| HB 1609 - Cemetery and Funeral Services Act of 2000; new chapter |
First Reader Summary
A BILL to amend Title 10 of the Official Code of Georgia
Annotated, relating to commerce, so as to insert the "Georgia
Cemetery and Funeral Services Act of 2000"; to amend extensively
the "Georgia Cemetery Act of 1983"; and for other purposes.
| House |
Action |
Senate |
| 2/25/00 |
Read 1st Time |
3/7/00 |
| 2/28/00 |
Read 2nd Time |
|
| 3/1/00 |
Favorably Reported |
|
| Sub |
Committee Amend/Sub |
|
| 3/6/00 |
Read 3rd Time |
|
| 3/6/00 |
Passed/Adopted |
|
| CS |
Comm/Floor Amend/Sub |
|
HB 1609 LC 27 1185S
______________________________ offers the following
substitute to HB 1609:
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Title 10 of the Official Code of Georgia Annotated,
1- 2 relating to commerce, so as to insert the "Georgia Cemetery
1- 3 and Funeral Services Act of 2000"; to amend extensively the
1- 4 "Georgia Cemetery Act of 1983"; to revise and provide
1- 5 additional definitions; to change provisions relating to
1- 6 registration of owners of cemeteries; to provide for
1- 7 registration of burial or funeral merchandise dealers and
1- 8 preneed dealers; to provide for applications for
1- 9 registration and their form, contents, verification, and
1-10 filing fees; to provide for notice that land designated as a
1-11 cemetery shall not be conveyed or encumbered without prior
1-12 approval; to provide for duties of the Secretary of State
1-13 regarding applications for registration; to provide for
1-14 exemptions and exceptions; to change provisions relating to
1-15 trust funds for perpetual care; to change provisions
1-16 relating to investment of assets of such funds and income
1-17 from such funds; to provide for joint and several liability
1-18 for deficiencies in such trust funds in certain
1-19 circumstances; to change provisions relating to escrow
1-20 accounts for burial and funeral merchandise and preneed
1-21 sales; to provide for deposits into such accounts upon
1-22 shortfall; to provide for joint and several liability for
1-23 deficiencies in such escrow accounts in certain
1-24 circumstances; to regulate preneed sales agents; to provide
1-25 for registration of preneed sales agents; to provide for
1-26 qualifications and affiliations of preneed sales agents; to
1-27 provide for a registration application and its contents,
1-28 form, and filing fee; to provide for renewal of
1-29 registration; to change provisions relating to prohibiting a
1-30 person from employment with a cemetery or preneed dealer; to
1-31 delete a fee for intent to transfer of ownership of a
1-32 cemetery; to change provisions relating to the minimum size
1-33 for a cemetery; to change provisions relating to denying,
1-34 suspending, or revoking a registration of a cemetery owner;
1-35 to change provisions relating to penalties for late filing
1-36 of an application for renewal registration; to change
1-37 provisions relating to reports concerning perpetual care
-1-
2- 1 trust funds and preneed escrow accounts; to change
2- 2 provisions relating to rules and regulations of the
2- 3 Secretary of State; to change provisions relating to audit
2- 4 expenses; to provide for copies of rules and regulations of
2- 5 cemeteries; to change provisions prohibiting certain actions
2- 6 by persons selling preneed merchandise, burial rights, and
2- 7 burial or funeral merchandise; to prohibit certain actions
2- 8 of cemetery owners relating to the sale or installation of a
2- 9 monument; to prohibit certain fees; to require compliance
2-10 with "The Georgia Retail Installment and Home Solicitation
2-11 Sales Act" for certain installment sales; to provide for
2-12 transfer of contract rights for purchasers of preneed
2-13 merchandise; to require registrants who sell burial rights,
2-14 merchandise, or services to provide certain information and
2-15 disclosures to customers and provide an approved written
2-16 contract with specified provisions; to change provisions
2-17 relating to certain penalties; to provide for the recovery
2-18 of interest and attorney's fees in certain actions; to
2-19 regulate preconstruction or predevelopment sale of burial
2-20 rights; to provide for refunds in certain circumstances; to
2-21 provide for preconstruction trust funds; to provide for
2-22 completion of mausoleum sections or columbaria by the
2-23 trustee in certain circumstances; to provide for an annual
2-24 statement of trust funds' activity; to provide for minimum
2-25 standards for interment; to amend Code Section 33-8-1 of the
2-26 Official Code of Georgia, relating to fees and taxes paid to
2-27 the Commissioner of Insurance, so as to delete a fee paid
2-28 for certificate of authority to operate as a preneed funeral
2-29 service company; to amend Chapter 18 of Title 43 of the
2-30 Official Code of Georgia Annotated, relating to funeral
2-31 directors and embalmers, so as to repeal provisions relating
2-32 to contracts for preneed funeral services; to amend Chapter
2-33 3 of Title 44 of the Official Code of Georgia Annotated,
2-34 relating to regulation of specialized land transactions, so
2-35 as to move provisions relating to cemeteries to Title 10; to
2-36 amend Chapter 12 of Title 44 of the Official Code of Georgia
2-37 Annotated, relating to rights in personalty, so as to change
2-38 a cross-reference in compliance with other changes in this
2-39 Act; to repeal conflicting laws; and for other purposes.
2-40 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
2-41 SECTION 1.
2-42 Title 10 of the Official Code of Georgia Annotated, relating
2-43 to commerce, is amended by inserting a new chapter to be
2-44 designated Chapter 14 to read as follows:
-2-
3- 1 44-3-130 10-14-1.
3- 2 This article shall be known as and may be cited as the
3- 3 'Georgia Cemetery and Funeral Services Act of 1983 2000.'
3- 4 10-14-2.
3- 5 (a) The legislature recognizes that purchasers of preneed
3- 6 burial rights, funeral or burial merchandise, or funeral
3- 7 services or burial services may suffer serious economic
3- 8 harm if purchase money is not set aside for future use as
3- 9 intended by the purchaser and that the failure to maintain
3-10 cemetery grounds properly may cause significant emotional
3-11 distress. Therefore, it is necessary in the interest of
3-12 the public welfare to regulate preneed dealers, licensees,
3-13 registrants, and cemetery companies in this state.
3-14 However, restrictions shall be imposed only to the extent
3-15 necessary to protect the public from significant or
3-16 discernible harm or damage and not in a manner which will
3-17 unreasonably affect the competitive market.
3-18 (b) Subject to certain interests of society, the
3-19 legislature finds that every competent adult has the right
3-20 to control the decisions relating to his or her own
3-21 funeral arrangements. Accordingly, unless otherwise
3-22 stated in this chapter, it is the legislature's express
3-23 intent that nothing contained in this chapter should be
3-24 construed or interpreted in any manner as to subject
3-25 preneed contract purchasers to federal income taxation
3-26 under the grantor trust rules contained in Sections 671 et
3-27 seq. of the Internal Revenue Code of 1986, as amended.
3-28 (c) Nothing herein is intended to prohibit or restrict the
3-29 sale or purchase of life insurance as a funding vehicle
3-30 for preneed contracts under this chapter, nor to change
3-31 the state of the law prior to July 1, 2000, with respect
3-32 to prohibiting or restricting the sale or purchase of life
3-33 insurance as a funding vehicle for preneed contracts under
3-34 this chapter.
3-35 44-3-131 10-14-3.
3-36 As used in this article chapter, the term:
3-37 (1) 'Affiliate' means a person who directly or
3-38 indirectly owns or controls, is owned or controlled by,
3-39 or is under common ownership or control with another
3-40 person. Solely for purposes of this definition, the
-3-
4- 1 terms 'owns,' 'is owned,' and 'ownership' mean ownership
4- 2 of an equity interest, or the equivalent thereof, of 10
4- 3 percent or more, and the term 'person' means an
4- 4 individual, partnership, committee, association,
4- 5 corporation, or any other organization or group of
4- 6 persons.
4- 7 (2) 'Board' means the State Board of Funeral Service as
4- 8 described and authorized in Chapter 18 of Title 43.
4- 9 (1)(3) 'Burial merchandise,' 'funeral merchandise,' or
4-10 'merchandise' means any merchandise normally offered or
4-11 sold by a cemetery company or preneed dealer personal
4-12 property offered or sold by any person for use in
4-13 connection with the final disposition, memorialization,
4-14 interment, entombment, or inurnment of human remains.
4-15 This includes, but is not limited to, subterranean
4-16 crypts, mausoleums, markers and monuments, whether
4-17 bronze or otherwise, bronze plaques and vases, mausoleum
4-18 spaces to be constructed, cemetery spaces to be
4-19 developed, and vaults, and also includes foundations or
4-20 footings of any type.
4-21 (2)(4) 'Burial right' means the right to use a grave
4-22 space, mausoleum, or columbarium for the interment,
4-23 entombment, or inurnment of human remains.
4-24 (3)(5) 'Burial service' or 'service' means any service
4-25 other than a funeral service offered or provided by a
4-26 cemetery company or preneed dealer by any person in
4-27 connection with the final disposition, memorialization,
4-28 interment, entombment, or inurnment of human remains as
4-29 described in paragraph (1) of this Code section remains.
4-30 (6) 'Care and maintenance' means the perpetual process
4-31 of keeping a cemetery and its lots, graves, grounds,
4-32 landscaping, roads, paths, parking lots, fences,
4-33 mausoleums, columbaria, vaults, crypts, utilities, and
4-34 other improvements, structures, and embellishments in a
4-35 well cared for and dignified condition, so that the
4-36 cemetery does not become a nuisance or place of reproach
4-37 and desolation in the community. As specified in the
4-38 rules of the Secretary of State, care and maintenance
4-39 may include, but is not limited to, any or all of the
4-40 following activities: mowing the grass at reasonable
4-41 intervals; raking and cleaning the grave spaces and
4-42 adjacent areas; pruning of shrubs and trees; suppression
4-43 of weeds and exotic flora; and maintenance, upkeep, and
-4-
5- 1 repair of drains, water lines, roads, buildings, and
5- 2 other improvements. Care and maintenance may include,
5- 3 but is not limited to, reasonable overhead expenses
5- 4 necessary for such purposes, including maintenance of
5- 5 machinery, tools, and equipment used for such purposes.
5- 6 Care and maintenance may also include repair or
5- 7 restoration of improvements necessary or desirable as a
5- 8 result of wear, deterioration, accident, damage, or
5- 9 destruction. Care and maintenance does not include
5-10 expenses for the construction and development of new
5-11 grave spaces or interment structures to be sold to the
5-12 public.
5-13 (7) 'Casket' means a container which is designed for the
5-14 encasement and viewing of a dead human body.
5-15 (4)(8) 'Cemetery' or 'cemeteries' means any land or
5-16 structure in this state a place dedicated to and used,
5-17 or intended to be used, for permanent interment of human
5-18 remains. It may be either a burial park for A cemetery
5-19 may contain land or earth interments,; or a mausoleum,
5-20 for a vault, or crypt interments,; a columbarium or
5-21 other structure or place used or intended to be used for
5-22 the inurnment of cremated human remains; or a or any
5-23 combination of one or more of such structures or places
5-24 thereof. Such terms term shall not include
5-25 governmentally owned cemeteries, fraternal cemeteries,
5-26 church and synagogue cemeteries, cemeteries owned and
5-27 operated by churches or synagogues or family burial
5-28 plots.
5-29 (5)(9) 'Cemetery company' means an individual,
5-30 partnership, corporation, or association now or
5-31 hereafter organized, owning or controlling any entity
5-32 that owns or controls cemetery lands or property and
5-33 conducting the business of a cemetery or making an
5-34 application with the Secretary of State to own or
5-35 control such lands or conduct such business.
5-36 (10) 'Columbarium' means a structure or building which
5-37 is substantially exposed above the ground and which is
5-38 intended to be used for the inurnment of cremated human
5-39 remains.
5-40 (11) 'Common business enterprise' means a group of two
5-41 or more business entities that share common ownership in
5-42 excess of 50 percent.
-5-
6- 1 (12) 'Cremation' includes any mechanical or thermal
6- 2 process whereby a deceased human being is reduced to
6- 3 ashes. Cremation also includes any other mechanical or
6- 4 thermal process whereby human remains are pulverized,
6- 5 burned, recremated, or otherwise further reduced in size
6- 6 or quantity.
6- 7 (6)(13) 'Crypt' means a chamber of sufficient size to
6- 8 inter the remains of a deceased person human being.
6- 9 (14) 'Entombment' mean the disposition of a dead human
6-10 body in a mausoleum.
6-11 (15) 'Final disposition' means the final disposal of a
6-12 deceased human being whether by interment, entombment,
6-13 inurnment, burial at sea, cremation, or any other means
6-14 and includes, but is not limited to, any other
6-15 disposition of remains for which a segregated charge is
6-16 imposed.
6-17 (16) 'Funeral director' means any person licensed in
6-18 this state to practice funeral directing pursuant to the
6-19 provisions of Chapter 18 of Title 43.
6-20 (17) 'Funeral service' means any service relating to the
6-21 transportation, embalming, and interment of a deceased
6-22 human being, as further described in paragraphs (10),
6-23 (18), and (19) of Code Section 43-18-1.
6-24 (18) 'Grave space' or 'lot' means a space of ground in a
6-25 cemetery intended to be used for the interment in the
6-26 ground of human remains.
6-27 (7)(19) 'Human remains' means the bodies of deceased
6-28 human beings and includes the bodies in any stage of
6-29 decomposition and the cremated remains.
6-30 (8)(20) 'Interment' or 'entombment' means any lawful
6-31 disposition of the remains of the deceased human being
6-32 as provided by law the burial of human remains.
6-33 (9) 'Lot' or 'grave space' means a space of ground in a
6-34 cemetery intended to be used for the interment in the
6-35 ground of human remains.
6-36 (21) 'Inurnment' means the disposition of the cremated
6-37 remains of a deceased human being in an urn or other
6-38 container.
6-39 (10)(22) 'Mausoleum' means a structure or building which
6-40 is substantially exposed above the ground and which is
-6-
7- 1 used, or intended to be used, for the interment
7- 2 entombment of human remains in crypts or niches.
7- 3 (23) 'Mausoleum section' means any construction unit of
7- 4 a mausoleum which is acceptable to the Secretary of
7- 5 State and which a cemetery uses to initiate its
7- 6 mausoleum program or to add to its existing mausoleum
7- 7 structures.
7- 8 (24) 'Monument' means any product used for identifying
7- 9 or permanently decorating a grave site, including,
7-10 without limitation, monuments, markers, benches, and
7-11 vases and any base or foundation on which they rest or
7-12 are mounted.
7-13 (11)(25) 'Niche' means a space used, or intended to be
7-14 used, for the interment of the cremated remains of one
7-15 or more deceased human beings.
7-16 (12)(26) 'Nonperpetual care' means any cemetery which
7-17 does not offer perpetual care as defined in this Code
7-18 section.
7-19 (27) 'Outer burial container' or 'vault' means an
7-20 enclosure into which a casket is placed and includes,
7-21 but is not limited to, containers made of concrete,
7-22 steel, fiberglass, copper or other metals, sectional
7-23 concrete enclosures, crypts, and wooden enclosures.
7-24 (13)(28) 'Perpetual care' means the care and maintenance
7-25 and the reasonable administration of the cemetery
7-26 grounds and buildings in keeping with a properly
7-27 maintained cemetery at the present time and in the
7-28 future. In the event that a cemetery offers perpetual
7-29 care for some designated sections of its property but
7-30 does not offer perpetual care to other designated
7-31 sections, the cemetery shall be considered a perpetual
7-32 care cemetery for the purposes of this article.
7-33 (14)(29) 'Person' or 'entity' means an individual, a
7-34 corporation, a limited liability company, a general or
7-35 limited partnership, an association, a joint-stock
7-36 company, a trust, or any type of incorporated or
7-37 unincorporated organization.
7-38 (30) 'Preneed contract' means any arrangement or method,
7-39 of which the provider of burial or funeral merchandise
7-40 or services has actual knowledge, whereby any person
7-41 agrees to furnish burial or funeral merchandise or
7-42 services in the future.
-7-
8- 1 (15)(31) 'Preneed dealer' means every person, other than
8- 2 a salesperson registered under this article chapter, who
8- 3 engages, either for all or part of his or her time,
8- 4 directly or indirectly, as agent, broker, or principal
8- 5 in the retail business of offering, selling, or
8- 6 otherwise dealing in funeral services or burial services
8- 7 or funeral or burial merchandise, as defined in this
8- 8 article, which is not attached to realty or delivered to
8- 9 the purchaser at the time of sale but does not include
8-10 any establishment offering and selling burial
8-11 merchandise subject to the jurisdiction of the
8-12 Commissioner of Insurance pursuant to Chapter 18 of
8-13 Title 43.
8-14 (16)(32) 'Preneed interment service' or 'preneed
8-15 service' means any service which is not performed at the
8-16 time of sale and which is offered or provided by a
8-17 cemetery or preneed dealer any person in connection with
8-18 the interment of human remains, except those services
8-19 offered regarding mausoleums and the normal and
8-20 customary installation charges on burial or funeral
8-21 merchandise.
8-22 (17)(33) 'Sale' or 'sell' means and shall include every
8-23 contract of sale or disposition of cemetery property,
8-24 burial right rights, burial lot grave spaces, burial
8-25 services, funeral services, or burial or funeral
8-26 merchandise for value. The term 'offer to sell,' 'offer
8-27 for sale,' or 'offer' shall include any attempt or offer
8-28 to dispose of, or solicitation of an offer to buy,
8-29 cemetery property, burial lots grave spaces, burial
8-30 rights, burial or funeral services, or burial or funeral
8-31 merchandise for value. This definition shall not include
8-32 wholesalers of burial or funeral merchandise.
8-33 (18)(34) 'Salesperson' or 'sales agent' means an
8-34 individual employed or appointed or authorized by a
8-35 cemetery, cemetery company, or preneed dealer to sell
8-36 cemetery property, burial lots grave spaces, burial
8-37 rights, burial or funeral merchandise, burial or funeral
8-38 services, or any other right or thing of value in
8-39 connection with the interment final disposition of human
8-40 remains. The owner of a cemetery, the executive
8-41 officers, and general partners of a cemetery company
8-42 shall not be deemed to be salespersons within the
8-43 meaning of this definition unless they are paid a
8-44 commission for the sale of said property, lots, rights,
-8-
9- 1 burial or funeral merchandise, or burial or funeral
9- 2 services.
9- 3 (19)(35) 'Secretary of State' means the Secretary of
9- 4 State of the State of Georgia.
9- 5 (36) 'Solicitation' means any communication in the
9- 6 context of an offer or sale of grave spaces, burial or
9- 7 funeral merchandise, or burial or funeral services which
9- 8 directly or implicitly requests a response from the
9- 9 recipient. (20) 'Subterranean crypts' means interment space in
9-11 preplaced chambers, either side by side or multiple
9-12 depth, covered by earth and sod. These are also known as
9-13 westminsters or turf-top crypts. (21) 'Wholesale cost' means the cost to the cemetery or
9-15 preneed dealer of burial merchandise as of the date of
9-16 the most recent preneed escrow account quarterly report
9-17 filed pursuant to subsection (e) of Code Section
9-18 44-3-134.
9-19 44-3-134. 10-14-4.
9-20 (a)(1) It Unless exempt under this chapter, it shall be
9-21 unlawful for any person to offer for sale or to sell any
9-22 cemetery burial rights, burial services, or burial
9-23 merchandise to any purchaser in this state unless: (1) The related cemetery or preneed dealer is registered
9-25 pursuant to this Code section; or (2) Such related cemetery or preneed dealer is exempt
9-27 from the provisions of this article. The owner of each cemetery and preneed dealer shall
9-29 apply for and obtain a certificate or registration from
9-30 the Secretary of State; and it shall be unlawful to sell
9-31 any burial lots, rights, burial services, or burial
9-32 merchandise without obtaining and maintaining a valid
9-33 certificate mausoleum interment rights, columbarium
9-34 inurnment rights, grave spaces, or other physical
9-35 locations for the final disposition of human remains in
9-36 this state unless such person is registered as a
9-37 cemetery owner pursuant to this Code section.
9-38 (2) Unless exempt under this chapter, it shall be
9-39 unlawful for any person to offer for sale or sell burial
9-40 or funeral merchandise or burial services in this state
9-41 unless such person is registered as a cemetery owner
-9-
10- 1 under this Code section, a funeral director under
10- 2 Chapter 18 of Title 43, or a burial or funeral
10- 3 merchandise dealer under this Code section.
10- 4 (3) Unless exempt under this chapter, it shall be
10- 5 unlawful for any person to offer for sale or to sell any
10- 6 preneed burial or funeral merchandise or preneed burial
10- 7 services in this state unless such person is registered
10- 8 as a preneed dealer or preneed sales agent pursuant to
10- 9 this Code section.
10-10 (4) It shall be unlawful for any person to offer for
10-11 sale or to sell any funeral services in this state
10-12 unless such person is licensed as a funeral director
10-13 under the provisions of Chapter 18 of Title 43.
10-14 (b)(1) Every registration statement filed under this
10-15 Code section shall be made in writing person desiring to
10-16 be a registered cemetery owner shall file with the
10-17 Secretary of State a separate registration application
10-18 for each cemetery owned in a form prescribed by the
10-19 Secretary of State, shall be executed and duly verified
10-20 under oath by the applicant, shall be duly verified
10-21 under oath, shall be filed in the office of the
10-22 Secretary of State, and shall contain if the applicant
10-23 is an individual, or by an executive officer or general
10-24 partner, if the applicant is a corporation or
10-25 partnership, or by an individual of similar authority,
10-26 if the applicant is some other entity, and containing
10-27 the following information:
10-28 (A) The name, mailing address, and telephone number of
10-29 the applicant, which for the purposes of this Code
10-30 section shall be the legal owner of the land upon
10-31 which the cemetery is located;
10-32 (B) The location, and, if different from the
10-33 information submitted for subparagraph (A) of this
10-34 paragraph, the mailing address, and telephone number
10-35 of the applicant cemetery;
10-36 (C) The location of the all records of the applicant
10-37 which relate to the cemetery;
10-38 (D) The owner of If the applicant, including the
10-39 owner's name, address, telephone number, and date the
10-40 present owner took control of the cemetery; if the
10-41 owner is a corporation is not a natural person, the
10-42 names of the president, secretary, and registered
-10-
11- 1 agent of the if the applicant is a corporation, of
11- 2 each general partner if the applicant is a
11- 3 partnership, or of individuals of similar authority if
11- 4 the applicant is some other entity and their
11- 5 respective addresses and telephone numbers; the owner
11- 6 of controlling interest and the percentage of his
11- 7 interest; the name and address of each person who owns
11- 8 10 percent or more of any class of ownership interest
11- 9 in the applicant and the percentage of such interest;
11-10 and the date of formation and the jurisdiction of
11-11 organization of the applicant;
11-12 (E) A copy of the articles of incorporation, bylaws,
11-13 cemetery rules and regulations, a certified copy of a
11-14 certificate of existence or certificate of authority
11-15 issued in accordance with Code Section 14-2-128 if the
11-16 applicant is a corporation, and any amendments of the
11-17 owner company to such documents or any substantially
11-18 equivalent documents. Any such document once filed
11-19 with the Secretary of State pursuant to this article
11-20 chapter shall be deemed to be on file and incorporated
11-21 into any subsequent renewal or filing of such cemetery
11-22 registration; provided, however, that each applicant
11-23 and registrant is under a continuing duty to update
11-24 such filing and to notify the Secretary of State
11-25 regarding any changes or amendments to the articles of
11-26 incorporation, bylaws, cemetery rules and regulations,
11-27 or substantially equivalent documents, and provided,
11-28 further, that any applicant or registrant shall
11-29 furnish to the Secretary of State additional copies of
11-30 any such document upon request;
11-31 (F) A description of any judgment of or pending
11-32 litigation to which the applicant or the cemetery, its
11-33 individual owner, corporate owner, or person who owns
11-34 controlling interest of the owner any affiliate of the
11-35 applicant is a party and which involves the operation
11-36 of the cemetery or could materially affect its the
11-37 business or assets of the applicant;
11-38 (G) Whether the owner of the applicant or any
11-39 affiliate of the applicant owns any other entities in
11-40 Georgia regulated by this article chapter and, if so,
11-41 their the location, mailing address, telephone number,
11-42 and type of registration of such other entities;
-11-
12- 1 (H) A consent to service of process meeting the
12- 2 requirements of Code Section 44-3-148 10-14-24 for
12- 3 actions brought by the State of Georgia;
12- 4 (I) A list The name and business address of each
12- 5 individual employed, appointed, or authorized by the
12- 6 applicant to offer for sale or to sell any burial
12- 7 grave lots, burial rights, burial or funeral
12- 8 merchandise, or burial services on behalf of the
12- 9 cemetery applicant. Such list shall contain the
12-10 information required by the provisions of Code Section
12-11 44-3-132;
12-12 (J) A balance sheet of the applicant cemetery dated as
12-13 of the end of the most recent fiscal year and in no
12-14 event dated more than 15 months from prior to the date
12-15 of filing, which the Secretary of State shall treat as
12-16 confidential and not open to public inspection; and
12-17 (K) Such other reliable and other necessary
12-18 information as the Secretary of State may require by
12-19 rule or regulation promulgated pursuant to Chapter 13
12-20 of Title 50, the 'Georgia Administrative Procedure
12-21 Act.' Evidence satisfactory to the Secretary of State
12-22 that the applicant owns for the cemetery unencumbered
12-23 fee simple title to contiguous land in the minimum
12-24 acreage required by this chapter or by rules issued by
12-25 the Secretary of State in accordance with this
12-26 chapter, properly zoned for use as a cemetery, and
12-27 dedicated for such use, and a copy of a plat of survey
12-28 thereto;
12-29 (L) Evidence satisfactory to the Secretary of State
12-30 that the applicant has recorded, in the public land
12-31 records of the county in which the land described in
12-32 subparagraph (K) of this paragraph is located, a
12-33 notice that contains the following language:
12-34 The property described herein shall not be sold,
12-35 conveyed, leased, mortgaged, or encumbered without
12-36 the prior written approval of the Secretary of
12-37 State, as provided in the Georgia Cemetery and
12-38 Funeral Services Act of 2000.
12-39 Such notice shall have been clearly printed in
12-40 boldface type of not less than ten points and may be
12-41 included on the face of the deed of conveyance to the
-12-
13- 1 applicant or may be contained in a separate recorded
13- 2 instrument that contains a legal description of the
13- 3 property.
13- 4 (M) The name, address, location, and telephone number
13- 5 of the perpetual care trust account depository or
13- 6 depositories, the names of the accounts, and the
13- 7 account numbers;
13- 8 (N) The name, address, and telephone number of each
13- 9 trustee;
13-10 (O) A copy of a perpetual care trust fund agreement
13-11 executed by the applicant and accepted by the trustee,
13-12 and evidence satisfactory to the Secretary of State of
13-13 the deposit into such account of the amount of the
13-14 initial required deposit, the trust agreement being
13-15 conditioned only upon issuance of a certificate of
13-16 registration;
13-17 (P) Such other information and documents as the
13-18 Secretary of State may require by rule; and
13-19 (Q) A filing fee of $100.00. (2) A registration statement under this Code section
13-21 shall become effective upon the issuing of a certificate
13-22 of registration by the Secretary of State or at such
13-23 earlier time as the Secretary of State determines.
13-24 (2) Every person desiring to be a registered preneed
13-25 dealer shall file with the Secretary of State a
13-26 registration application in a form prescribed by the
13-27 Secretary of State, executed and duly verified under
13-28 oath by the applicant, if the applicant is an
13-29 individual, or by an executive officer or general
13-30 partner, if the applicant is a corporation or
13-31 partnership, or by an individual of similar authority,
13-32 if the applicant is some other entity, and containing
13-33 the following information:
13-34 (A) The name of the applicant;
13-35 (B) The location, mailing address, and telephone
13-36 number of the applicant's principal business location
13-37 in Georgia and the same information for other
13-38 locations where business is conducted, together with
13-39 any trade names associated with each location;
13-40 (C) All locations of the records of the applicant
13-41 which relate to preneed sales in Georgia;
-13-
14- 1 (D) If the applicant is not a natural person, the
14- 2 names of the president, secretary, and registered
14- 3 agent if the applicant is a corporation, of each
14- 4 general partner if the applicant is a partnership, or
14- 5 of individuals of similar authority, if the applicant
14- 6 is some other entity and their respective addresses
14- 7 and telephone numbers; the name and address of each
14- 8 person who owns 10 percent or more of any class of
14- 9 ownership interest in the applicant and the percentage
14-10 of such interest; and the date of formation and the
14-11 jurisdiction of organization of the applicant;
14-12 (E) A certified copy of a certificate of existence or
14-13 certificate of authority issued in accordance with
14-14 Code Section 14-2-128 if the applicant is a
14-15 corporation;
14-16 (F) A description of any judgment or pending
14-17 litigation to which the applicant or any affiliate of
14-18 the applicant is a party and which involves the
14-19 operation of the applicant's preneed business in
14-20 Georgia or which could materially affect the business
14-21 or assets of the applicant;
14-22 (G) Whether the applicant or any affiliate of the
14-23 applicant owns any other entities in Georgia regulated
14-24 by this chapter and, if so, the location, mailing
14-25 address, telephone number, and type of registration of
14-26 such other entities;
14-27 (H) A consent to service of process meeting the
14-28 requirements of Code Section 10-14-24 for actions
14-29 brought by the State of Georgia;
14-30 (I) A list of each individual employed, appointed, or
14-31 authorized by the applicant to offer for sale or to
14-32 sell any grave lots, burial rights, burial or funeral
14-33 merchandise, or burial services on behalf of the
14-34 applicant;
14-35 (J) A balance sheet of the applicant dated as of the
14-36 end of the most recent fiscal year and in no event
14-37 dated more than 15 months prior to the date of filing,
14-38 which the Secretary of State shall treat as
14-39 confidential and not open to public inspection;
14-40 (K) The name, address, location, and telephone number
14-41 of the preneed escrow account depository or
-14-
15- 1 depositories, the names of the accounts, and the
15- 2 account numbers;
15- 3 (L) An executed copy of the escrow agreement required
15- 4 by Code Section 10-14-7;
15- 5 (M) The name, address, and telephone number of the
15- 6 escrow agent;
15- 7 (N) Such other information and documents as the
15- 8 Secretary of State may require by rule; and
15- 9 (O) A filing fee of $250.00.
15-10 (3) Every person desiring to be a registered burial or
15-11 funeral merchandise dealer shall file with the Secretary
15-12 of State a registration application in a form prescribed
15-13 by the Secretary of State, executed and duly verified
15-14 under oath by the applicant, if an individual, or by an
15-15 executive officer or general partner, if the applicant
15-16 is a corporation or partnership, or by an individual of
15-17 similar authority, if the applicant is some other
15-18 entity, and containing the following information:
15-19 (A) The name of the applicant;
15-20 (B) The location, mailing address, and telephone
15-21 number of the applicant's principal business location
15-22 in Georgia and the same information for other
15-23 locations where business is conducted, together with
15-24 any trade names associated with each location;
15-25 (C) All locations of the records of the applicant
15-26 which relate to funeral or burial merchandise sales in
15-27 Georgia;
15-28 (D) If the applicant is not a natural person, the
15-29 names of the president, secretary, and registered
15-30 agent if the applicant is a corporation, of each
15-31 general partner if the applicant is a partnership, or
15-32 of individuals of similar authority if the applicant
15-33 is some other entity and their respective addresses
15-34 and telephone numbers; the name and address of each
15-35 person who owns 10 percent or more of any class of
15-36 ownership interest in the applicant and the percentage
15-37 of such interest; and the date of formation and the
15-38 jurisdiction of organization of the applicant;
15-39 (E) A certified copy of a certificate of existence or
15-40 certificate of authority issued in accordance with
-15-
16- 1 Code Section 14-2-128 if the applicant is a
16- 2 corporation;
16- 3 (F) A description of any judgment or pending
16- 4 litigation to which the applicant or any affiliate of
16- 5 the applicant is a party and which involves the
16- 6 operation of the applicant's funeral or burial
16- 7 merchandise business in Georgia or which could
16- 8 materially affect the business or assets of the
16- 9 applicant;
16-10 (G) Whether the applicant or any affiliate of the
16-11 applicant owns any other entities in Georgia regulated
16-12 by this chapter and, if so, the location, mailing
16-13 address, telephone number, and type of registration of
16-14 such other entities;
16-15 (H) A consent to service of process meeting the
16-16 requirements of Code Section 10-14-24 for actions
16-17 brought by the State of Georgia;
16-18 (I) The name and business address of each individual
16-19 employed, appointed, or authorized by the applicant to
16-20 offer for sale or to sell any burial or funeral
16-21 merchandise on behalf of the applicant;
16-22 (J) A balance sheet of the applicant dated as of the
16-23 end of the most recent fiscal year and in no event
16-24 dated more than 15 months prior to the date of filing,
16-25 which the Secretary of State shall treat as
16-26 confidential and not open to public inspection;
16-27 (K) Such other information and documents as the
16-28 Secretary of State may require by rule;
16-29 (L) A filing fee of $100.00; and
16-30 (M) A bond, if required by the rules and regulations
16-31 of the Secretary of State.
16-32 (c) The Secretary of State may approve an application only
16-33 after he or she has conducted an investigation of the
16-34 applicant and determined that such applicant is qualified
16-35 by character, experience, and financial responsibility to
16-36 conduct the business for which the applicant is seeking
16-37 registration in a legal and proper manner. A registration
16-38 application filed under this Code section shall become
16-39 effective upon the issuing of a certificate of
16-40 registration by the Secretary of State or at such earlier
16-41 time as the Secretary of State determines.
-16-
17- 1 (5)(d) Every registration under this subsection shall
17- 2 expire on the first day of August of each year. The
17- 3 registration must be renewed with the Secretary of State
17- 4 each year by the submission of a renewal application
17- 5 containing the information required in an application for
17- 6 initial registration to the extent that such information
17- 7 had not been included in an application or renewal
17- 8 application previously filed together with a sworn
17- 9 statement that all information not provided remains
17-10 accurate. The filing fee for renewal of registration
17-11 shall be one-half the filing fee for such application
17-12 $50.00 for each cemetery of cemetery owners, $100.00 for
17-13 preneed dealers, and $50.00 for burial or funeral
17-14 merchandise dealers.
17-15 (e) The Secretary of State, by rule, may provide for
17-16 exceptions from registration for cemeteries when the
17-17 Secretary of State determines that the public interest
17-18 does not require registration, provided that such
17-19 cemeteries are in existence on or before July 1, 2000,
17-20 consist of less than 25 acres, and are operated by
17-21 nonprofit entities.
17-22 (f) Notwithstanding any provision to the contrary
17-23 contained in this Code section, the following shall be
17-24 exempt from registration as a burial or funeral
17-25 merchandise dealer:
17-26 (1) Any registered cemetery owner;
17-27 (2) The owner of any cemetery exempt from registration
17-28 with respect to sales of burial or funeral merchandise
17-29 sold for use at such cemetery;
17-30 (3) Any licensed funeral director;
17-31 (4) Any person providing interment and disinterment
17-32 services exclusively at cemeteries exempt from
17-33 registration;
17-34 (5) Any monument manufacturer or dealer which does not
17-35 install monuments in cemeteries required to be
17-36 registered by this Code section;
17-37 (6) Any person who does not offer for sale or sell
17-38 burial or funeral services or merchandise to the general
17-39 public; and
17-40 (7) Any registered preneed dealer.
-17-
18- 1 In addition, the Secretary of State, by rule, may provide
18- 2 for other exceptions from registration.
18- 3 (d)(g)(1) In the event that a Any cemetery in operation
18- 4 on August 1, 1986 which offers perpetual care for some
18- 5 designated sections of its property but does not offer
18- 6 perpetual care to other designated sections, the
18- 7 cemetery shall be considered a perpetual care cemetery
18- 8 for purposes of this article chapter. No cemetery
18- 9 formed or created on or after July 1, 2000, may fail to
18-10 offer perpetual care for any part of such cemetery.
18-11 (2) Any nonperpetual care cemetery which was registered
18-12 with the Secretary of State prior to August 1, 1986, may
18-13 continue to be operated as such after that date and a
18-14 renewal of such registration shall not be required.
18-15 (3) Any nonperpetual care cemetery which is shown to be
18-16 of historical significance and is operated solely for
18-17 historical nonprofit purposes shall be exempt from
18-18 registration.
18-19 (4) Except as specifically authorized under paragraphs
18-20 (2) and (3) of this subsection, from and after August 1,
18-21 1986, it shall be unlawful for any person to operate or
18-22 establish a nonperpetual care cemetery.
18-23 10-14-5.
18-24 (a) All individuals who offer preneed contracts to the
18-25 public, or who execute preneed contracts on behalf of any
18-26 entity required to be registered as a preneed dealer, and
18-27 all individuals who offer, sell, or sign contracts for the
18-28 preneed sale of burial rights shall be registered with the
18-29 Secretary of State as preneed sales agents, pursuant to
18-30 this Code section, unless such individuals are exempted
18-31 under this chapter or individually own a controlling
18-32 interest in a preneed dealer registered under this
18-33 chapter.
18-34 (b) All preneed sales agents must be employed by a
18-35 registered preneed dealer.
18-36 (c) A preneed dealer shall be liable for the activities of
18-37 all preneed sales agents who are employed by the preneed
18-38 dealer or who perform any type of preneed related activity
18-39 on behalf of the preneed dealer. If a preneed sales agent
18-40 violates any provision of this chapter, such preneed sales
18-41 agent and each preneed dealer who employs such preneed
18-42 sales agent shall be subject to the penalties and remedies
-18-
19- 1 set out in Code Sections 10-14-11, 10-14-19, 10-14-20, and
19- 2 10-14-21.
19- 3 (d) A preneed sales agent may be authorized to sell,
19- 4 offer, and execute preneed contracts on behalf of all
19- 5 entities owned or operated by the agent's sponsoring
19- 6 preneed dealer.
19- 7 (e) If the application for his or her registration is sent
19- 8 by certified mail, return receipt requested, an individual
19- 9 may begin functioning as a preneed sales agent as soon as
19-10 a completed application for registration, as set forth in
19-11 subsection (g) of this Code section, is mailed to the
19-12 Secretary of State, provided that, if any such sales agent
19-13 fails to meet the qualifications set forth in this
19-14 chapter, the preneed dealer shall immediately upon
19-15 notification by the Secretary of State cause such agent to
19-16 cease any sales activity on its behalf.
19-17 (f) The qualifications for a preneed sales agent are as
19-18 follows:
19-19 (1) The applicant must be at least 18 years of age;
19-20 (2) The applicant must not be subject to any order of
19-21 the Secretary of State that restricts his or her ability
19-22 to be registered as a preneed sales agent; and
19-23 (3) The applicant must not have been adjudicated,
19-24 civilly or criminally, to have committed fraud or to
19-25 have violated any law of any state involving fair trade
19-26 or business practices, have been convicted of a
19-27 misdemeanor of which fraud is an essential element or
19-28 which involves any aspect of the funeral or cemetery
19-29 business, or have been convicted of a felony.
19-30 (g) An application for registration as a preneed sales
19-31 agent shall be submitted to the Secretary of State with an
19-32 application fee of $100.00 by the preneed dealer on a form
19-33 that has been designated by the Secretary of State and
19-34 shall contain, at a minimum, the following:
19-35 (1) The name, address, social security number, and date
19-36 of birth of the applicant and such other information as
19-37 the Secretary of State may reasonably require of the
19-38 applicant;
19-39 (2) The name, address, and license number of the
19-40 sponsoring preneed dealer;
-19-
20- 1 (3) A representation, signed by the applicant, that the
20- 2 applicant meets the requirements set forth in subsection
20- 3 (f) of this Code section;
20- 4 (4) A representation, signed by the preneed dealer, that
20- 5 the applicant is authorized to offer, sell, and sign
20- 6 preneed contracts on behalf of the preneed dealer and
20- 7 that the preneed dealer has informed the applicant of
20- 8 the requirements and prohibitions of this chapter
20- 9 relating to preneed sales, the provisions of the preneed
20-10 dealer's preneed contract, and the nature of the
20-11 merchandise, services, or burial rights sold by the
20-12 preneed dealer;
20-13 (5) A statement indicating whether the applicant has any
20-14 type of working relationship with any other preneed
20-15 dealer or insurance company; and
20-16 (6) A signed agreement by the applicant consenting to an
20-17 investigation of his or her background with regard to
20-18 the matters set forth in this Code section, including,
20-19 without limitation, his or her criminal history.
20-20 (h) An individual may be registered as a preneed sales
20-21 agent on behalf of more than one preneed dealer, provided
20-22 that the individual has received the written consent of
20-23 all such preneed dealers.
20-24 (i) A preneed dealer who has registered a preneed sales
20-25 agent shall notify the Secretary of State within three
20-26 business days of a change in such individual's status as a
20-27 preneed sales agent with such preneed dealer or upon the
20-28 occurrence of any other event which would disqualify the
20-29 individual as a preneed sales agent.
20-30 (j) Upon receipt and review of an application that
20-31 complies with all of the requirements of this Code
20-32 section, the Secretary of State shall register the
20-33 applicant. The department shall by rule provide for
20-34 annual renewal of registration and a renewal fee of
20-35 $50.00.
20-36 44-3-132.
20-37 (k) Each cemetery registered under this chapter shall
20-38 maintain in its files for a period of five years a
20-39 properly completed and executed application for employment
20-40 in a form prescribed by the Secretary of State for each
20-41 employee, officer, or independent contractor, or other
20-42 agent directly or indirectly involved in cemetery or
-20-
21- 1 preneed sales or any person occupying a similar status or
21- 2 performing similar functions. If a request is made, said
21- 3 forms shall be made available for inspection by authorized
21- 4 representatives of the Secretary of State.
21- 5 10-14-6. (c)(1) In the event that a cemetery offers perpetual
21- 7 care for some designated sections of its property but
21- 8 does not offer perpetual care to other designated
21- 9 sections, the cemetery shall be considered a perpetual
21-10 care cemetery for purposes of this article.
21-11 (2)(a)(1) Each cemetery or cemetery company required to be
21-12 registered by this chapter which holds out to the public
21-13 or advertises or contracts perpetual care in connection
21-14 with the sale or lease of cemetery lots, grave spaces,
21-15 niches, or crypts shall establish and maintain an
21-16 irrevocable trust fund for each cemetery owned.
21-17 (A)(2) For trust funds established on or after July 1,
21-18 2000, the The initial deposit to said irrevocable trust
21-19 fund shall be the sum of $10,000.00 and the deposit of
21-20 said sum shall be made before selling or contracting to
21-21 sell any cemetery property or burial right. No such
21-22 initial deposit shall be required with respect to any
21-23 cemetery for which there is an existing perpetual care
21-24 account on July 1, 2000. The trust fund shall apply
21-25 only to sales or contracts for sale of lots, grave
21-26 spaces, niches, mausoleums, columbaria, urns, or crypts
21-27 in which perpetual care has been promised or guaranteed.
21-28 (B)(3) The initial corpus of the trust fund and all
21-29 subsequent required deposits shall be deposited in a
21-30 bank, savings and loan institution, trust company, state
21-31 bank, state savings and loan institution, savings bank,
21-32 national bank, federal savings and loan institution,
21-33 state chartered credit union, or federally chartered
21-34 credit union, whose deposits are insured by the Federal
21-35 Deposit Insurance Corporation or other governmental
21-36 agency, or other depository or trustee which is approved
21-37 by the Secretary of State or which meets the standards
21-38 contained in the rules and regulations promulgated by
21-39 the Secretary of State.
21-40 (4) Each perpetual care trust fund established on or
21-41 after July 1, 2000, shall be named 'The ___________
21-42 Cemetery ____________ Perpetual Care Trust Fund' with
21-43 the first blank being filled by the name of the cemetery
-21-
22- 1 and the second blank being filled by the month and year
22- 2 of the establishment of such trust fund. If a cemetery
22- 3 has a perpetual care trust fund existing on July 1,
22- 4 2000, and the perpetual care trust fund agreement
22- 5 permits, the cemetery may make additional deposits to
22- 6 such a trust fund on the condition that the entire
22- 7 corpus of the trust fund, any income earned by the trust
22- 8 fund, and any subsequent deposits to the trust fund are
22- 9 thereafter governed by the provisions of this chapter,
22-10 the 'Georgia Cemetery and Funeral Services Act of 2000,'
22-11 as it existed on July 1, 2000, except for the amount of
22-12 the initial deposit to the trust fund. If a cemetery
22-13 owner or company elects to establish a new perpetual
22-14 care trust fund subject to the provisions of this
22-15 chapter, the 'Georgia Cemetery and Funeral Services Act
22-16 of 2000,' as it existed on July 1, 2000, any perpetual
22-17 care trust fund which existed on July 1, 2000, is
22-18 subject to the provisions of law in effect on the date
22-19 of its establishment, and deposits for sales transacted
22-20 on or after July 1, 2000, shall be deposited in the
22-21 trust fund established on or after July 1, 2000. If a
22-22 cemetery existing on July 1, 2000, has an existing
22-23 perpetual care trust fund which complies with provisions
22-24 of law in effect on the date of its establishment, a new
22-25 trust fund created in compliance with this chapter shall
22-26 not require an initial deposit.
22-27 (C)(b) Whenever any burial right, cemetery lot, grave
22-28 space, niche, mausoleum, columbarium, urn, or crypt
22-29 wherein perpetual care or endowment care is promised or
22-30 contracted for or guaranteed is sold by any cemetery, the
22-31 cemetery shall make deposits to the trust fund that equal
22-32 the sum of $10.00 per burial space or 10 15 percent of the
22-33 sales price of the burial right, whichever is greater, or
22-34 5 7.5 percent of the total sales price of any mausoleums,
22-35 niches, columbaria, urns, or crypts, provided that the
22-36 minimum deposit for each burial right shall be $50.00;
22-37 provided, further, that on July 1, 2003, and every three
22-38 years thereafter, the amount of said minimum deposit shall
22-39 be adjusted by the rate of change in the Consumer Price
22-40 Index as reported by the Bureau of Labor Statistics of the
22-41 United States Department of Labor. The Secretary of State
22-42 shall adopt such adjustment to the amount of said minimum
22-43 deposit by rule. Deposits to the trust fund shall be made
22-44 after receipt of final payment and prior to the time the
22-45 next quarterly report is required to be filed with the
-22-
23- 1 Secretary of State, not later than 30 days following the
23- 2 last day of the month in which payment therefor is made,
23- 3 or, in the case of a free space, the month in which the
23- 4 space is given. In the event any sale is made on an
23- 5 installment basis, not less than one-half of the principal
23- 6 portion of each payment made and allocated to the lot,
23- 7 grave, space, niche, mausoleum, columbarium, urn, or crypt
23- 8 shall be allocated to the required trust fund deposit,
23- 9 provided that all deposits to the trust fund shall be
23-10 completed within six years from the date of the signing
23-11 of the perpetual care contract. The manner of any such
23-12 allocation shall be clearly reflected on the books of the
23-13 registrant.
23-14 (D)(c) The initial $10,000.00 corpus of the perpetual care
23-15 trust fund shall not be counted as part of the required
23-16 periodic deposits and shall be considered to be corpus or
23-17 principal.
23-18 (E)(d) The income from the trust fund shall be paid to the
23-19 owner of the cemetery for his own use and benefit until
23-20 such income so paid has reached the total of $10,000.00.
23-21 Thereafter, the The income earned by the trust fund shall
23-22 be paid to the cemetery and used retained by the trust
23-23 fund. At such time as either:
23-24 (1) The cemetery owner is not licensed and has not been
23-25 licensed for 90 or more consecutive days to sell burial
23-26 rights;
23-27 (2) The cemetery is under the management of a receiver;
23-28 or
23-29 (3) Less than 50 percent of available lots are unsold,
23-30 95 percent of the income from the trust fund shall be paid
23-31 to the owner or receiver exclusively for covering the
23-32 costs of care and maintenance of the perpetual care
23-33 cemetery, or the sections of the cemetery which have been
23-34 designated as perpetual care sections, including
23-35 reasonable administrative expenses incurred in connection
23-36 therewith. The income of the trust fund shall be paid to
23-37 the cemetery owner or receiver at intervals agreed upon by
23-38 the cemetery recipient and the trustee, but in no case
23-39 shall the income be paid more often than monthly.
23-40 (F)(e) There shall be no withdrawals from the trust fund
23-41 except pursuant to the provisions of this article chapter
23-42 or by court order.
-23-
24- 1 (G)(i)(f)(1) The assets of said a trust fund shall be
24- 2 invested and reinvested subject to all the terms,
24- 3 conditions, limitations, and restrictions imposed by the
24- 4 laws of the State of Georgia upon executors and trustees
24- 5 regarding the making and depositing of investments with
24- 6 trust moneys pursuant to Code Sections 53-8-1 through
24- 7 53-8-4 of the 'Pre-1998 Probate Code,' if applicable, or
24- 8 Code Section 53-8-1 and Code Section 53-12-287 of the
24- 9 'Revised Probate Code of 1998.' Subject to said terms,
24-10 conditions, limitations, and restrictions, the trustee
24-11 of the perpetual care trust fund shall have full power
24-12 to hold, purchase, sell, assign, transfer, reinvest, and
24-13 dispose of any of the securities and investments in
24-14 which any of the assets of said fund are invested,
24-15 including proceeds of investments.
24-16 (ii)(2) Any state bank, national bank, trust company, or
24-17 other financial institution authorized to act in a
24-18 fiduciary capacity in this state, which presently or in
24-19 the future serves as a fiduciary or cofiduciary of the
24-20 trust fund of a perpetual care cemetery, may invest part
24-21 or all of such trust fund held by it for investment in
24-22 interests or participation in one or more common trust
24-23 funds established by that state bank, national bank,
24-24 trust company, or other financial institution for
24-25 collective investment, if such investment is not
24-26 expressly prohibited by the instrument, judgment,
24-27 decree, or order creating the fiduciary relationship and
24-28 if, in the case of cofiduciaries the trust institution
24-29 procures the consent of its cofiduciary or cofiduciaries
24-30 to such investment, and notwithstanding the fact that
24-31 such common trust funds are not invested and reinvested
24-32 subject to all the terms, conditions, limitations, and
24-33 restrictions imposed by the laws of the State of Georgia
24-34 upon executors and trustees in the making and disposing
24-35 of their investments.
24-36 (3) Notwithstanding any other provision of this
24-37 subsection, the Secretary of State shall establish rules
24-38 and regulations for investments of a trust fund
24-39 established on or after July 1, 2000, or otherwise
24-40 governed by this chapter, the 'Georgia Cemetery and
24-41 Funeral Services Act of 2000,' as it existed on July 1,
24-42 2000, as necessary to preserve the corpus and income of
24-43 such a fund and for determining what restrictions are
24-44 necessary for such purpose.
-24-
25- 1 (4) At any time, in the event that the perpetual care
25- 2 trust fund contains an amount less than the amount
25- 3 required by this Code section, the cemetery owner shall,
25- 4 within 15 days after the earlier of becoming aware of
25- 5 such fact or having been so notified by the Secretary of
25- 6 State, deposit into the perpetual care trust fund an
25- 7 amount equal to such shortfall. In the event that the
25- 8 Secretary of State and the cemetery owner disagree
25- 9 regarding the amount of such shortfall, no penalty shall
25-10 be imposed upon the cemetery owner for any failure to
25-11 comply with this paragraph unless such failure occurs
25-12 after notice and opportunity for a hearing as provided
25-13 in Code Section 10-14-23.
25-14 (H)(g) Moneys of the perpetual care trust fund shall not
25-15 be invested in or loaned to any business venture
25-16 controlled by, or in an affiliate of, the cemetery
25-17 individual owner, corporate owner, or a person who owns a
25-18 controlling interest of the corporate owner of a cemetery
25-19 owner that is not a natural person, or an affiliate of any
25-20 of these persons or entities.
25-21 (I)(h) The trustee shall furnish yearly to the Secretary
25-22 of State a financial report in a form designated by the
25-23 Secretary of State with respect to the perpetual care
25-24 trust fund. (3) Any cemetery which has established an irrevocable
25-26 trust fund prior to July 1, 1983, and said trust fund
25-27 meets the minimum criteria established by an Act providing
25-28 for the registration and regulation of cemeteries,
25-29 approved April 4, 1969 (Ga. L. 1969, p. 242), shall not be
25-30 required to establish a new trust fund; provided, further,
25-31 that any such cemetery which has sold all of its lots,
25-32 grave spaces, niches, or crypts and is unable to make any
25-33 future sales shall not be required to establish a trust
25-34 fund as provided in this subsection.
25-35 (i) Upon a finding by a court of competent jurisdiction of
25-36 failure to deposit or maintain funds in the trust account
25-37 as required by this chapter or of fraud, theft, or
25-38 misconduct by the owners of the cemetery or the officers
25-39 or directors of a cemetery company which has wasted or
25-40 depleted such funds, the cemetery owners or the officers
25-41 or directors of a cemetery company may be held jointly and
25-42 severally liable for any deficiencies in the trust account
25-43 as required in this chapter. (4) Perpetual care cemeteries shall be registered with
26- 2 the Secretary of State according to the provisions of
26- 3 subsection (b) of this Code section. In addition to the
26- 4 requirements of subsection (b) of this Code section, the
26- 5 applicant shall also include the following: (A) A filing fee of $100.00; (B) The name, address, and telephone number of each
26- 8 trustee; (C) A copy of a perpetual care trust fund agreement
26-10 executed by the applicant and accepted by the trustee
26-11 calling for an initial deposit of $10,000.00 and a
26-12 copy of a bank cashier's check or certified check
26-13 attached for such amount and payable to such trustee,
26-14 the trust agreement being conditioned only upon
26-15 issuance of a certificate of registration; and (D) A consent to service executed by the trustee
26-17 pursuant to Code Section 44-3-148.
26-18 10-14-7.
26-19 (e)(1)(a)(1) Each preneed dealer, as defined in this
26-20 article, which sells burial merchandise as defined or
26-21 funeral merchandise on a preneed basis or preneed
26-22 interment burial or funeral services shall establish and
26-23 maintain a preneed escrow account.
26-24 (A) The amount to be deposited to said escrow account
26-25 shall be 35 percent of the sales price of such burial
26-26 merchandise (2) With respect to funeral merchandise, the
26-27 amount to be deposited to said escrow account shall be
26-28 not less than 100 percent of the sales price of such
26-29 merchandise; in no event shall the amount deposited be
26-30 less than 110 percent of the wholesale price of such
26-31 merchandise. If the contract of sale shall include
26-32 cemetery grave spaces or items not deemed to be burial
26-33 or funeral merchandise, the portion of the sales price
26-34 attributable to the sale of the contemplated burial or
26-35 funeral merchandise shall be determined, and it shall
26-36 only be as to such portion of the total contract as
26-37 constitutes burial or funeral merchandise that the
26-38 deposit of 35 percent of the sales price described in
26-39 this paragraph shall be required. In the event that the
26-40 sale of burial or funeral merchandise is on under an
26-41 installment contract, the contemplated required trust
26-42 deposit shall be a pro rata part from of the principal
-26-
27- 1 portion of each installment payment, such deposit only
27- 2 being required pro rata as payments are made by the
27- 3 purchaser for such burial or funeral merchandise. In
27- 4 the event the installment contract is discounted or sold
27- 5 to a third party, the seller shall be required to
27- 6 deposit an amount equal to 35 percent of the undeposited
27- 7 portion of the required deposit of the sales price of
27- 8 such burial or funeral merchandise at such time as if
27- 9 the contract were paid in full.
27-10 (B)(3) In the event that With respect to cash advance
27-11 items and the sale of preneed funeral interment or
27-12 entombment or burial services are sold, the amount to be
27-13 deposited to said escrow account shall be 100 percent of
27-14 the sales price of such funeral or burial services or
27-15 the full amount of a cash advance item. The time and
27-16 manner of deposit shall be the same as that specified
27-17 for deposit of burial or funeral merchandise sale funds
27-18 to the escrow account.
27-19 (C)(b) The deposit specified in subparagraph (A) of
27-20 paragraph (1) paragraphs (2) and (3) of this subsection
27-21 (a) of this Code section shall be made prior to the date
27-22 of the next required filing of the quarterly report with
27-23 the Secretary of State not later than 30 days following
27-24 the last day of the month in which any payment is
27-25 received.
27-26 (D)(c) The preneed escrow account shall be established and
27-27 maintained in a state bank, state savings and loan
27-28 institution, savings bank, trust company, national bank,
27-29 federal savings and loan association, state chartered
27-30 credit union, or federally chartered credit union, whose
27-31 deposits are insured by the Federal Deposit Insurance
27-32 Corporation or other governmental agency, or other
27-33 organization approved by the Secretary of State which is
27-34 located and doing business in this state.
27-35 (E)(i)(d)(1) Funds may be released from the escrow
27-36 account when the burial or funeral merchandise is
27-37 delivered at the time of need or to the purchaser at the
27-38 purchaser's request or, in the case of a monument,
27-39 attached to realty, each phase of mausoleum construction
27-40 is completed or the cemetery spaces are developed, or
27-41 when the preneed dealer shall have paid the wholesale
27-42 price of the burial merchandise to a manufacturer
27-43 approved by the Secretary of State and when the
27-44 manufacturer shall have certified to the purchaser that
-27-
28- 1 such payment has been made and that such burial
28- 2 merchandise will be delivered upon request of the
28- 3 purchaser, or at such times as described in the rules
28- 4 and regulations promulgated by the Secretary of State.
28- 5 A preneed dealer is prohibited from requiring preneed
28- 6 delivery to the consumer as a condition of the sale.
28- 7 Outer burial containers may not be delivered prior to
28- 8 need. Deposits made from funds received in payment of
28- 9 preneed services shall remain in the escrow account
28-10 until such services are performed, at which time said
28-11 funds shall may be released to the cemetery preneed
28-12 dealer upon certification of performance. The trustee
28-13 may require certification by the preneed dealer of
28-14 delivery of merchandise or performance of services
28-15 before release of funds.
28-16 (ii)(2) The funds on deposit under the terms of this
28-17 subsection shall be deemed and regarded as escrow funds
28-18 pending delivery of the burial or funeral merchandise
28-19 concerned and said funds may not be pledged,
28-20 hypothecated, transferred, or in any manner encumbered
28-21 by the escrow agent nor may said funds be offset or
28-22 taken for the debts of the cemetery preneed dealer until
28-23 such time as the merchandise has been delivered or the
28-24 services performed the phase of mausoleum construction
28-25 completed or the cemetery spaces developed; but after
28-26 delivery of the burial or funeral merchandise concerned,
28-27 upon completion of each phase of construction of
28-28 mausoleum crypts, or the performance of preneed
28-29 interment services, the registrant shall be authorized
28-30 to withdraw or offset proportionately such funds and
28-31 treat the same as money belonging to him; provided,
28-32 however, that until delivery of burial merchandise is
28-33 complete, construction is completed, or services are
28-34 performed, the preneed dealer shall at no time withdraw
28-35 funds in excess of the actual cost incurred in such
28-36 delivery, construction, or performance. (2) Preneed dealers shall be registered with the
28-38 Secretary of State according to the provisions of
28-39 subsection (b) of this Code section. In addition to the
28-40 requirements of subsection (b) of this Code section, the
28-41 applicant shall also include the following: (A) A filing fee of $1,000.00; (B) The name, address, location, and telephone number
28-44 of the preneed burial escrow account depository, the
-28-
29- 1 name of the account, the account number, and a
29- 2 financial report regarding said account; (C) An executed copy of the escrow agreement setting
29- 4 forth the method used for computing the preneed escrow
29- 5 deposit requirements. This agreement shall not be
29- 6 changed or amended without the prior written approval
29- 7 of the Secretary of State; and (D) The name, address, and telephone number of the
29- 9 escrow agent. (3) Every registration under this subsection shall
29-11 expire on the first day of August of each year. The
29-12 registration must be renewed with the Secretary of State
29-13 each year by the submission of a renewal application
29-14 containing the information required in an application
29-15 for initial registration to the extent that such
29-16 information had not been included in an application or
29-17 renewal application previously filed. The filing fee
29-18 for renewal of registration shall be $200.00.
29-19 (e) At any time, in the event that the preneed escrow
29-20 account contains an amount less than the amount required
29-21 by this Code section, the preneed dealer shall, within 15
29-22 days after the earlier of becoming aware of such fact or
29-23 having been so notified by the Secretary of State, deposit
29-24 into the preneed account an amount equal to such
29-25 shortfall. In the event that the Secretary of State and
29-26 the preneed dealer disagree regarding the amount of such
29-27 shortfall, no penalty shall be imposed upon the preneed
29-28 dealer for any failure to comply with this provision
29-29 unless such failure occurs after notice and opportunity
29-30 for a hearing as provided in Code Section 10-14-23.
29-31 (f) Upon a finding by a court of competent jurisdiction of
29-32 failure to deposit or maintain funds in the preneed escrow
29-33 account as required by this chapter or of fraud, theft, or
29-34 other misconduct by the preneed dealer or the officers or
29-35 directors of the preneed dealer which has wasted or
29-36 depleted such funds, the preneed dealer or the officers or
29-37 directors of the preneed dealer may be held jointly and
29-38 severally liable for any deficiencies in the preneed
29-39 escrow account.
29-40 44-3-133. 10-14-8.
29-41 (a) The Secretary of State, by order, may prohibit a
29-42 person who is an employee, officer, or independent
-29-
30- 1 contractor, or other agent directly involved in cemetery
30- 2 or preneed sales or any person occupying a similar status
30- 3 or performing similar functions the sale of burial rights,
30- 4 burial or funeral merchandise, or burial or funeral
30- 5 services from employment or other association with a
30- 6 cemetery or preneed dealer registered registrant under
30- 7 this chapter if the Secretary of State finds that such is
30- 8 in the public interest and that said person:
30- 9 (1) Has willfully made or caused to be made, in any
30-10 documents filed with the Secretary of State under this
30-11 article chapter, or in any hearings conducted by the
30-12 Secretary of State, any statement which, at the time and
30-13 in the light of the circumstances under which it was
30-14 made, was false or misleading with respect to any
30-15 material fact, or has willfully omitted to state in any
30-16 application any material fact which is required to be
30-17 stated therein or necessary in order to make the
30-18 statements made, in light of the circumstances under
30-19 which they were made, not misleading;
30-20 (2) Has willfully violated or willfully failed to comply
30-21 with any provision of this article chapter or a
30-22 predecessor law or any regulation or order promulgated
30-23 or issued under this article chapter or any predecessor
30-24 law;
30-25 (3) Has been adjudicated, civilly or criminally, to have
30-26 committed fraud or to have violated any law of any state
30-27 involving fair trade or business practices, has been
30-28 convicted of a misdemeanor of which fraud is an
30-29 essential element or which involves moral turpitude or
30-30 which involves any aspect of the funeral or cemetery
30-31 business, or has been convicted of a felony;
30-32 (4) Has engaged in any unethical or dishonest practices
30-33 in the funeral or cemetery business; or
30-34 (5) Is permanently or temporarily enjoined, suspended,
30-35 or barred by any court of competent jurisdiction or by
30-36 any state or other jurisdiction from engaging in or
30-37 continuing any conduct or practice involving any aspect
30-38 of the funeral or cemetery business.
30-39 (b) Where the Secretary of State finds that there are
30-40 grounds for the prohibition from employment provided in
30-41 this Code section, he or she may issue an order
30-42 prohibiting an employee, officer, or independent
30-43 contractor, or other agent directly or indirectly involved
-30-
31- 1 in cemetery or preneed sales or any person occupying a
31- 2 similar status or performing similar functions from
31- 3 employment with a registered cemetery or preneed dealer.
31- 4 Such an order shall not be effective until notice and
31- 5 opportunity for hearing are provided in accordance with
31- 6 Code Section 44-3-147 10-14-23 and until the Secretary of
31- 7 State shall issue a written order in accordance with Code
31- 8 Section 10-14-23 44-3-147 if such person requests a
31- 9 hearing under Code Section 44-3-147; but the Secretary of
31-10 State may, if he or she finds that the public safety or
31-11 welfare requires emergency action, immediately issue an
31-12 order prohibiting such person from such employment. Such
31-13 an order of immediate prohibition will expire
31-14 automatically if the Secretary of State fails to afford
31-15 notice and opportunity for hearing pursuant to Code
31-16 Section 44-3-147 10-14-23.
31-17 44-3-135. 10-14-9. (a) Every person registering pursuant to Code Section
31-19 44-3-134 shall pay a filing fee as mandated by subsection
31-20 (c), (d), or (e) of Code Section 44-3-134. Such initial
31-21 filing fees and respective renewal fees shall be
31-22 cumulative. For the purposes of this Code section,
31-23 cumulative filing fees shall mean that a person who
31-24 registers under subsection (c) or (d) of Code Section
31-25 44-3-134, who also sells burial merchandise or burial
31-26 services under subsection (e) of Code Section 44-3-134,
31-27 shall pay a filing fee that is equal to the sum of the
31-28 filing fee required under subsection (c) or (d) of Code
31-29 Section 44-3-134 and the filing fee required by subsection
31-30 (e) of Code Section 44-3-134.
31-31 (b) Any document filed under this article or a
31-32 predecessor law may be incorporated by reference as an
31-33 exhibit to any registration statement filed under Code
31-34 Section 44-3-134 to the extent that the document is
31-35 currently accurate; provided, however, that each
31-36 registrant is under a continuing duty to update such
31-37 filing and to notify the Secretary of State regarding any
31-38 changes or amendments to such documents on file.
31-39 (c)(a) A registration statement application may be amended
31-40 by filing with the Secretary of State an amended
31-41 application signed by the persons required to sign the
31-42 original registration application under Code Section
31-43 44-3-134 10-14-4 or 10-14-5. Any such amendment shall
31-44 become effective when the Secretary of State so orders.
-31-
32- 1 (d)(b) Every applicant registered pursuant to Code Section
32- 2 44-3-134 10-14-4 or 10-14-5 shall agree to deliver in
32- 3 Georgia, on demand of the Secretary of State, all records
32- 4 and documents concerning funds, accounts, transactions,
32- 5 and activities of said applicant or said applicant shall
32- 6 agree to pay the expenses incurred in sending an auditor
32- 7 approved by the Secretary of State to wherever such
32- 8 records and documents are located for the purpose of
32- 9 conducting an audit pursuant to the provisions of this
32-10 article chapter.
32-11 (e)(c) When any cemetery or preneed dealer registered
32-12 under Code Section 44-3-134 10-14-4 is sold or the
32-13 ownership is otherwise transferred, or a controlling
32-14 interest is sold or transferred, the vendor or the
32-15 transferor of such cemetery, preneed dealer, or interest
32-16 shall remain liable for any funds that should have been
32-17 deposited prior to the date of such sale or transfer in
32-18 the perpetual care trust fund or the preneed escrow
32-19 account, or both.
32-20 (1) Prior to such sale or transfer, the vendor or
32-21 transferor shall notify the Secretary of State of the
32-22 proposed transfer and submit to the Secretary of State
32-23 any document or record the Secretary of State may
32-24 require in order to demonstrate that said vendor or
32-25 transferor is not indebted to the perpetual care trust
32-26 fund or the preneed escrow account, or both. After the
32-27 transfer of ownership or control and the presentation of
32-28 proof of currency of the perpetual care trust fund or
32-29 the preneed escrow account, or both, by the vendor or
32-30 transferor, the Secretary of State may require the
32-31 presentation of proof of the continued current status of
32-32 the perpetual care trust fund or the preneed escrow
32-33 account, or both, by the vendee or transferee. The
32-34 Secretary of State is authorized to recover from such
32-35 vendor, transferor, vendee, or transferee, for the
32-36 benefit of the perpetual care trust fund or the preneed
32-37 escrow account, or both, all sums which the vendor,
32-38 transferor, vendee, or transferee has not properly
32-39 accounted for and paid into the trust fund.
32-40 (2) When the vendee or transferee has complied with the
32-41 provisions of this subsection, he or she shall submit to
32-42 the Secretary of State an application for registration
32-43 and appropriate fees pursuant to Code Section 44-3-134
32-44 10-14-4. The Secretary of State shall then issue a
-32-
33- 1 certificate of registration to said vendee or
33- 2 transferee. (3) A fee of $500.00 shall be paid to the Secretary of
33- 4 State by the vendor or transferor upon written
33- 5 notification to the Secretary of State of the proposed
33- 6 transfer. Said fee shall be in addition to any fee
33- 7 imposed pursuant to subsection (f) of Code Section
33- 8 44-3-140.
33- 9 10-14-10.
33-10 (f)(1)(a) Except as otherwise provided in paragraph (2) of
33-11 this subsection subsections (b) and (c) of this Code
33-12 section, every cemetery initially registered according to
33-13 the provisions of this chapter on or after August 1, 1986,
33-14 July 1, 2000, shall consist of not less than 25 ten acres
33-15 of land.
33-16 (2)(b) The following cemeteries shall not be subject to
33-17 the requirement of paragraph (1) of this subsection (a) of
33-18 this Code section:
33-19 (A)(1) All cemeteries registered according to this
33-20 chapter article prior to August 1, 1986; or
33-21 (B) Cemeteries (2) Cemeteries initially registered on or
33-22 after August 1, 1986, but before July 1, 2000, which
33-23 shall consist of not less than 25 acres of land, except
33-24 for cemeteries subject to a provision of previous law,
33-25 which allowed cemeteries consisting of not less than ten
33-26 acres of land dedicated solely for burial purposes and
33-27 located in counties having a population of less than
33-28 10,000 according to the United States decennial census
33-29 of 1990 or any future such census.
33-30 (c) The Secretary of State may provide by rule or
33-31 regulation for a smaller minimum size for a cemetery which
33-32 consists solely of one or more columbaria.
33-33 44-3-136. 10-14-11.
33-34 (a) The Secretary of State may issue a stop order denying
33-35 effectiveness to, or suspending or revoking the
33-36 effectiveness of, any registration and shall give notice
33-37 of such issuance pursuant to Code Section 44-3-147
33-38 10-14-23 if he or she finds that the order is in the
33-39 public interest and that:
33-40 (1) The registration statement as of its effective date,
33-41 or as of any earlier date in the case of an order
-33-
34- 1 denying effectiveness, contains an untrue statement of a
34- 2 material fact or omits to state a material fact required
34- 3 to be stated therein or necessary to make the statements
34- 4 therein not misleading;
34- 5 (2) The applicant has failed to file financial reports
34- 6 required by Code Section 44-3-134 subsection (h) of Code
34- 7 Section 10-14-12;
34- 8 (3) The applicant has failed to pay the filing fees
34- 9 required by Code Section 44-3-134 10-4-4;
34-10 (4) The person or entity registered or sought to be
34-11 registered or the individual owner, corporate owner, or
34-12 person who owns a controlling interest of the corporate
34-13 owner has been adjudicated, civilly or criminally, to
34-14 have committed fraud or to have violated any law of any
34-15 state involving fair trade or business practices, has
34-16 been convicted of a misdemeanor of which fraud is an
34-17 essential element or which involves any aspect of the
34-18 funeral or cemetery business, or has been convicted of a
34-19 felony; or
34-20 (5) The trustee for the perpetual care trust fund or the
34-21 escrow agent for the preneed escrow account has failed
34-22 to file financial reports required by subsection (h) of
34-23 Code Section 10-14-6 or subsection (g) of Code Section
34-24 10-14-29;
34-25 (6) The person or entity registered or seeking to be
34-26 registered has become insolvent or has filed a voluntary
34-27 petition for protection from creditors; or
34-28 (5)(7) Any provision of this article chapter or any
34-29 rule, order, or condition lawfully imposed under this
34-30 article chapter has been willfully violated by:
34-31 (A) The person filing the registration statement
34-32 application;
34-33 (B) The registrant's individual owner, corporate
34-34 owner, or person who owns a controlling interest of
34-35 the corporate owner; or
34-36 (C) The trustee or escrow agent of a trust fund or
34-37 escrow account established and maintained pursuant to
34-38 the provisions of this article chapter.
34-39 (b) The Secretary of State may deny registration or refuse
34-40 to grant renewal of registration if he or she finds that
34-41 such refusal or denial is in the public interest and that:
-34-
35- 1 (1) The registration statement application does not
35- 2 contain a current list of cemetery sales persons preneed
35- 3 sales agents and accompanying information as required by
35- 4 Code Section 44-3-132 10-14-4;
35- 5 (2) The applicant has not paid filing fees or renewal
35- 6 fees as required by Code Section 44-3-134 10-14-4; or
35- 7 (3) The applicant has not filed the financial reports
35- 8 required by Code Section 44-3-134 10-14-4 or subsection
35- 9 (h) of Code Section 10-14-12.
35-10 (c) In addition to the actions authorized in subsections
35-11 (a) and (b) of this Code section, the Secretary of State
35-12 shall be authorized to impose a penalty fee of $25.00 per
35-13 month or fraction of a month not to exceed $500.00 for the
35-14 late filing of an application for a renewal registration
35-15 statement or late filing of financial reports required by
35-16 this article chapter, or both. However, the penalty fee
35-17 or fees imposed for the late filing of an application for
35-18 renewal of registration statements or financial reports
35-19 may be waived by the Secretary of State upon just cause
35-20 being shown by the party against whom the fee is imposed
35-21 upon a showing to the Secretary of the State that such
35-22 late filing was due to circumstances beyond the control of
35-23 the applicant or registrant despite the exercise by the
35-24 applicant or registrant of due diligence in the timely
35-25 filing of the application or report.
35-26 (d) The Secretary of State may by order summarily postpone
35-27 or suspend the effectiveness of the registration statement
35-28 or refuse to register any applicant pending final
35-29 determination of any proceeding under this Code section.
35-30 Upon the entry of the order, the Secretary of State shall
35-31 promptly notify the applicant or registrant of the order
35-32 and the reasons therefor for the order and that, within
35-33 15 days after the receipt of a written request, the matter
35-34 will be heard. If no hearing is requested and none is
35-35 ordered by the Secretary of State, the order will remain
35-36 in effect until it is modified or vacated by the Secretary
35-37 of State. If a hearing is requested or ordered, the
35-38 Secretary of State, after notice of an opportunity for
35-39 hearing to the persons affected, may modify or vacate the
35-40 order or extend it until final determination.
35-41 (e) The Secretary of State may vacate or modify a stop
35-42 order if he or she finds that the conditions which
-35-
36- 1 prompted its entry have changed or that it is otherwise in
36- 2 the public interest to do so.
36- 3 (f) No stop order issued under any part of this Code
36- 4 section, except the first sentence of subsection (d) of
36- 5 this Code section, shall become effective until and unless
36- 6 the Secretary of State has complied with the provisions of
36- 7 Code Section 44-3-147 10-14-23.
36- 8 44-3-137. 10-14-12.
36- 9 (a) Each registrant under paragraph (1) or (2) of
36-10 subsection (c) or (e) (b), or both, of Code Section
36-11 44-3-134 10-14-4 shall establish and maintain a separate
36-12 and distinct account for the perpetual care trust fund for
36-13 each cemetery and for the preneed escrow account. There
36-14 shall be no commingling, codeposits, or transfers of funds
36-15 between the accounts, except pursuant to court order and
36-16 with the knowledge and consent of the Secretary of State.
36-17 (b) Each registrant shall keep and maintain separate
36-18 books, records, accounts, and documents regarding the
36-19 transaction of its business. The books, records,
36-20 accounts, and documents related to the keeping of funds
36-21 pursuant to the provisions of this article chapter and the
36-22 rules and regulations promulgated under this article
36-23 chapter shall be kept and maintained by the registrant
36-24 separately from the other books, records, accounts, and
36-25 documents related to the transaction of business.
36-26 (c) A cemetery owner or an officer or director of a
36-27 cemetery company may be a trustee of the perpetual care
36-28 trust fund of a cemetery which the individual or cemetery
36-29 company owns upon approval of the Secretary of State. Said
36-30 trustee shall be required to be bonded and to file such
36-31 bond with the Secretary of State; however, the Secretary
36-32 of State shall have the authority to waive said bond upon
36-33 a showing of financial stability and assets.
36-34 (d) The Secretary of State shall have the authority to
36-35 prescribe or approve the form of the perpetual care trust
36-36 agreement and shall have the authority to approve or
36-37 disapprove any amendments to said trust agreement as of
36-38 July 1, 1983.
36-39 (e) The Secretary of State shall have the authority to
36-40 prescribe or approve the form of the preneed escrow
36-41 account agreement and shall have the authority to approve
-36-
37- 1 or disapprove any amendments to said escrow account
37- 2 agreement as of July 1, 1983.
37- 3 (f) A trustee or escrow agent of a registrant may be
37- 4 removed pursuant to the provisions of Code Section
37- 5 44-3-143 10-14-19 or by other means provided by the laws
37- 6 of this state.
37- 7 (g) A cemetery company or preneed dealer may use a sales
37- 8 contract containing an allocation of proceeds section,
37- 9 provided full disclosure of the allocation of proceeds is
37-10 explained to the purchaser. The perpetual care
37-11 obligations imposed by this article must be deposited when
37-12 any of the following events occur but not later than the
37-13 time required by subsection (c) of Code Section 44-3-134: (1) The allocation of proceeds applies the funds to the
37-15 perpetual care trust; or (2) When sufficient funds have been applied to the price
37-17 of the contract according to allocation of proceeds
37-18 provision to indicate full payment of the lot, grave
37-19 space, niche, burial right, or crypt. (h) A preneed dealer must notify the Secretary of State
37-21 whether the wholesale cost method or the 35 percent of the
37-22 sales price method will be used for computing preneed
37-23 escrow account deposits. The method of computing said
37-24 deposits shall be the same for determining the amount of
37-25 all escrow account deposits and the method shall not be
37-26 changed except upon the written approval of the Secretary
37-27 of State. (i) In lieu of the preneed deposits specified in
37-29 subparagraph (e)(1)(A) of Code Section 44-3-134, a preneed
37-30 dealer may post such proof of financial responsibility as
37-31 the Secretary of State shall, by rule and regulation,
37-32 require for the protection of persons purchasing burial
37-33 merchandise.
37-34 (j)(g) Each perpetual care cemetery and preneed dealer
37-35 shall file a report concerning the perpetual care trust
37-36 and the preneed escrow account at least quarterly annually
37-37 with the Secretary of State, provided that, after notice
37-38 and a hearing, the Secretary of State may order more
37-39 frequent reports in the event any such report is not filed
37-40 in a timely manner or if the report filed contains errors
37-41 and deficiencies. The report shall be on a form approved
37-42 prescribed by the Secretary of State.
-37-
38- 1 44-3-138. 10-14-13.
38- 2 For the purposes of venue for any civil or criminal action
38- 3 under this article chapter, any violation of this article
38- 4 chapter or of any rule, regulation, or order promulgated
38- 5 under this article chapter shall be considered to have
38- 6 been committed in any county in which any act was
38- 7 performed in furtherance of the transaction which violated
38- 8 the article this chapter, in the county of any violator's
38- 9 principal place of business in this state, in the county
38-10 of the cemetery's or preneed dealer's or burial or funeral
38-11 merchandise dealer's location or residence in this state,
38-12 and in any county in which any violator had control or
38-13 possession of any proceeds of said violation or of any
38-14 books, records, documents, or other material or objects
38-15 which were used in furtherance of said violation.
38-16 44-3-139. 10-14-14.
38-17 (a) The administration of the provisions of this article
38-18 chapter shall be vested in the Secretary of State, who may
38-19 delegate such of his or her powers and duties under this
38-20 article chapter to a division director subordinate of his
38-21 the office as he or she shall deem appropriate.
38-22 (b) The Secretary of State shall keep a record of all
38-23 proceedings related to his or her duties under this
38-24 article chapter and shall keep a register keep records in
38-25 which shall be entered the names of all cemeteries,
38-26 preneed dealers, preneed sales agents, and burial or
38-27 funeral merchandise dealers to whom certificates of
38-28 registration are issued, which register records shall be
38-29 open at all times for public inspection.
38-30 (c) The Secretary of State shall have the authority to
38-31 administer oaths in, and to prescribe forms for, all
38-32 matters arising under this article chapter.
38-33 (d) The Secretary of State shall have authority to employ
38-34 examiners, clerks and stenographers, and other employees
38-35 as the administration of this law may require. The
38-36 Secretary of State shall also have authority to appoint
38-37 and employ investigators who shall have, in any case that
38-38 in which there is a reason to believe a violation of this
38-39 article chapter has occurred or is about to occur, the
38-40 right and power to serve subpoenas and to swear out and
38-41 execute search warrants and arrest warrants.
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39- 1 (e) The Secretary of State shall have the power to make
39- 2 such rules and regulations from time to time as he or she
39- 3 may deem necessary and proper for the enforcement of this
39- 4 article chapter including, without
