Current Status Introducing Body:
SenateBill Number: 572Primary Sponsor: DrummondCommittee Number: 08Type of Legislation: GBSubject: Cemetery BoardResiding Body: SenateCurrent Committee: General CommitteeCompanion Bill Number: 3408Computer Document Number: 572Introduced Date: Jan 31, 1991Last History Body: SenateLast History Date: Jan 29, 1992Last History Type: Recommitted to CommitteeScope of Legislation: StatewideAll Sponsors: DrummondType of Legislation: General Bill
Bill Body Date Action Description CMN ---- ------ ------------ ------------------------------ --- 572 Senate Jan 29, 1992 Recommitted to Committee 08 572 Senate Mar 28, 1991 Read second time, ordered to third reading with notice of general amendments, carrying over all amendments to third 572 Senate Mar 27, 1991 Committee Report: majority 08 favorable, with amendment, minority unfavorable 572 Senate Jan 31, 1991 Introduced, read first time, 08 referred to CommitteeView additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
March 27, 1991
S. Printed 3/27/91--S.
Read the first time January 31, 1991.
To whom was referred a Bill (S. 572), to amend Section 39-55-55, Code of Laws of South Carolina, 1976, relating to members of the Cemetery Board, etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking Section 39-55-55, SECTION 1, page 2, beginning on line 1, and inserting:
/Section 39-55-55. The board consists of seven members, and six of whom must be appointed by the Governor. The Secretary of State is a member ex officio, is a nonvoting member who may not vote even when there is a tie vote, and shall serve serves as chairman of the board. Two appointed members must be public members who have no financial interest in and are not involved in the management of any a cemetery or funeral related business, two three members must be owners or managers of cemeteries in this State, and two members must who may be selected from four 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. 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 Nominations for appointment may be received by the Governor from an individual, a group, or an association in this State. Members must be appointed for terms of four years and until their successors are appointed and qualify. Any An 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 in the manner of the original appointment./
Amend further, Section 39-55-115(A)(2), SECTION 3, page 5, line 9, after /imposed/ by inserting /by the board/.
Amend further, Section 39-55-125(C)(2)(a), SECTION 4, page 7, by striking the sentence beginning on line 32 and inserting:
/The owner of every a cemetery shall have the further right to establish reasonable regulations regarding the type material, design, composition, finish, and specifications, and installation of any and all merchandise to be used or installed in the cemetery.
Amend further by striking Section 39-55-125(C)(2)(a)(iii), SECTION 4, page 8, beginning on line 5, and inserting:
(iii) charges the owner or purchaser of a lot a fee for purchasing a monument or services related to the installation of a monument from a vendor or charges a vendor a fee for delivering or installing the monument. This section does not prohibit a 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 the monument;/
Amend further by striking Section 39-55-125(C)(3), SECTION 4, page 8, beginning on line 25, and inserting:
/(3) 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 it. 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 must disclose the amount of fees to be placed in trust by the cemetery company. The board shall promulgate regulations to provide a form for the disclosure of fees and services./
Amend further by striking SECTIONS 6 and 7, page 11, beginning on line 29, and inserting:
/SECTION 6. The members added to the South Carolina Cemetery Board in Section 39-55-55 of the 1976 Code in Section 1 of this act must be appointed upon the expiration of the terms of current board members who serve until their terms expire.
SECTION 7. In accordance with Section 1-20-60 of the 1976 Code, the existence of the South Carolina Cemetery Board is reauthorized for five years.
SECTION 8. This act takes effect upon approval by the Governor./
Amend title to conform.
Majority favorable. Minority unfavorable.
DONALD H. HOLLAND JOE WILSON
For Majority. For Minority.
TO AMEND SECTION 39-55-55, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MEMBERS OF THE CEMETERY BOARD, SO AS TO DELETE THE PROVISIONS FOR TWO MEMBERS TO BE APPOINTED FROM NOMINATIONS BY THE CEMETERY ASSOCIATION AND FOR INITIAL TERMS, PROVIDE FOR NOMINATIONS FROM AN INDIVIDUAL, A GROUP, OR AN ASSOCIATION, AND PROVIDE FOR APPOINTMENT AFTER A VACANCY; TO AMEND SECTION 39-55-95, RELATING TO LICENSES FOR THE OPERATION OF A CEMETERY, SO AS TO DECREASE THE REQUIRED EXPERIENCE FOR A GENERAL MANAGER FROM TWO YEARS TO ONE YEAR; TO AMEND SECTION 39-55-115, RELATING TO POWERS AND DUTIES OF THE BOARD, SO AS TO PROVIDE ADDITIONAL DUTIES REGARDING INVESTIGATIONS OF LICENSEES AND REVOCATION AND SUSPENSION OF LICENSES AND PROVIDE FOR APPLICATION OF THE ADMINISTRATIVE PROCEDURES ACT TO RELATED PROCEEDINGS; TO AMEND SECTION 39-55-125, RELATING TO RECORDS AND REGULATIONS OF A CEMETERY, SO AS TO PROHIBIT CERTAIN REGULATIONS, PROVIDE FOR THE ASSESSMENT OF FEES, DEFINE LABOR COSTS, AND PROVIDE FOR THE ESTABLISHMENT, AMENDMENT, AND ABOLISHMENT OF REGULATIONS PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTION 39-55-185, RELATING TO THE MERCHANDISE TRUST FUND, SO AS TO REQUIRE A FINANCIAL REPORT TO BE SIGNED BY A LICENSED ACCOUNTANT; AND TO REAUTHORIZE THE EXISTENCE OF THE CEMETERY BOARD FOR FIVE YEARS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 39-55-55 of the 1976 Code is amended to read:
"Section 39-55-55. The board consists of seven members, and six of whom must be appointed by the Governor. The Secretary of State is a member ex officio and shall serve serves as chairman of the board. Two appointed members must be public members who have no financial interest in and are not involved in the management of any a cemetery or funeral related business, and at least 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. Nominations for appointment may be received by the Governor from an individual, a group, or an association in this State. Members must be appointed for terms of four years and until their successors are appointed and qualify. Any An 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 in the manner of the original appointment."
SECTION 2. Section 39-55-95 of the 1976 Code is amended to read:
"Section 39-55-95. (a)(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) (B) Any 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 it.
(c) (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 establishment and maintenance of 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 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.;
(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' one year's experience in the cemetery business.;
(5) presentation of 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) (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) (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 must 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 before the scheduled hearing date. Notwithstanding any other provision of law, any An appeal from the board's decision must be is to the circuit court.
(f) (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) presentation of 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 needs to be only fifteen acres.
(4) Submit submission to the board for its approval a copy of regulations as defined in Section 39-55-125."
SECTION 3. Section 39-55-115 of the 1976 Code is amended to read:
"Section 39-55-115. (A) In addition to other powers and duties conferred by this chapter upon the board, the board it 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 investigate, upon its own initiative or upon a verified complaint in writing, the actions of a person engaged in the business or acting in the capacity of a licensee under this chapter. A license may be revoked or suspended by the board for not more than two years or until compliance with a lawful order imposed in the final order of suspension, or both, if the licensee in performing or attempting to perform acts specified in this chapter:
(a) fails to pay the required fees;
(b) fails to make required reports;
(c) fails to remit to the care and maintenance trust fund or merchandise trust fund the required amounts;
(d) makes a substantial misrepresentation;
(e) makes a false statement likely to influence or persuade;
(f) continually and flagrantly misrepresents or makes false promises through cemetery agents or salesmen;
(g) violates this chapter or regulations promulgated by the board; or
(h) acts in a manner which constitutes fraud or dishonest dealing, whether of the same or a different character than specified in this section.
When 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 a person who is the director, the owner, or an officer of a cemetery company to enjoin the person from engaging in or continuing any a violation of this chapter or of any regulation regulations or order orders promulgated pursuant to it. In any an 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 regulations or order orders 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.
(B) The Administrative Procedures Act applies to proceedings under this chapter or the revocation or suspension of licenses."
SECTION 4. Section 39-55-125 of the 1976 Code is amended to read:
"Section 39-55-125. A. (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 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 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. (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 the chairman or other authorized representatives of the board.
C. (C) (1) (a) The owner of every a cemetery shall adopt, and enforce regulations for the use, care, control, management, restriction, and protection of the cemetery and of all its 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 prevention of 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 the regulations pursuant to item (4).
(b) The regulations must be plainly printed or typewritten plainly, 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 a regulation in conflict with any of the provisions of this chapter or in derogation of the contract rights of lot owners.
(2)(a) The owner of every a cemetery shall have the further right to may establish reasonable regulations regarding the type material, design, composition, finish, and specifications, and installation 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. However, no regulation may be adopted which:
(i) requires the owner or purchaser of a lot to purchase a monument or services related to the installation of a monument from the cemetery company;
(ii) restricts the right of the owner or purchaser of a lot to purchase a monument or services related to the installation of a monument from the vendor of choice;
(iii) charges the owner or purchaser of a lot a fee for purchasing a monument or services related to the installation of a monument from a vendor or charges a vendor a fee for delivering or installing the monument. This section does not prohibit a cemetery from charging the owner or purchaser of a lot a reasonable fee for services relating to the care and maintenance of a monument;
(iv) 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.
(b) 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, or his representative, agent, or heirs, or assigns from any source, if the merchandise meets all cemetery regulations.
(3) A cemetery company may assess, at the time of installation of a marker or monument, a reasonable fee to cover actual labor costs involved in the installation, care, and maintenance of the marker or monument. Labor costs means the amount, calculated in accordance with generally accepted accounting principles and practices, payable to employees of the cemetery company for wages and fringe benefits for the time the employees were engaged in installation, care, and maintenance services and may include general administrative or overhead costs of the cemetery company that are related directly to care and maintenance of the marker or monument. A cemetery company must be prepared to justify to the board that the fee charged does not exceed the cemetery company's actual labor costs.
(4) All Regulations established, amended, or abolished by a cemetery pursuant to this subsection must be submitted to the board for its approval pursuant to the Administrative Procedures Act."
SECTION 5. Section 39-55-185 of the 1976 Code is amended to read:
"Section 39-55-185. (A) Any A 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 immediately 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 the 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 maintain a copy of the contract for the merchandise. Nothing contained herein prohibits This section does not prohibit the trustee from commingling the deposits in any a trust fund of this kind for purposes of the management to manage and investment of invest the funds.
(B) When any a memorial, a mausoleum crypt, or other merchandise is sold in advance of need and not installed until a later date, one hundred percent of the actual cost to the seller at the time of deposit must be placed in a trust institution within sixty days after completion of the contract, with interest to accrue, and may must 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 fully 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 may 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 After payment in full and prior to before 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 the 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, shall file a financial report, signed by a licensed accountant, 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 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 the office of the board. Any A person or an entity being examined shall produce the records of the company needed for the examination.
(G) Any A provision of any a 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 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 A 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 a report is not received within the required time stipulated herein, the board may levy and collect a penalty of twenty-five dollars per a day for each day of delinquency."
SECTION 6. In accordance with Section 1-20-60 of the 1976 Code, the existence of the South Carolina Cemetery Board is reauthorized for five years.
SECTION 7. This act takes effect upon approval by the Governor.