H 4541 Session 111 (1995-1996)
H 4541 General Bill, By Simrill, Kirsh and Moody-Lawrence
A Bill to amend Section 16-17-600, as amended, Code of Laws of South Carolina,
1976, relating to the unlawful destruction or desecration of human remains or
repositories and the penalties therefor, so as to increase the monetary
penalties for certain violations.
02/06/96 House Introduced and read first time HJ-172
02/06/96 House Referred to Committee on Judiciary HJ-172
04/18/96 House Committee report: Favorable with amendment
Judiciary HJ-5
04/24/96 House Amended HJ-330
04/24/96 House Read second time HJ-330
04/25/96 House Read third time and sent to Senate HJ-12
04/29/96 Senate Introduced and read first time SJ-13
04/29/96 Senate Referred to Committee on Judiciary SJ-13
05/08/96 Senate Committee report: Favorable with amendment
Judiciary SJ-15
05/09/96 Senate Amended SJ-66
05/09/96 Senate Read second time SJ-66
05/09/96 Senate Ordered to third reading with notice of
amendments SJ-66
05/15/96 Senate Amended SJ-22
05/15/96 Senate Read third time and returned to House with
amendments SJ-22
05/23/96 House Continued HJ-54
05/23/96 House Roll call Yeas-84 Nays-4 HJ-57
Indicates Matter Stricken
Indicates New Matter
AS PASSED BY THE SENATE
May 15, 1996
H. 4541
Introduced by REPS. Simrill, Moody-Lawrence and
Kirsh
S. Printed 5/15/96--S.
Read the first time April 29, 1996.
A BILL
TO AMEND SECTION 16-17-600, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
UNLAWFUL DESTRUCTION OR DESECRATION OF HUMAN
REMAINS OR REPOSITORIES AND THE PENALTIES
THEREFOR, SO AS TO INCREASE THE MONETARY
PENALTIES FOR CERTAIN VIOLATIONS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 16-17-600 of the 1976 Code, as last
amended by Section 34, Act 184 of 1993, is further amended to
read:
"Section 16-17-600. (A) It is unlawful for a person
wilfully and knowingly, and without proper legal authority to:
(1) destroy or damage the remains of a deceased human
being;
(2) remove a portion of the remains of a deceased human
being from a burial ground where human skeletal remains are
buried, a grave, crypt, vault, mausoleum, or other repository; or
(3) desecrate human remains.
A person violating the provisions of subsection (A) is guilty of a
felony and, upon conviction, must be fined not more than
two five thousand dollars and or
imprisoned not less than one year nor more than ten years, or
both.
A crematory operator shall be held blameless and harmless
for the cremation of a body which has been incorrectly identified by
the funeral director or person bringing the deceased to the
crematory or which the funeral director has obtained incorrect
authorization to cremate.
(B) It is unlawful for a person wilfully and knowingly, and
without proper legal authority to:
(1) obliterate, vandalize, or desecrate a burial ground where
human skeletal remains are buried, a grave, graveyard, tomb,
mausoleum, or other repository of human remains;
(2) deface, vandalize, injure, or remove a gravestone or other
memorial monument or marker commemorating a deceased person
or group of persons, whether located within or outside of a
recognized cemetery, memorial park, or battlefield; or
(3) obliterate, vandalize, or desecrate a park or other area
clearly designated to preserve and perpetuate the memory of a
deceased person or group of persons.
A person violating the provisions of subsection (B) is guilty of a
felony and, upon conviction, must be imprisoned not more than ten
years or fined not more than two ten thousand
dollars, or both.
(C) It is unlawful for a person wilfully, knowingly, and without
proper legal authority to destroy, tear down, or injure only fencing,
plants, trees, shrubs, or flowers located upon or around a repository
for human remains, or within a human graveyard or memorial park.
A person violating the provisions of subsection (C) is guilty of a
felony and, upon conviction, must be fined in the discretion of
the court not more than five thousand dollars or
imprisoned not more than five years, or both. Injury or loss of
property less than two hundred dollars is a misdemeanor triable in
magistrate's court. Upon conviction, the person must be fined,
imprisoned, or both, not more than is permitted by law, without
presentment or indictment by the grand jury."
SECTION 2. The 1976 Code is amended by adding:
"Section 16-17-601. It is unlawful for a person wilfully,
knowingly, and without proper legal authority to destroy, tear
down, or injure a public repository for animal remains or an animal
graveyard including any markers or gravestones therein or fencing,
plants, trees, or shrubs located upon or around a public repository
for animal remains or an animal graveyard. To be found guilty of a
violation of this section, the public repository for animal remains or
the animal graveyard must be clearly marked as such, or the person
committing the violation must have personal knowledge that the
location was a public repository for animal remains or an animal
graveyard. Notice to a purchaser of real property that a public
repository for animal remains or an animal graveyard exists on the
property must be given in the deed to the property.
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 not more than thirty days, or
both."
SECTION 3. Chapter 55, Title 39, as amended, of the 1976
Code is amended to read:
"CHAPTER 55
Cemeteries
Section 39-55-15. The provisions of this chapter are known
and may be cited as the `South Carolina Cemetery Act of 1984'.
Section 39-55-25. 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.
Section 39-55-35. 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;
(c) mausoleums;
(d) columbariums.
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.
Section 39-55-45. 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.
Section 39-55-55. 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.
Section 39-55-65. 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.
Section 39-55-75. 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.
Section 39-55-85. 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.
Section 39-55-95. (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.
Section 39-55-100. (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, 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.
Section 39-55-105. 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.
Section 39-55-115. 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.
Section 39-55-125. 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.
Section 39-55-135. 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.
Section 39-55-145. 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.
Section 39-55-155. 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.
Section 39-55-165. 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.
Section 39-55-175. 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.
Section 39-55-185. (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.
Section 39-55-195. 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.
Section 39-55-205. 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.
Section 39-55-215. (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.
Section 39-55-225. (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.
Section 39-55-235. 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.
Section 39-55-245. 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.
Section 39-55-255. 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.
Section 39-55-265. 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.
Section 39-55-275. 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.
Section 39-55-285. 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.
Section 39-55-295. 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.
Section 39-55-305. 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.
Section 39-55-10. For the purposes of administering this
chapter, there is established a South Carolina Perpetual Care
Cemetery Board with the power and duty to promulgate regulations,
approved by the Director of the Department of Labor, Licensing
and Regulation, to carry out this chapter as provided for by Section
40-1-10. The provisions of this chapter are known and may be cited
as the `South Carolina Perpetual Care Cemetery Act'.
Cemeteries, burial grounds, and any agreement or contract which
has for a purpose the furnishing or delivering of a 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 this chapter.
Section 39-55-20. As used in this chapter, unless otherwise
stated or unless the context clearly indicates otherwise:
(1) `Administrator' means the individual, appointed by the
director, to whom the director has delegated authority to administer
the programs of the South Carolina Perpetual Care Cemetery Board.
(2) `Authorization to operate' or `operation authorization' means
the approval to operate a cemetery which has been granted by the
South Carolina Perpetual Care Cemetery Board. This authorization
is granted in the form of a license.
(3) `Board' means the South Carolina Perpetual Care Cemetery
Board.
(4) `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;
(c) mausoleums;
(d) columbariums.
(5) `Cemetery company' means a 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 entity.
(6) `Columbarium' means a structure or building substantially
exposed aboveground intended to be used for the interment of the
cremated remains of a deceased person.
(7) `Department' means the Department of Labor, Licensing and
Regulation.
(8) `Director' means the Director of the Department of Labor,
Licensing and Regulation, or the director's official designee.
(9) `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.
(10) `Human remains' or `remains' means the body of a deceased
person and includes the body in any stage of decomposition.
(11) `Licensee' means a person granted an authorization to
operate pursuant to this chapter and refers to a person holding a
license, permit, certification, or registration granted pursuant to this
chapter.
(12) `Mausoleum' means a structure or building substantially
exposed aboveground, intended to be used for the entombment of
the remains of a deceased person.
(13) `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
interchanged with the term `memorial' in this chapter.
(14) `Merchandise' means items used in connection with grave
space, niches, mausoleum crypts, granite, memorials, grave liners,
and vaults; however, merchandise shall expressly exclude caskets
and cremation urns, burial clothing, facilities used for preparation,
viewing, and automotive equipment and transportation. Items
expressly excluded under the definition of merchandise in this
provision must be governed by Chapter 7 of Title 32.
(15) `Outer burial container' means the following:
(a) Category I - Protective Outer Burial Container - An outer
burial container (vault) in which a casket or similar burial device is
placed for in-ground interment and is designed and constructed to
support the weight of the earth and standard cemetery maintenance
equipment and to prevent the grave from collapsing while resisting
the entrance of water or any other element found in the soil in
which it is interred.
(b) Category II - Non-protective Outer Burial Container - A
non-sealing outer burial container (graveliner) in which a casket or
similar burial device is placed for in-ground interment and is
designed and constructed to support the weight of the earth and
standard cemetery maintenance equipment and to prevent the grave
from collapsing.
(16) `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.
(17) `Person' means an individual, corporation, partnership, joint
venture, or association.
(18) `Trust institution' means a state or national bank, state or
federal savings and loan association, or trust company authorized to
act in a fiduciary capacity in this State.
Section 39-55-30. No 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. A license issued
under this chapter is not transferable or assignable and a licensee
may not develop or operate a cemetery authorized by this chapter
under a name or a location other than that contained in the license.
No entity may hold itself out to be a perpetual care cemetery
without an authorization to operate as such by the South Carolina
Cemetery Board.
Those cemeteries which furnish perpetual care to some portions
and no perpetual care to other portions shall identify the appropriate
sections of the cemetery at application and shall designate each
section by a sign on the premises. Portions designated `Perpetual
Care' may not be changed to `No Perpetual Care' once the
designation is made.
Section 39-55-40. The board consists of seven members. Two
appointed members must be public members who have no financial
interest in and are not involved in the management of a cemetery or
funeral-related business; four members must be owners or managers
of cemeteries in this State who may be selected from nominees
submitted by the South Carolina Cemetery Association; and one
member must be a monument dealer in this State who may be
selected from nominees submitted by the Monument Builders of the
Carolinas. Of the seven members, three of the initial board
members 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. Nominations for appointment for
professional members must be received by the Governor from the
South Carolina Cemetery Association. If the Governor does not
approve the nominations, the association shall provide the Governor
with another list of nominees and the Governor may select a
nominee from the list provided or appoint another suitable candidate
of his choice. The Governor may replace any board member at any
time for cause. An appointment to fill a vacancy on the board is
for the balance of the unexpired term in the manner of the original
appointment.
Section 39-55-50. The board shall elect annually a chairman,
vice-chairman, and a secretary-treasurer. Notice of all regular
meetings shall 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 shall 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.
Section 39-55-60. In addition to the powers and duties included
in Sections 40-1-70 through 40-1-100, the board shall establish
policies and procedures consistent with this chapter, shall have the
full power to regulate the issuance of licenses, and shall discipline
licensees in any manner permitted by this chapter or under the
provisions of Sections 40-1-110 through 40-1-150.
Section 39-55-65. The board shall have and use an official seal
bearing the name of the board.
Section 39-55-70. Fees must be assessed, collected, and adjusted
on behalf of the board by the Department of Labor, Licensing and
Regulation in accordance with this chapter and the provisions of
Section 40-1-50(D).
(A) Initial fees are:
(1) a license fee of $960.00, biennially;
(2) a filing fee of $400.00;
(3) a license change and investigation fee of $100.00.
(B) The license period is from January 1 through December 31.
(C) Failure to renew a license, permit, or registration by the
December 31 renewal date renders the license invalid. The license
may be reinstated upon receipt of an application postmarked not
later than January 31. Delinquent renewal requests not postmarked
on or before January 31 require that a new application be submitted
under the guidelines in effect for the current period.
(D) All fees are nonrefundable.
Section 39-55-80. (A) A 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 the board.
(1) 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:
(a) creation of a legal entity to conduct a cemetery
business and the proposed financial structure;
(b) establishment and maintenance of an irrevocable care
and maintenance trust fund agreement 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;
(c) presentation of 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;
(d) designation by the legal entity, wishing to establish a
cemetery, of a general manager who must be a person having had
not less than one year's experience in the cemetery business;
(e) presentation of development plans sufficient to ensure
the community that the cemetery shall provide adequate cemetery
services and that the property is suitable for use as a cemetery.
(2) 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;
(3) 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 before the
scheduled hearing date. An appeal from the board's decision must
be made in accordance with the Administrative Procedures Act;
(4) 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 must be issued upon the
completion of the following:
(a) 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;
(b) development, ready for burial, of not less than two
acres, certified by inspection of the board or its representative;
(c) presentation of a description, by metes and bounds, of
the acreage tract of the proposed cemetery, 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 may not sell,
mortgage, lease, or encumber it. In counties with a population of
less than thirty-five thousand inhabitants according to the latest
official United States census, the tract needs to be only fifteen
acres;
(d) submission to the board for its approval a copy of rules
and regulations as defined in this chapter.
(B) 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 shall 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
four hundred dollars to cover an investigation, if required.
Section 39-55-90. (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. Sales, trust funds,
accounting records, and other records of the licensee must be
available at the licensee's principal place of business at reasonable
times for examination by the chairman or other 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 the complaint. These records must
be available for examination by the chairman or other authorized
representative of the board.
(C) The owner of a cemetery shall adopt and enforce regulations
for the use, care, control, management, restriction, and protection of
the cemetery and its parts and subdivisions, the use of property
within a cemetery, the introduction and care of plants or shrubs
within the grounds, the conduct of persons and prevention of
improper assemblages, and 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 the regulations pursuant to Section 39-55-90(H). The
regulations must be printed or typewritten plainly, posted
conspicuously, and maintained subject to inspection at the usual
place for transacting the regular business of the cemetery.
However, a cemetery licensed under this chapter may not adopt a
regulation in conflict with this chapter or in derogation of the
contract rights of lot owners.
(D) The owner of a cemetery shall establish reasonable
regulations regarding the type material, design, composition, finish,
specifications, and installation of merchandise to be used in the
cemetery. However, a regulation may not be promulgated which:
(1) requires the owner or purchaser of a lot to purchase a
monument or marker or the actual installation of a monument or
marker from the cemetery company;
(2) restricts the right of the owner or purchaser of a lot to
purchase a monument or marker or the actual installation of a
monument from the vendor of his choice;
(3) charges the owner or purchaser of a lot a fee for
purchasing a monument or marker or the actual installation of a
monument from a vendor or charges a vendor a fee for delivering
or installing the monument;
(4) discriminates against an owner or a purchaser of a lot
who has purchased a monument or services related to installation of
a monument from a vendor.
(E) Section 39-55-90(D) does not prohibit the cemetery from
charging the owner or purchaser of a lot a reasonable fee for
services actually performed by the cemetery relating to the
installation, care, and maintenance of a monument or marker
including, but not limited to, the survey, recording, and supervision
of the monument or marker, whether or not it is purchased from a
cemetery or an outside vendor.
(F) These regulations must be posted conspicuously and
maintained, subject to inspection, at the usual place for transacting
the regular business of the cemetery. A cemetery owner may not
prevent the use of merchandise purchased by a lot owner or his
representative, agent, heirs, or assigns from any source if the
merchandise meets cemetery regulations.
(G) When a cemetery lot is sold, the cemetery shall disclose on
the sales contract cemetery services for which there may be a later
charge. When a monument, marker, or memorial is sold by a
cemetery company, the cemetery shall provide on the sales contract
an itemized statement of the fees charged for installation, care, and
maintenance of the monument, marker, or memorial. Fees charged
for installation, care, and maintenance of a monument, marker, or
memorial must be shown on the statement as charges separate from
its price, and the statement shall disclose the amount of fees to be
placed in trust by the cemetery company. The board shall
promulgate regulations for the disclosure of fees and services.
(H) Regulations established, amended, or abolished by a
cemetery pursuant to this subsection must be submitted to the board
for its approval.
Section 39-55-100. (A) A cemetery company is not 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 a 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, shall
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 shall transfer the corpus
of the care and maintenance trust fund without first obtaining
written consent from the board.
(B) 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 shall be included in the sales contract.
(C) No cemetery shall 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 a minimum of
ten percent of the sale price, whichever is greater, per grave space
and niche, and fifty dollars per mausoleum crypt sold or a
minimum of five percent of the sales price, whichever is greater.
Also, for a memorial or grave marker for installation in a cemetery
where perpetual care is promised or guaranteed, the cemetery shall
transmit to the care and maintenance trust fund an amount equal to
a minimum of 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.
(D) 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 shall
require the trustee to make any additional financial reports the
board considers advisable.
(E) 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 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.
(F) (1) Upon payment in full, a licensee 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 contracted merchandise is not requested or required immediately
shall store or warehouse the contracted merchandise, or bond or
deposit the funds in a merchandise account with a financial
institution licensed to do business in this State. Notwithstanding
any other provision of law, all funds deposited in the merchandise
account must be held in trust for the benefit of the purchaser of the
merchandise. Any such merchandise account must be subject to
Section 39-55-100(G).
The cemetery company shall maintain a record of each deposit
into the account, identify the name of the purchaser, the amount of
the actual costs to the seller, and the amount of money to be
deposited, and maintain a copy of the contract for the merchandise.
This section does not prohibit the trustee from commingling the
deposits in a trust fund of this kind to manage and invest the funds.
(2) When a memorial, a mausoleum crypt, or other
merchandise is sold in advance of need and not installed, delivered,
or bonded until a later date, seventy-five percent of the purchase
price paid to the seller at the time of deposit must be placed in a
merchandise account within sixty days after completion of the
contract with interest to accrue and must not be withdrawn without
the consent of the purchaser until the time of delivery or
construction.
(3) The funds must be held in a merchandise account as to
principal and income earned and must remain intact, until delivery
of the merchandise is made by the cemetery company or other
entity; however, any service fees charged by the administering
financial institution may be deducted from the income. Upon
delivery of the merchandise, the cemetery company or other entity
shall certify these facts. 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.
(4) After payment in full and before delivery of merchandise,
a purchaser may make written demand for a refund of the amount
deposited in the merchandise account to the credit of the purchaser,
and, within ninety days of receipt of the written demand, the
licensee shall deliver the merchandise or refund to the purchaser the
amount on deposit to his credit. Upon the refund or delivery of
merchandise the cemetery company is relieved from further liability
for this merchandise.
(G) The licensee, annually and within ninety days after the end
of the calendar year, shall file a financial report, signed by a
licensed accountant, of the merchandise account 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 licensee to make additional
financial reports the board considers advisable.
(H) The board may cause the examination of the business of a
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 this office of the board.
A person or an entity being examined shall produce the records of
the company needed for the examination.
(I) A provision of a contract for the sale of merchandise
described in this section which provides that the purchaser or
beneficiary may waive this section is void.
(J) Cemetery owners shall have a full and complete schedule of
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.
(K) A cemetery company or other entity failing to make
required contributions to a care and maintenance trust fund or to a
merchandise account fund is guilty of a misdemeanor and, upon
conviction, must be punished pursuant to Section 39-55-220.
(L) If a report is not received within the required time, the
board may levy and collect a penalty of twenty-five dollars a day
for each day of delinquency.
(M) Notwithstanding any other provision of law, when a
cemetery vault or other merchandise is installed by an installer
other than the manufacturer, the installer shall provide the customer
for whom the vault or other merchandise is installed a warranty
which must be equivalent to the warranty offered by the
manufacturer for vaults or merchandise of the type installed.
Section 39-55-110. (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 as a
cemetery, which lands are contiguous, 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
or 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 or contracted to be
sold in these lands are reconveyed to the licensee before the
consummation of any conveyance.
(C) A 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
in existence prior to the effective date of this act. Where a
cemetery owns or controls a total of less than the minimum acreage,
this cemetery may not dispose of any of the lands.
Section 39-55-120 (A) (1) A cemetery company is required to
start construction of that section of a mausoleum or bank of below
ground 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 below ground
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.
(2) After construction has begun on the mausoleum section or
bank of below ground crypts, the cemetery company shall certify
the progress and expenditures and is entitled to withdraw all funds
deposited to the mausoleum account.
(3) If the mausoleum section or bank of below ground crypts
is not completed within the time limits set out in this section, the
board shall contract for and cause the project to be completed and
paid for from the funds deposited to the project and the cemetery
company must be liable for any shortage.
(4) In lieu of the payments to the mausoleum account the
cemetery company may deliver to the board a performance bond in
an amount and by surety companies acceptable to the board.
(B) (1) Where the excavation can be accomplished without
drilling or the use of equipment other than a shovel or other `hand
tools', burial vaults must be at least ten inches below the earth's
surface. As used in this section, `burial vaults' includes caskets,
grave liners, or other outer burial containers. It does not include
markers, monuments, or crypts constructed in a mausoleum or
columbarium.
(2) This section does not apply to cemeteries located in the
coastal and 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 and lowland cemeteries
where the water table is at least two feet below ground level and
where cemeteries are not subject to tidal or surface flooding.
Section 39-55-130. 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.
Section 39-55-140. 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 a 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 Section
39-55-80, an application for a license must be submitted and a
license must have been issued.
Section 39-55-150. Applications may be denied pursuant to the
provisions of Section 40-1-130.
Section 39-55-160. Investigations and hearings must be
conducted in accordance with the provisions of Sections 40-1-80,
40-1-90 and 40-1-190.
Section 39-55-170. Restraining orders and cease and desist orders
must be issued in accordance with the provisions of Section
40-1-100.
Section 39-55-180. In addition to grounds for disciplinary actions
as set forth in Section 40-1-110 and in accordance with Section
39-55-190, the board shall take disciplinary action against a licensee
who:
(1) fails to pay the required fees;
(2) fails to make required reports;
(3) fails to remit to the care and maintenance trust fund or
merchandise trust fund the required amounts;
(4) knowingly makes a false statement intended to influence
or persuade;
(5) knowingly and continually makes flagrant
misrepresentations or knowingly condones false promises by its
cemetery agents or salesmen;
(6) wilfully violates this chapter or regulations promulgated
by the board;
(7) acts in a fraudulent manner, whether of the same or a
different character than specified in this section;
(8) fails to make required contributions to the care and
maintenance trust fund or any other funds required to be established
and maintained by this chapter.
Section 39-55-190. Upon a determination by the board that one
or more of the grounds for disciplining a licensee exist, as provided
for in Sections 39-55-180 and 40-1-110, the board may, in addition
to the actions as provided for in Section 40-1-120 impose a fine not
to exceed ten thousand dollars. All final orders which are made
public must be mailed to local and state professional associations,
all firms and facilities with which the respondent is associated,
states where the person has a license known to the board, and to
any other source to which the board wishes to furnish this
information.
Section 39-55-200. A licensee who is under investigation for any
of the grounds provided for in Section 39-55-180 for which the
board may take disciplinary action shall voluntarily surrender his
license to the board in accordance with the provisions of Section
40-1-150.
Section 39-55-210. A person aggrieved by any action of the
board may seek review of the decision in accordance with the
provisions of Section 40-1-160.
Section 39-55-220. (A) A person who operates a cemetery in
this State in violation of this chapter or who knowingly submits
false information to the board for the purpose of obtaining a license
is guilty of a misdemeanor and, upon conviction, must be fined not
less than two hundred fifty dollars or more than ten thousand
dollars or imprisoned not less than thirty days or more than twelve
months, or both.
(B) A person violating any other provision of this chapter is
guilty of a misdemeanor and, upon conviction, must be fined not
less than one hundred fifty dollars or more than five thousand
dollars or imprisoned not less than ten days or more than six
months, or both.
Section 39-55-230. 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 39-55-130
and 39-55-220.
Section 39-55-240. (A) A cemetery company licensed by the
South Carolina Cemetery Board and operating in good standing on
June 30, 1991, shall continue to operate and must be granted a
license by the South Carolina Perpetual Care Cemetery Board and is
exempt from any filing fee as set forth in Section 39-55-70 (A).
(B) A cemetery company established between July 1, 1991, and
the effective date of this act shall continue to operate and must be
granted a license by the South Carolina Perpetual Care Cemetery
Board, provided an Irrevocable Care and Maintenance Trust Fund
Agreement with a trust institution doing business in this State has
been properly entered into by the cemetery company and a copy of
the same has been filed with the board.
(C) Beginning with the first renewal after the effective date of
this act, all cemetery companies must be operated in accordance
with the provisions of this chapter.
Section 39-55-250. (A) A cemetery company which offers free
burial rights to a person or group of persons shall, 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 bed weeded, drives maintained, and lawns mowed when
needed equivalent to once a week during grass growing season with
ample rainfall.
(B) Cemetery companies may provide by their bylaws,
regulations, contracts, or deeds the designations of parts of
cemeteries for the specific use of persons whose religious code
requires isolation.
Section 39-55-260. If any provision of this statute or the
application of this statute to any person or circumstances is held
invalid, the invalidity does not affect other provisions or
applications of this statute which can be given effect without the
invalid provision or application, and to this end the provisions of
this statute are severable."
SECTION 4. Notwithstanding any other provision of law,
seventy-five percent of any fee paid for funeral services pursuant to
a funeral service contract must be placed in escrow by the service
provider to defray costs associated with preparing the grave.
SECTION 5. A. There is hereby established on the grounds of
the State House an African-American History Monument. The
design and placement of the monument shall be determined by the
commission appointed pursuant to subsection B of this section. The
commission shall make reasonable efforts to incorporate all eras of
African-American history in the design. The monument shall be
erected as soon as is reasonably possible after it is approved by the
General Assembly by concurrent resolution and the State House
Renovation Project is completed.
B. (1) An African-American History Monument Commission
is created to determine the design of the monument and to
determine the placement of the monument on the State House
grounds. The commission is empowered and directed to raise
private funds and to receive gifts and grants to carry out the
purpose for which it is created. By January 1, 1997, the
commission shall report the proposed design of the monument to
the State House Committee for its approval. After action by the
committee approving the design, the State House Committee shall
cause to be introduced the concurrent resolution serving as the
instrument of approval as provided in subsection A of this section.
The State shall ensure proper maintenance of the monument as is
done for other historical monuments on the State House grounds.
Four members must be appointed by the President Pro Tempore
of the Senate, four members must be appointed by the Speaker of
the House of Representatives, and one member must be appointed
by the Governor. Notwithstanding Section 8-13-770 of the 1976
Code, members of the General Assembly may be appointed to this
commission. One of the members appointed by the President Pro
Tempore must be a Senator and one of the members appointed by
the Speaker must be a member of the House of Representatives.
Commission members are not entitled to receive the subsistence,
mileage, and per diem otherwise provided by law for members of
state boards, committees, and commissions.
(2) The commission also shall study the feasibility of
establishing an African-American History Museum analogous to the
Confederate Relic Room and make recommendations with respect to
its findings on this subject to the State House Committee. This new
museum would collect and display historical artifacts and other
items reflecting African-American history in this State. A
preliminary report on this study must be made to the State House
Committee no later than January 1, 1997, with a final report and
recommendations due as soon as practicable thereafter.
(3) The commission established pursuant to this section is
dissolved on the later of the dedication of the African-American
History Monument or the final report of the commission on the
feasibility of establishing an African-American History Museum.
C. The monument placed on the State House Grounds pursuant
to this section, along with all other monuments located on the State
House Grounds, shall receive the protections from desecration and
destruction provided in Section 16-17-600.
SECTION 6. This act takes effect upon approval by the
Governor except that Section 3 takes effect on January 1, 1997.
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