer of a cemetery company to enjoin the person from engaging in or continuing any violation of this chapter or of any regulation or order promulgated pursuant to it. In any action of this nature an order or judgment may be entered by the court awarding a temporary restraining order, temporary injunction, or permanent injunction, as is considered proper. Before this action may be brought, the board shall give the person at least thirty days' notice in writing, stating the alleged violation and giving the person an opportunity within that period to correct the violation or to request by certified mail a hearing before the board. In addition to all other powers under provisions of law governing the issuance and the enforcement of a temporary restraining order, temporary injunction, or a permanent injunction, the court has the power and jurisdiction to impound and appoint a receiver for the property and business of the person, including books, papers, documents, and records, or so much of these as the court considers reasonably necessary to prevent further violation of this chapter or of any regulation or order promulgated pursuant to it through or by means of the use of the property and business. The board may institute proceedings against the cemetery or its officers or owners where, after an examination, pursuant to this chapter, a shortage in the care and maintenance trust fund is discovered so as to recover the shortage.
Records maintained by cemetery; regulations of cemetery; submission of regulations to board.
A. A record must be kept of every lot owner and every burial in the cemetery showing the date of purchase, date of burial, name of the person buried and of the lot owner, and space in which the burial was made. All sales, trust funds, accounting records, and other records of the licensee must be available at the licensee's principal place of business and must be readily available at all reasonable times for examination by an authorized representative of the board. In addition, the owner of a perpetual care cemetery shall have the records of the perpetual care cemetery examined annually by a licensed public accountant and shall submit a copy of the report to the board.
B. A record must be kept of each written complaint received, action taken, and disposition of complaint. These records must be available for examination by representatives of the board.
C. (1) The owner of every cemetery shall adopt, and enforce regulations for the use, care, control, management, restriction, and protection of the cemetery and of all parts and subdivisions thereof; for regulating the use of all property within a cemetery; for regulating the introduction and care of plants or shrubs within the grounds; for regulating the conduct of persons and preventing improper assemblages therein; and for all other purposes considered necessary by the owner of the cemetery for the proper conduct of the business of the cemetery and the protection of the premises and the principles on which the cemetery was organized. The owner may amend or abolish such regulations. The regulations must be plainly printed or typewritten, posted conspicuously, and maintained subject to inspection at the usual place for transacting the regular business of the cemetery. However, no cemetery licensed under the provisions of this chapter may adopt any regulation in conflict with any of the provisions of this chapter or in derogation of the contract rights of lot owners.
(2) The owner of every cemetery shall have the further right to establish reasonable regulations regarding the type material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery. Reasonable regulations may further be adopted regarding the installing by the cemetery or others of all merchandise to be installed in the cemetery. These regulations must be posted conspicuously and maintained, subject to inspection, at the usual place for transacting the regular business of the cemetery. No cemetery owner may prevent the use of any merchandise purchased by a lot owner, his representative, agent, or heirs or assigns from any source, if the merchandise meets all cemetery regulations.
(3) All regulations established by a cemetery pursuant to this subsection must be submitted to the board for its approval.
Trust fund for perpetual care cemetery.
No cemetery company is permitted to establish a perpetual care cemetery or to operate an already-established perpetual care cemetery without providing for the future care and maintenance of the cemetery, for which a trust fund must be established to be known as "the care and maintenance trust fund of (Name of licensee)". If any perpetual care cemetery company refuses or otherwise fails to provide or maintain an adequate care and maintenance trust fund in accordance with the provisions of this chapter, the board, after reasonable notice, must proceed to enforce compliance. The trust fund agreement shall contain the name, location, and address of both the licensee and the trustee, showing the date of the trust agreement and the deposit in the trust of the required funds. No person may transfer the corpus of the care and maintenance trust fund without first obtaining written consent from the board.
Use of income of trust fund; disclosure in written instrument.
At the time of making a sale or receiving the initial deposit on the sale of grave space, niche, or mausoleum crypt, the cemetery company shall deliver to the person to whom the sale is made, or who makes the deposit, an instrument in writing which shall specifically state that the net income of the care and maintenance trust fund must be used solely for the care and maintenance of the cemetery, for reasonable costs of administering the care and maintenance and for reasonable costs of administering the trust fund. This information may be included in the sales contract.
Minimum deposits to trust fund.
No cemetery may cause or permit advertising of a perpetual care fund in connection with the sale or offer for sale of its property unless the amount deposited in the care and maintenance trust fund is equal to not less than twenty dollars or ten percent of the sale price, whichever is greater, per grave space and niche and fifty dollars per mausoleum crypt sold or five percent of the sales price, whichever is greater. Also, for any memorial or grave marker for installation in a cemetery wherein perpetual care is promised or guaranteed, the cemetery shall transmit to the care and maintenance trust fund an amount equal to eight cents per square inch of the memorial's or the marker's base. All deposits must be made within sixty days upon receipt of final payment.
Financial report of trust fund.
Within ninety days after the end of the calendar or fiscal year of the cemetery company, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms prescribed and provided by the board. The board may require the trustee to make any additional financial reports the board considers advisable.
Investment of trust fund; allocation of expenses to income; payment of deficiencies by cemetery company.
The care and maintenance trust fund must be invested and reinvested by the trustee in the same manner as provided by law for the investment of other trust funds. The fees and other expenses of the trust fund must be paid by the trustee from the net income of the trust fund and may not be paid from the corpus. To the extent that the net income is not sufficient to pay the fees and other expenses, they must be paid by the cemetery company.
Merchandise trust fund; records; interest; refunds; report of merchandise trust fund; examination by board; certain contracts void; schedule of charges; penalties.
(A) Any person receiving funds from the sale of merchandise for use in a cemetery in connection with the burial or commemoration of a deceased human being when the use of the merchandise is not immediately requested or required shall deposit the funds in a merchandise trust fund administered by a trust institution.
The cemetery company shall maintain a record of each deposit into any such account and shall identify the name of the purchaser, the amount of the actual cost to the seller and the amount of money to be deposited, and a copy of the contract for the merchandise. Nothing contained herein prohibits the trustee from commingling the deposits in any trust fund of this kind for purposes of the management and investment of funds.
(B) When any memorial, mausoleum crypt, or other merchandise is sold in advance of need and not installed until a later date, one hundred percent of actual cost to the seller at time of deposit must be placed in a trust institution within sixty days after completion of the contract, with interest to accrue, and may not be withdrawn without the consent of the purchaser until the time of delivery or construction.
(C)(1) The funds must be held in a merchandise trust fund both as to principal and income earned and must remain intact, except that the cost of the operation of the trust may be deducted from the income until delivery of the merchandise is made by the cemetery company or other entity. Upon delivery of the merchandise, the cemetery company or other entity shall certify these facts to the trustee. Upon this certification, the amount of money on deposit to the credit of that particular contract, including principal and income, must be paid to the cemetery company, or other entity. The trustee may rely upon all certifications of this kind and is not liable to anyone for this reliance.
(2) If for any reason a cemetery company or other entity which has entered into a contract for the sale of merchandise cannot or does not provide within a reasonable time the merchandise that has been fully paid for and called for by the contract after request in writing to do so, the purchaser or his heirs or assigns or duly authorized representative is entitled to receive the entire amount paid on the contract and any income earned by the merchandise trust fund for that particular item. Reasonable time excludes riots, strikes, acts of war, or any delays beyond the control of the cemetery company or other entity.
(D) At any time after payment in full and prior to delivery of merchandise, a purchaser may make written demand for a refund of the amount deposited in the merchandise trust fund to the credit of the purchaser, and, within thirty days of receipt of the written demand, the trustee shall refund to the purchaser the amount on deposit to his credit, less reasonable commission fees and administrative costs, together with all interest, dividends, increases, or accretions earned on the fund. Upon such refund, the cemetery company is relieved from any further liability for this merchandise.
(E) The trustee shall, annually and within ninety days after the end of the calendar year, file a financial report of the merchandise trust fund with the board on forms provided by the board, setting forth the principal, investments, and payments made and the income earned and disbursed. The board may require the trustee to make additional financial reports as the board considers advisable.
(F) The board may examine the business of any cemetery company or other entity writing contracts for the sale of the property or services described in this section. The written report of the examination must be filed in the office of the board. Any person or entity being examined shall produce the records of the company needed for the examination.
(G) Any provision of any contract for the sale of merchandise described in this section which provides that the purchaser or beneficiary may waive any of the provisions of this section is void.
(H) All cemetery owners shall have a full and complete schedule of all charges for services provided by the cemetery plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copying at the usual place for transacting the regular business of the cemetery.
(I) Any cemetery company or other entity failing to make required contributions to a care and maintenance trust fund or to a merchandise trust fund is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 39-55-265.
(J) If any report is not received within the time stipulated herein, the board may levy and collect a penalty of twenty-five dollars per day for each day of delinquency.
Renewal of license.
Application for renewal of licenses must be submitted on or before July first of each year in the case of an existing cemetery company. Before any sale of cemetery property may take place in the case of a new cemetery company or in the case of a change of ownership or control, as provided in Sections 39-55-105 and 39-55-115, an application for a license must be submitted and a license must have been issued.
Transfer of license.
No license issued under this chapter is transferrable or assignable and no licensee may develop or operate any cemetery authorized by this chapter under any name or any location other than that contained in the license.
Minimum acreage; restrictions on sale, mortgage, lease, or encumbrance; conveyance to municipality; exceptions.
(a) Each licensee shall set aside a minimum of thirty acres of land for use as a cemetery, except as may otherwise be provided in this chapter, and may not sell, mortgage, lease, or encumber it.
(b) The fee simple title in any lands owned by the licensee and dedicated for use by the licensee as a cemetery, which lands are continuous, adjoining or adjacent to the minimum acreage described in subsection (a), may be sold, conveyed, or disposed of by the licensee for use by the new owner for purposes other than as a cemetery if no bodies have been previously interred and if any titles, interests, or burial rights which may have been sold or contracted to be sold in these lands are reconveyed to the licensee prior to the consummation of any conveyance.
(c) Any licensee may convey and transfer to a municipality or county its real and personal property, together with monies deposited with the trustee, if the municipality or county accepts responsibility for maintenance and prior written approval of the board is obtained.
(d) The provisions of subsections (a) and (b) relating to a requirement for minimum acreage do not apply to those cemeteries licensed by the board on or before July 1, 1984, which cemeteries own or control a total of less than the minimum acreage, but these cemeteries may not dispose of any of the lands.
(e) The provisions of subsections (a) and (b) relating to the minimum acreage do not apply when the governing body of a municipality which is within fifteen miles of the corporate limits of the City of Charlotte, North Carolina and in which the cemetery is to be located passes an ordinance authorizing a cemetery with less than thirty acres of land when a licensee establishes an irrevocable trust with a trust corpus of at least fifteen thousand dollars and five acres of land, and the dedication of fifteen percent of all future sales to deposit in the trust on a quarterly basis.
Time for construction of mausoleum or bank of belowground crypts.
(a) A cemetery company is required to start construction of that section of a mausoleum or bank of belowground crypts in which sales, contracts for sale, reservations for sales, or agreements for sales are being made within thirty-six months after the date of the first sale, or refund the money. The construction of the mausoleum section or bank of belowground crypts must be completed within five years after the date of the first sale. Extensions for completion, not to exceed one year, may be granted by the board for good reasons shown.
(b) After construction has begun on the mausoleum section or bank of belowground crypts, the cemetery company shall certify the progress and expenditures to the trustee and is entitled to withdraw all funds deposited to the trust account.
(c) If the mausoleum section or bank of belowground crypts is not completed within the time limits set out in this section, the trustee must contract for and cause the project to be completed and paid for from the trust funds deposited to the project's account. Any balance, less costs and expenses, must be paid to the cemetery company. If not enough funds have been deposited to the escrow trust fund to complete the project, the cemetery company shall be liable for any shortage.
(d) In lieu of the payments to the escrow trust fund the cemetery company may deliver to the board a performance bond in an amount and by surety companies acceptable to the board.
Signs designating presence or absence of perpetual care.
All cemeteries in this State, except family burial grounds, shall display a sign at each entrance, containing letters not less than six inches in height, stating "Perpetual Care" or "Endowment Care" or "No Perpetual Care" or "No Endowment Care", depending upon which method of operation the cemetery is using. Those cemeteries which furnish perpetual care to some portions and no perpetual care to other portions shall display these signs on the appropriate sections of the cemetery to which the sign applies. Portions designated "Perpetual Care" cannot be changed to "No Perpetual Care" once the designation is made.
Free burial rights; care of facilities.
Any cemetery company which offers free burial rights to any person or group of persons must, at the time of the offer, clearly state all conditions upon which the offer is made. Cemeteries must be maintained to present a cared for appearance including, but not limited to, shrubs and trees pruned and trimmed, flower beds weeded, drives maintained, and lawns mowed when needed equivalent to once per week during the grass growing season with ample rainfall.
Designation of cemetery for exclusive use of persons whose religious code requires isolation.
Cemetery companies may provide by their bylaws, regulations, contracts, or deeds the designation of parts of cemeteries for the specific use of persons whose religious code requires isolation.
Any officer, director, or person occupying a similar status licensed to operate a cemetery company who fails to make required contributions to the care and maintenance trust fund or any other trust fund required to be established and maintained by this chapter and any other person violating any other provision of this chapter or order or regulation promulgated under the provisions of this chapter is guilty of a misdemeanor and upon conviction must be fined not more than five thousand dollars or imprisoned for not more than two years. Each violation constitutes a separate offense.
License and filing fees; employees; investigators; subpoenas and search warrants.
The board has authority to adjust license and filing fees through regulations promulgated pursuant to the Administrative Procedures Act and to employ examiners, clerks, and stenographers and other employees as the administration of this chapter may require. The board also has authority to appoint and employ investigators who shall have, in any case in which there is a reason to believe a violation of this chapter or of any order or regulation promulgated under the provisions of this chapter has occurred or is about to occur, the right and power to serve subpoenas and to swear out and execute search warrants.
Promulgation of regulations.
The board has the authority to make regulations pursuant to the Administrative Procedures Act and to issue orders from time to time as the board considers necessary for the enforcement of this chapter.
The provisions of this chapter do not apply to governmental cemeteries, church cemeteries, or family burial grounds, with the exception of the provisions of Sections 39-55-235 and 39-55-265.
Application of provisions to existing cemetery companies.
Any cemetery company lawfully operating on the effective date of this act may continue to operate and must be granted a license by the South Carolina Cemetery Board but must hereafter be operated in accordance with the provisions of Chapter 55 of Title 39 of the 1976 Code. This act shall not apply retroactively to any cemetery company lawfully operating on the effective date of this chapter.