05 LC 21
8441T
House
Bill 910
By:
Representatives Rogers of the
26th
and Graves of the
137th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 10 of the Official Code of Georgia Annotated, relating to commerce
and trade, so as to change certain definitions; to delete certain duties of the
Secretary of State with regard to cemeteries and funeral services; to amend
provisions relating to the sale of preneed burial services; to delete certain
fees; to make numerous other changes to the laws relating to cemeteries and
funeral services; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
10 of the Official Code of Georgia Annotated, relating to commerce and trade, is
amended by striking in its entirety Chapter 14, relating to cemeteries and
funeral services, and inserting in lieu thereof the following:
"CHAPTER
14
10-14-1.
This
chapter shall be known as and may be cited as the 'Georgia Cemetery and Funeral
Services Act of 2000.'
10-14-2.
(a)
The legislature recognizes that purchasers of preneed burial rights, funeral or
burial merchandise, or funeral services or burial services may suffer serious
economic harm if purchase money is not set aside for future use as intended by
the purchaser and that the failure to maintain cemetery grounds properly may
cause significant emotional distress. Therefore, it is necessary in the interest
of the public welfare to regulate preneed dealers, licensees, registrants, and
cemetery companies in this state. However, restrictions shall be imposed only to
the extent necessary to protect the public from significant or discernible harm
or damage and not in a manner which will unreasonably affect the competitive
market.
(b)
Subject to certain interests of society, the legislature finds that every
competent adult has the right to control the decisions relating to his or her
own funeral arrangements. Accordingly, unless otherwise stated in this chapter,
it is the
legislaturés
express intent that nothing contained in this chapter should be construed or
interpreted in any manner as to subject preneed contract purchasers to federal
income taxation under the grantor trust rules contained in Sections 671 et seq.
of the Internal Revenue Code of 1986, as amended.
(c)
Nothing herein is intended to prohibit or restrict the sale or purchase of life
insurance as a funding vehicle for preneed contracts under this chapter, nor to
change the state of the law prior to July 1, 2000, with respect to prohibiting
or restricting the sale or purchase of life insurance as a funding vehicle for
preneed contracts under this chapter.
10-14-3.
As
used in this chapter, the term:
(1)
'Affiliate' means a person who directly or indirectly owns or controls, is owned
or controlled by, or is under common ownership or control with another person.
Solely for purposes of this definition, the terms 'owns,' 'is owned,' and
'ownership' mean ownership of an equity interest, or the equivalent thereof, of
10 percent or more, and the term 'person' means an individual, partnership,
committee, association, corporation, or any other organization or group of
persons.
(2)
'Board' means the
State Board
of Funeral Service as described and
authorized in
Chapter 18
of Title 43.
(3)
'Burial merchandise,' 'funeral merchandise,' or 'merchandise' means any personal
property offered or sold by any person for use in connection with the final
disposition, memorialization, interment, entombment, or inurnment of human
remains.
(4)
'Burial right' means the right to use a grave space, mausoleum, or columbarium
for the interment, entombment, or inurnment of human remains.
(5)
'Burial service' means any service other than a funeral service offered or
provided by any person in connection with the final disposition,
memorialization, interment, entombment, or inurnment of human
remains.
(6)
'Care and maintenance' means the perpetual process of keeping a cemetery and its
lots, graves, grounds, landscaping, roads, paths, parking lots, fences,
mausoleums, columbaria, vaults, crypts, utilities, and other improvements,
structures, and embellishments in a well cared for and dignified condition, so
that the cemetery does not become a nuisance or place of reproach and desolation
in the community.
As
specified in the rules of the Secretary of
State, care and maintenance may include,
but is not limited to, any or all of the following activities: mowing the grass
at reasonable intervals; raking and cleaning the grave spaces and adjacent
areas; pruning of shrubs and trees; suppression of weeds and exotic flora; and
maintenance, upkeep, and repair of drains, water lines, roads, buildings, and
other improvements. Care and maintenance may include, but is not limited to,
reasonable overhead expenses necessary for such
purposes,
including maintenance of machinery, tools, and equipment used for such
purposes. Care and maintenance may also
include repair or restoration of improvements necessary or desirable as a result
of wear, deterioration, accident, damage, or destruction. Care and maintenance
does not include expenses for the construction and development of new grave
spaces or interment structures to be sold to the public.
(7)
'Casket' means a container which is designed for the encasement and viewing of a
dead human body.
(8)
'Cemetery' means a place dedicated to and used, or intended to be used, for
permanent interment of human remains. A cemetery may contain land or earth
interments; mausoleum, a vault, crypt interments; a columbarium or other
structure or place used or intended to be used for the inurnment of cremated
human remains; or any combination of one or more of such structures or places.
Such term shall
not
include governmentally owned cemeteries, fraternal cemeteries, cemeteries owned
and operated by churches, synagogues, or communities or family burial
plots.
(9)
'Cemetery company' means any entity that owns or controls cemetery lands or
property.
(10)
'Columbarium' means a structure or building which is substantially exposed above
the ground and which is intended to be used for the inurnment of cremated human
remains.
(11)
'Common business enterprise' means a group of two or more business entities that
share common ownership in excess of 50 percent.
(12)
'Cremation' includes any mechanical or thermal process whereby a deceased human
being is reduced to ashes. Cremation also includes any other mechanical or
thermal process whereby human remains are pulverized, burned, recremated, or
otherwise further reduced in size or quantity.
(13)
'Crypt' means a chamber of sufficient size to inter the remains of a deceased
human being.
(14)
'Entombment' mean the disposition of a dead human body in a mausoleum but shall
not include the opening and closing of a grave space, crypt, or niche or the
installation of a vault.
(15)
'Final disposition' means the final disposal of a deceased human being whether
by interment, entombment, inurnment, burial at sea, cremation, or any other
means and includes, but is not limited to, any other disposition of remains for
which a segregated charge is imposed.
(16)
'Funeral director' means any person licensed in this state to practice funeral
directing pursuant to the provisions of Chapter 18 of Title 43.
(17)
'Funeral service' means any service relating to the transportation, embalming,
and interment of a deceased human being, as further described in paragraphs
(10), (18), and (19) of Code Section 43-18-1.
(18)
'Grave space' or 'lot' means a space of ground in a cemetery intended to be used
for the interment in the ground of human remains.
(19)
'Human remains' means the bodies of deceased human beings and includes the
bodies in any stage of decomposition and the cremated remains.
(20)
'Interment' means the burial of human remains but shall not include the opening
and closing of a grave space,
crypt,
or niche or
the installation of a vault.
(21)
'Inurnment' means the disposition of the cremated remains of a deceased human
being in an urn or other container but shall not include the opening and closing
of a grave space, crypt, or niche or the installation of a vault.
(22)
'Mausoleum' means a structure or building which is substantially exposed above
the ground and which is used, or intended to be used, for the entombment of
human remains.
(23)
'Mausoleum section' means any construction unit of a mausoleum which is
acceptable to the Secretary of State and which a cemetery uses to initiate its
mausoleum program or to add to its existing mausoleum structures.
(24)
'Monument' means any product used for identifying or permanently decorating a
grave site, including, without limitation, monuments, markers, benches, and
vases and any base or foundation on which they rest or are mounted.
(25)
'Niche' means a space used, or intended to be used, for the interment of the
cremated remains of one or more deceased human beings.
(26)
'Nonperpetual care' means any cemetery which does not offer perpetual care as
defined in this Code section.
(27)
'Outer burial container' or 'vault' means an enclosure into which a casket is
placed and includes, but is not limited to, containers made of concrete, steel,
fiberglass, copper or other metals, sectional concrete enclosures, crypts, and
wooden enclosures.
(28)
'Perpetual care' means the care and maintenance and the reasonable
administration of the cemetery grounds and buildings at the present time and in
the future.
(29)
'Person' or 'entity' means an individual, a corporation, a limited liability
company, a general or limited partnership, an association, a joint-stock
company, a trust, or any type of incorporated or unincorporated
organization.
(30)
'Preneed contract' means any arrangement or method, of which the provider of
burial or funeral merchandise or services has actual knowledge, whereby any
person agrees to furnish burial or funeral merchandise or services in the
future.
(31)
'Preneed dealer' means every person, other than a salesperson registered under
this chapter, who engages, either for all or part of his or her time, directly
or indirectly, as agent, broker, or principal in the retail business of
offering, selling, or otherwise dealing in funeral services or burial services
or funeral or burial merchandise which is not attached to realty or delivered to
the purchaser at the time of sale.
(32)
'Preneed interment service' or 'preneed service' means any service which is not
performed at the time of sale and which is offered or provided by any person in
connection with the interment of human remains, except those services offered
regarding mausoleums and the normal and customary installation charges on burial
or funeral merchandise.
(33)
'Sale' or 'sell' means and shall include every contract of sale or disposition
of burial rights, grave spaces, burial services, funeral services, or burial or
funeral merchandise for value. The term 'offer to sell,' 'offer for sale,' or
'offer' shall include any attempt or offer to dispose of, or solicitation of an
offer to buy, grave spaces, burial rights, burial or funeral services, or burial
or funeral merchandise for value. This definition shall not include wholesalers
of burial or funeral merchandise.
(34)
'Salesperson' or 'sales agent' means an individual employed or appointed or
authorized by a cemetery, cemetery company, or preneed dealer to sell grave
spaces, burial rights, burial or funeral merchandise, burial or funeral
services, or any other right or thing of value in connection with the final
disposition of human remains. The owner of a cemetery, the executive officers,
and general partners of a cemetery company shall not be deemed to be
salespersons within the meaning of this definition unless they are paid a
commission for the sale of said property, lots, rights, burial or funeral
merchandise, or burial or funeral services.
(35)
'Secretary of State' means the Secretary of State of the State of
Georgia.
(36)
'Solicitation' means any communication in the context of an offer or sale of
grave spaces, burial or funeral merchandise, or burial or funeral services which
directly or implicitly requests a response from the recipient.
10-14-4.
(a)(1)
Unless exempt under this chapter, it shall be unlawful for any person to offer
for sale or to sell any cemetery burial rights, mausoleum interment rights,
columbarium inurnment rights, grave spaces, or other physical locations for the
final disposition of human remains in this state unless such person is
registered as or employed by and acting on behalf of and under the direction of
a person registered as a cemetery owner pursuant to this Code
section.
(2)
Unless exempt under this chapter, it shall be unlawful for any person to offer
for sale or sell burial or funeral merchandise or burial services in this state
unless such person is registered as or employed by and acting on behalf of and
under the direction of a person registered as a cemetery owner under this Code
section, a funeral director under Chapter 18 of Title 43, or a burial or funeral
merchandise dealer under this Code section.
(3)
Unless exempt under this chapter, it shall be unlawful for any person to offer
for sale or to sell any preneed burial or funeral merchandise or preneed burial
services in this state unless such person is registered as a preneed dealer or
preneed sales agent pursuant to this Code section.
(4)
It shall be unlawful for any person to offer for sale or to sell any funeral
services in this state unless such person is licensed as a funeral director
under the provisions of Chapter 18 of Title 43.
(b)(1)
Every person desiring to be a registered cemetery owner shall file with the
Secretary of State a separate registration application for each cemetery owned
in a form prescribed by the
Secretary
of State, executed and duly verified under
oath by the applicant, if the applicant is an individual, or by an executive
officer or general partner, if the applicant is a corporation or partnership, or
by an individual of similar authority, if the applicant is some other entity,
and containing the following information:
(A)
The name, mailing address, and telephone number of the applicant, which for the
purposes of this Code section shall be the legal owner of the land upon which
the cemetery is located;
(B)
The location and, if different from the information submitted for subparagraph
(A) of this paragraph, the mailing address and telephone number of the
cemetery;
(C)
The location of all records of the applicant which relate to the
cemetery;
(D)
If the applicant is not a natural person, the names of the president, secretary,
and registered agent if the applicant is a corporation, of each general partner
if the applicant is a partnership, or of individuals of similar authority if the
applicant is some other entity and their respective addresses and telephone
numbers; the name and address of each person who owns 10 percent or more of any
class of ownership interest in the applicant and the percentage of such
interest; and the date of formation and the jurisdiction of organization of the
applicant;
(E)
A copy of cemetery rules and regulations, a certified copy of a certificate of
existence or certificate of authority issued in accordance with Code Section
14-2-128 if the applicant is a corporation,
and any
amendments to such documents or any substantially equivalent documents. Any such
document once filed with the Secretary of State pursuant to this chapter shall
be deemed to be on file and incorporated into any subsequent renewal or filing
of such cemetery registration; provided, however, that each applicant and
registrant is under a continuing duty to update such filing and to notify the
Secretary of State regarding any changes or amendments to the articles of
incorporation, bylaws, cemetery rules and regulations, or substantially
equivalent documents, and provided, further, that any applicant or registrant
shall furnish to the Secretary of State additional copies of any such document
upon request;
(F)
A description of any judgment or pending litigation to which the applicant or
any affiliate of the applicant is a party and which involves the operation of
the cemetery or could materially affect the business or assets of the
applicant;
(G)
Whether the applicant or any affiliate of the applicant owns any other entities
in Georgia regulated by this chapter and, if so, the location, mailing address,
telephone number, and type of registration of such other entities;
(H)
A consent to service of process meeting the requirements of Code Section
10-14-24 for actions brought by the State of Georgia;
(I)
The name and business address of each individual employed, appointed, or
authorized by the applicant to offer for sale or to sell any grave lots, burial
rights, burial or funeral merchandise, or burial services on behalf of the
cemetery;
(J)
A balance sheet of the applicant dated as of the end of the most recent fiscal
year and in no event dated more than 15 months prior to the date of filing,
which the Secretary of State shall treat as confidential and not open to public
inspection;
(K)
Evidence satisfactory to the
Secretary
of State that the applicant owns for the
cemetery unencumbered fee simple title to contiguous land in the minimum acreage
required by this chapter or by rules issued by the Secretary of State in
accordance with this chapter, properly zoned for use as a cemetery, and
dedicated for such use, and a copy of a plat of survey thereto, provided that
nothing herein shall prohibit the encumbrance of the undeveloped portion of
cemetery property for the purpose of securing debt incurred for the purpose of
developing or improving such property;
(L)
Evidence satisfactory to the
Secretary
of State that the applicant has recorded,
in the public land records of the county in which the land described in
subparagraph (K) of this paragraph is located, a notice that contains the
following language:
NOTICE
The
property described herein shall not be sold, conveyed, leased, mortgaged, or
encumbered
except as
provided by the prior written approval of the Secretary of
State, as provided in the Georgia Cemetery
and Funeral Services Act of 2000.
Such
notice shall have been clearly printed in boldface type of not less than ten
points and may be included on the face of the deed of conveyance to the
applicant or may be contained in a separate recorded instrument that contains a
legal description of the property.
(M)
The name, address, location, and telephone number of the perpetual care trust
account depository or depositories, the names of the accounts, and the account
numbers;
(N)
The name, address, and telephone number of each trustee;
(O)
A copy of a perpetual care trust fund agreement executed by the applicant and
accepted by the trustee, and evidence satisfactory to the
Secretary
of State of the deposit into such account
of the amount of the initial required deposit, the trust agreement being
conditioned only upon issuance of a certificate of registration;
(P)
Such other information and documents as the Secretary of State may require by
rule; and
(Q)
A filing fee of $100.00.
(2)
Every person desiring to be a registered preneed dealer shall file with the
Secretary of State a registration application in a form prescribed by the
Secretary
of State, executed and duly verified under
oath by the applicant, if the applicant is an individual, or by an executive
officer or general partner, if the applicant is a corporation or partnership, or
by an individual of similar authority, if the applicant is some other entity,
and containing the following information:
(A)
The name of the applicant;
(B)
The location, mailing address, and telephone number of the
applicant́s
principal business location in Georgia and the same information for other
locations where business is conducted, together with any trade names associated
with each location;
(C)
All locations of the records of the applicant which relate to preneed sales in
Georgia;
(D)
If the applicant is not a natural person, the names of the president, secretary,
and registered agent if the applicant is a corporation, of each general partner
if the applicant is a partnership, or of individuals of similar authority, if
the applicant is some other entity and their respective addresses and telephone
numbers; the name and address of each person who owns 10 percent or more of any
class of ownership interest in the applicant and the percentage of such
interest; and the date of formation and the jurisdiction of organization of the
applicant;
(E)
A certified copy of a certificate of existence or certificate of authority
issued in accordance with Code Section 14-2-128 if the applicant is a
corporation;
(F)
A description of any judgment or pending litigation to which the applicant or
any affiliate of the applicant is a party and which involves the operation of
the
applicant́s
preneed business in Georgia or which could materially affect the business or
assets of the applicant;
(G)
Whether the applicant or any affiliate of the applicant owns any other entities
in Georgia regulated by this chapter and, if so, the location, mailing address,
telephone number, and type of registration of such other entities;
(H)
A consent to service of process meeting the requirements of Code Section
10-14-24 for actions brought by the State of Georgia;
(I)
A list of each individual employed, appointed, or authorized by the applicant to
offer for sale or to sell any grave lots, burial rights, burial or funeral
merchandise, or burial services on behalf of the applicant;
(J)
A balance sheet of the applicant dated as of the end of the most recent fiscal
year and in no event dated more than 15 months prior to the date of filing,
which the Secretary of State shall treat as confidential and not open to public
inspection;
(K)
The name, address, location, and telephone number of the preneed escrow account
depository or depositories, the names of the accounts, and the account
numbers;
(L)
An executed copy of the escrow agreement required by Code Section
10-14-7;
(M)
The name, address, and telephone number of the escrow agent;
(N)
Such other information and documents as the
Secretary
of State may require by rule;
and
(O)
A filing fee of $250.00.
(3)
Every person desiring to be a registered burial or funeral merchandise dealer
shall file with the
Secretary
of State a registration application in a
form
prescribed
by the Secretary of State, executed and
duly verified under oath by the applicant, if an individual, or by an executive
officer or general partner, if the applicant is a corporation or partnership, or
by an individual of similar authority, if the applicant is some other entity,
and containing the following information:
(A)
The name of the applicant;
(B)
The location, mailing address, and telephone number of the
applicant́s
principal business location in Georgia and the same information for other
locations where business is conducted, together with any trade names associated
with each location;
(C)
All locations of the records of the applicant which relate to funeral or burial
merchandise sales in Georgia;
(D)
If the applicant is not a natural person, the names of the president, secretary,
and registered agent if the applicant is a corporation, of each general partner
if the applicant is a partnership, or of individuals of similar authority if the
applicant is some other entity and their respective addresses and telephone
numbers; the name and address of each person who owns 10 percent or more of any
class of ownership interest in the applicant and the percentage of such
interest; and the date of formation and the jurisdiction of organization of the
applicant;
(E)
A certified copy of a certificate of existence or certificate of authority
issued in accordance with Code Section 14-2-128 if the applicant is a
corporation;
(F)
A description of any judgment or pending litigation to which the applicant or
any affiliate of the applicant is a party and which involves the operation of
the
applicant́s
funeral or burial merchandise business in Georgia or which could materially
affect the business or assets of the applicant;
(G)
Whether the applicant or any affiliate of the applicant owns any other entities
in Georgia regulated by this chapter and, if so, the location, mailing address,
telephone number, and type of registration of such other entities;
(H)
A consent to service of process meeting the requirements of Code Section
10-14-24 for actions brought by the State of Georgia;
(I)
The name and business address of each individual employed, appointed, or
authorized by the applicant to offer for sale or to sell any burial or funeral
merchandise on behalf of the applicant;
(J)
A balance sheet of the applicant dated as of the end of the most recent fiscal
year and in no event dated more than 15 months prior to the date of filing,
which the Secretary of State shall treat as confidential and not open to public
inspection;
(K)
Such other information and documents as the
Secretary
of State may require by rule;
(L)
A filing fee of $100.00; and
(M)
A bond, if required by the rules and regulations of the Secretary of
State.
(c)
The
Secretary of State may approve an
application only after he or she has conducted an investigation of the applicant
and determined that such applicant is qualified by character, experience, and
financial responsibility to conduct the business for which the applicant is
seeking registration in a legal and proper manner. A registration application
filed under this Code section shall become effective upon the issuing of a
certificate of registration by the
Secretary
of State or at such earlier time as the
Secretary
of State determines.
(d)
Every registration under this subsection shall expire on the first day of August
of each year. The registration must be renewed with the
Secretary
of State each year by the submission of a
renewal application containing the information required in an application for
initial registration to the extent that such information had not been included
in an application or renewal application previously filed together with a sworn
statement that all information not provided remains accurate. The filing fee for
renewal of registration shall be $50.00 for each cemetery of cemetery owners,
$100.00 for preneed dealers, and $50.00 for burial or funeral merchandise
dealers.
(e)
The
Secretary of State, by rule, may provide
for exceptions from registration for cemeteries when the
Secretary
of State determines that the public
interest does not require registration, provided that such cemeteries are in
existence on or before July 1, 2000, consist of less than 25 acres, and are
operated by nonprofit entities.
(f)
Notwithstanding any provision to the contrary contained in this Code section,
the following shall be exempt from registration as a burial or funeral
merchandise dealer:
(1)
Any registered cemetery owner;
(2)
The owner of any cemetery exempt from registration with respect to sales of
burial or funeral merchandise sold for use at such cemetery;
(3)
Any licensed funeral director;
(4)
Any person providing interment and disinterment services exclusively at
cemeteries exempt from registration;
(5)
Any monument manufacturer or dealer which does not install monuments in
cemeteries required to be registered by this Code section;
(6)
Any person who does not offer for sale or sell burial or funeral services or
merchandise to the general public; and
(7)
Any registered preneed dealer.
In
addition, the Secretary of State, by rule, may provide for other exceptions from
registration.
(g)(1)
Any cemetery in operation on August 1, 1986 which offers perpetual care for some
designated sections of its property but does not offer perpetual care to other
designated sections shall be considered a perpetual care cemetery for purposes
of this chapter. No cemetery formed or created on or after July 1, 2000, may
fail to offer perpetual care for any part of such cemetery.
(2)
Any nonperpetual care cemetery which was registered
with the
Secretary of State prior to August 1,
1986, may continue to be operated as such after that date and a renewal of such
registration shall not be required.
(3)
Any
nonperpetual
care cemetery which is shown to be of
historical significance and is operated solely for historical nonprofit purposes
shall be
exempt from registration.
(4)
Except as specifically authorized under paragraphs (2) and (3) of this
subsection, from and after August 1, 1986, it shall be unlawful for any person
to operate or establish a nonperpetual care cemetery.
10-14-5.
(a)
All individuals who offer preneed contracts to the public, or who execute
preneed contracts on behalf of any entity required to be registered as a preneed
dealer, and all individuals who offer, sell, or sign contracts for the preneed
sale of burial rights shall be registered with the
Secretary
of State as preneed sales agents, pursuant
to this Code section, unless such individuals are exempted under this chapter or
individually own a controlling interest in a preneed dealer registered under
this chapter.
(b)
All preneed sales agents must be employed by a registered preneed
dealer.
(c)
A preneed dealer shall be liable for the activities of all preneed sales agents
who are employed by the preneed dealer or who perform any type of preneed
related activity on behalf of the preneed dealer. If a preneed sales agent
violates any provision of this chapter, such preneed sales agent and each
preneed dealer who employs such preneed sales agent shall be subject to the
penalties and remedies set out in Code Sections 10-14-11, 10-14-19, 10-14-20,
and 10-14-21.
(d)
A preneed sales agent may be authorized to sell, offer, and execute preneed
contracts on behalf of all entities owned or operated by the
agent́s
sponsoring preneed dealer.
(e)
If the application for his or her registration is sent by certified mail, return
receipt requested, an individual may begin functioning as a preneed sales agent
as soon as a completed application for registration, as set forth in subsection
(g) of this Code section, is mailed to the
Secretary
of State, provided that, if any such sales
agent fails to meet the qualifications set forth in this chapter, the preneed
dealer shall immediately upon notification by the
Secretary
of State cause such agent to cease any
sales activity on its behalf.
(f)
The qualifications for a preneed sales agent are as follows:
(1)
The applicant must be at least 18 years of age;
(2)
The applicant must not be subject to any order of
the
Secretary of State that restricts his or
her ability to be registered as a preneed sales agent; and
(3)
The applicant must not have been adjudicated, civilly or criminally, to have
committed fraud or to have violated any law of any state involving fair trade or
business practices, have been convicted of a misdemeanor of which fraud is an
essential element or which involves any aspect of the funeral or cemetery
business, or have been convicted of a felony.
(g)
An application for registration as a preneed sales agent shall be submitted to
the
Secretary
of State with an application fee of
$100.00 by the preneed dealer on a form that has been designated by the
Secretary
of State and shall contain, at a minimum,
the following:
(1)
The name, address, social security number, and date of birth of the applicant
and such other information as
the
Secretary of State may reasonably require
of the applicant;
(2)
The name, address, and license number of the sponsoring preneed
dealer;
(3)
A representation, signed by the applicant, that the applicant meets the
requirements set forth in subsection (f) of this Code section;
(4)
A representation, signed by the preneed dealer, that the applicant is authorized
to offer, sell, and sign preneed contracts on behalf of the preneed dealer and
that the preneed dealer has informed the applicant of the requirements and
prohibitions of this chapter relating to preneed sales, the provisions of the
preneed
dealeŕs
preneed contract, and the nature of the merchandise, services, or burial rights
sold by the preneed dealer;
(5)
A statement indicating whether the applicant has any type of working
relationship with any other preneed dealer or insurance company;
and
(6)
A signed agreement by the applicant consenting to an investigation of his or her
background with regard to the matters set forth in this Code section, including,
without limitation, his or her criminal history.
(h)
An individual may be registered as a preneed sales agent on behalf of more than
one preneed dealer, provided that the individual has received the written
consent of all such preneed dealers.
(i)
A preneed dealer who has registered a preneed sales agent shall notify the
Secretary
of State within three business days of a
change in such
individuaĺs
status as a preneed sales agent with such preneed dealer or upon the occurrence
of any other event which would disqualify the individual as a preneed sales
agent.
(j)
Upon receipt and review of an application that complies with all of the
requirements of this Code section, the
Secretary
of State shall register the applicant. The
department shall by rule provide for annual renewal of registration and a
renewal fee of $50.00.
(k)
Each cemetery registered under this chapter shall maintain in its files for a
period of five years a properly completed and executed application for
employment in a form
prescribed
by the Secretary of State for each
employee, officer, independent contractor, or other agent directly or indirectly
involved in cemetery or preneed sales or any person occupying a similar status
or performing similar functions.
If a
request is made, said forms shall be made available for inspection by authorized
representatives of the Secretary of State.
10-14-6.
(a)(1)
Each cemetery or cemetery company required to be registered by this chapter
shall establish and maintain an irrevocable trust fund for each cemetery
owned.
(2)
For trust funds established on or after July 1, 2000, the initial deposit to
said irrevocable trust fund shall be the sum
of
$10,000.00 and the deposit of said sum
shall be made before selling or contracting to sell any burial right. No such
initial deposit shall be required with respect to any cemetery for which there
is an existing perpetual care account on July 1, 2000. The trust fund shall
apply to sales or contracts for sale of lots, grave spaces, niches, mausoleums,
columbaria, urns, or crypts in which perpetual care has been promised or
guaranteed.
(3)
The initial corpus of the trust fund and all subsequent required deposits shall
be deposited in a state bank, state savings and loan institution, savings bank,
national bank, or federal savings and loan institution, whose deposits are
insured by the Federal Deposit Insurance Corporation or other governmental
agency, or a state or federally chartered credit union insured under 12 U.S.C.
Section 1781 of the Federal Credit Union Act, or other depository or trustee
which is approved by the Secretary of State or which meets the standards
contained in the rules and regulations promulgated by the Secretary of
State.
(4)
Each perpetual care trust fund established on or after July 1, 2000, shall be
named 'The ___________ Cemetery ____________ Perpetual Care Trust Fund' with the
first blank being filled by the name of the cemetery and the second blank being
filled by the month and year of the establishment of such trust fund. If a
cemetery has a perpetual care trust fund existing on July 1, 2000, and the
perpetual care trust fund agreement permits, the cemetery may make additional
deposits to such a trust fund on the condition that the entire corpus of the
trust fund, any income earned by the trust fund, and any subsequent deposits to
the trust fund are thereafter governed by the provisions of this chapter, the
'Georgia Cemetery and Funeral Services Act of 2000,' as it existed on July 1,
2000, except for the amount of the initial deposit to the trust fund. If a
cemetery owner or company elects to establish a new perpetual care trust fund
subject to the provisions of this chapter, the 'Georgia Cemetery and Funeral
Services Act of 2000,' as it existed on July 1, 2000, any perpetual care trust
fund which existed on July 1, 2000, is subject to the provisions of law in
effect on the date of its establishment, and deposits for sales transacted on or
after July 1, 2000, shall be deposited in the trust fund established on or after
July 1, 2000. If a cemetery existing on July 1, 2000, has an existing perpetual
care trust fund which complies with provisions of law in effect on the date of
its establishment, a new trust fund created in compliance with this chapter
shall not require an initial deposit.
(b)
Whenever any burial right, cemetery lot, grave space, niche, mausoleum,
columbarium, urn, or crypt wherein perpetual care or endowment care is promised
or contracted for or guaranteed is sold by any cemetery, the cemetery shall make
deposits to the trust fund that equal
15
percent of the sales price of the burial right or
7.5
percent of the total sales price of any mausoleums, niches, columbaria, urns, or
crypts, provided that the minimum deposit for each burial right shall be
$50.00;
provided, further, that on July 1, 2003,
and every
three years thereafter, the amount of said minimum deposit shall be adjusted by
the rate of change in the Consumer Price Index as reported by the Bureau of
Labor Statistics of the United States Department of Labor. The Secretary of
State shall adopt such adjustment to the amount of said minimum deposit by
rule. Deposits to the trust fund shall be
made not later than 30 days following the last day of the month in which payment
therefor is made, or, in the case of a free space, the month in which the space
is given. In the event any sale is made on an installment basis, not less than a
pro rata share of the principal portion of each payment made and allocated to
the lot, grave, space, niche, mausoleum, columbarium, urn, or crypt shall be
allocated to the required trust fund deposit, provided that all deposits to the
trust fund shall be completed within
six
years from the date of the signing of the
perpetual care contract. The manner of any such allocation shall be clearly
reflected on the books of the registrant.
(c)
The initial
$10,000.00 corpus of the perpetual care
trust fund shall not be counted as part of the required
periodic
deposits and shall be considered to be
corpus or principal.
(d)
The income earned by the trust fund shall be retained by the trust fund. At such
time as either:
(1)
The cemetery owner is not licensed and has not been licensed for 90 or more
consecutive days to sell burial rights;
(2)
The cemetery is under the management of a receiver; or
(3)
Less than 50 percent of available lots are unsold,
95
percent of the income from the trust fund shall be paid to the owner or receiver
exclusively for covering the costs of care and maintenance of the cemetery,
including reasonable administrative expenses incurred in connection therewith.
The income of the trust fund shall be paid to the owner or receiver at intervals
agreed upon by the recipient and the trustee, but in no case shall the income be
paid more often than monthly.
(e)
There shall be no withdrawals from the trust fund except pursuant to the
provisions of this chapter
or by court
order.
(f)(1)
The assets of a trust fund shall be invested and reinvested subject to all the
terms, conditions, limitations, and restrictions imposed by the laws of the
State of Georgia upon executors and trustees regarding the making and depositing
of investments with trust moneys pursuant to Code Sections 53-8-1 through 53-8-4
of the 'Pre-1998 Probate Code,' if applicable, or Code Section 53-8-1 and Code
Section 53-12-287 of the 'Revised Probate Code of 1998.' Subject to said terms,
conditions, limitations, and restrictions, the trustee of the perpetual care
trust fund shall have full power to hold, purchase, sell, assign, transfer,
reinvest, and dispose of any of the securities and investments in which any of
the assets of said fund are invested, including proceeds of
investments.
(2)
Any state bank, national bank, or other financial institution authorized to act
in a fiduciary capacity in this state, which presently or in the future serves
as a fiduciary or cofiduciary of the trust fund of a perpetual care cemetery,
may invest part or all of such trust fund held by it for investment in interests
or participation in one or more common trust funds established by that state
bank, national bank, or other financial institution for collective investment,
if such investment is not expressly prohibited by the instrument, judgment,
decree, or order creating the fiduciary relationship and if, in the case of
cofiduciaries the trust institution procures the consent of its cofiduciary or
cofiduciaries to such investment, and notwithstanding the fact that such common
trust funds are not invested and reinvested subject to all the terms,
conditions, limitations, and restrictions imposed by the laws of the State of
Georgia upon executors and trustees in the making and disposing of their
investments.
(3)
Notwithstanding any other provision of this subsection,
the
Secretary of State shall establish rules and regulations
for investments of a trust fund
established on or after July 1, 2000, or otherwise governed by this chapter, the
'Georgia Cemetery and Funeral Services Act of 2000,' as it existed on July 1,
2000, as necessary to preserve the corpus and income of such a fund and for
determining what restrictions are necessary for such purpose.
(4)
At any
time, in the event that the perpetual care trust fund contains an amount less
than the amount required by this Code section, the cemetery owner shall, within
15 days after the earlier of becoming
aware of such fact or having been so notified by the
Secretary
of State, deposit into the perpetual care
trust fund an amount equal to such shortfall. In the event that the
Secretary
of State and the cemetery owner disagree
regarding the amount of such shortfall, no penalty shall be imposed upon the
cemetery owner for any failure to comply with this paragraph unless such failure
occurs after notice and opportunity for a hearing as provided in Code Section
10-14-23.
(g)
Moneys of the perpetual care trust fund shall not be invested in or loaned to
any business venture controlled by the cemetery owner, a person who owns a
controlling interest of a cemetery owner that is not a natural person, or an
affiliate of any of these persons or entities.
(h)
The trustee shall furnish yearly to the
Secretary
of State a financial report in a form
designated by the
Secretary
of State with respect to the perpetual
care trust fund.
(i)
Upon a finding by a court of competent jurisdiction of failure to deposit or
maintain funds in the trust account as required by this chapter or of fraud,
theft, or misconduct by the owners of the cemetery or the officers or directors
of a cemetery company which has wasted or depleted such funds, the cemetery
owners or the officers or directors of a cemetery company may be held jointly
and severally liable for any deficiencies in the trust account as required in
this chapter.
10-14-7.
(a)(1)
Each preneed dealer which sells burial or funeral merchandise on a preneed basis
or preneed burial or funeral services shall establish and maintain a preneed
escrow account.
(2)
With respect to each monument and outer burial container, and except as
otherwise provided in paragraph (3) of this subsection, the amount to be
deposited to said escrow account shall be not less than
35
percent of the sales price of such monument or outer burial container; in no
event shall the amount deposited be less than
110
percent of the wholesale price of such monument or outer burial container. For
any other burial or funeral merchandise, the amount to be deposited to said
escrow account shall be not less than 100 percent of the sales price of such
merchandise; in no event shall the amount deposited be less than
110
percent of the wholesale price of such merchandise. If the contract of sale
shall include grave spaces or items not deemed to be burial or funeral
merchandise, the portion of the sales price attributable to the sale of the
burial or funeral merchandise shall be determined, and it shall only be as to
such portion of the total contract as constitutes burial or funeral merchandise
that the deposit described in this paragraph shall be required. In the event
that the sale of burial or funeral merchandise is under an installment contract,
the required trust deposit shall be a pro rata part of the principal portion of
each installment payment, such deposit only being required as payments are made
by the purchaser for such burial or funeral merchandise. In the event the
installment contract is discounted or sold to a third party, the seller shall be
required to deposit an amount equal to the undeposited portion of the required
deposit of the sales price of such burial or funeral merchandise at such time as
if the contract were paid in full.
(3)
With respect to a monument or outer burial container the itemized sales price of
which does not include the installation of such item,
100
percent of the installation cost shall be
deposited in the escrow account.
(4)
With respect to cash advance items and the sale of preneed funeral or burial
services, the amount to be deposited to said escrow account shall be
100
percent of the sales price of such funeral
or burial services or the full amount of a cash advance item. The time and
manner of deposit shall be the same as that specified for deposit of burial or
funeral merchandise sale funds to the escrow account.
(b)
The deposit specified in paragraphs (2) and (3) of subsection (a) of this Code
section shall be made not later than 30 days following the last day of the month
in which any payment is received.
(c)
The preneed escrow account shall be established and maintained in a state bank,
state savings and loan institution, savings bank, national bank, federal savings
and loan association, whose deposits are insured by the Federal Deposit
Insurance Corporation or other governmental agency, or a state or federally
chartered credit union insured under 12 U.S.C. Section 1781 of the Federal
Credit Union Act, or other organization approved by the Secretary of State which
is located and doing business in this state.
(d)(1)
Funds may be released from the escrow account when the burial or funeral
merchandise is delivered at the time of need or to the purchaser at the
purchaseŕs
request or, in the case of a monument, attached to realty,
or at such
times as described in the rules and regulations promulgated by the Secretary of
State. A preneed dealer is prohibited from
requiring preneed delivery to the consumer as a condition of the sale.
Outer
burial containers may not be delivered prior to
need. Deposits made from funds received in
payment of preneed services shall remain in the escrow account until such
services are performed, at which time said funds may be released to the preneed
dealer. The trustee may require certification by the preneed dealer of delivery
of merchandise or performance of services before release of funds.
(2)
The funds on deposit under the terms of this subsection shall be deemed and
regarded as escrow funds pending delivery of the burial or funeral merchandise
concerned and said funds may not be pledged, hypothecated, transferred, or in
any manner encumbered by the escrow agent nor may said funds be offset or taken
for the debts of the preneed dealer until such time as the merchandise has been
delivered or the services performed; but after delivery of the burial or funeral
merchandise concerned.
(e)
At any time, in the event that the preneed escrow account contains an amount
less than the amount required by this Code section, the preneed dealer shall,
within 15 days after the earlier of becoming aware of such fact or having been
so notified by the
Secretary
of State, deposit into the preneed account
an amount equal to such shortfall. In the event that the
Secretary
of State and the preneed dealer disagree
regarding the amount of such shortfall, no penalty shall be imposed upon the
preneed dealer for any failure to comply with this provision unless such failure
occurs after notice and opportunity for a hearing as provided in Code Section
10-14-23.
(f)
Upon a finding by a court of competent jurisdiction of failure to deposit or
maintain funds in the preneed escrow account as required by this chapter or of
fraud, theft, or other misconduct by the preneed dealer or the officers or
directors of the preneed dealer which has wasted or depleted such funds, the
preneed dealer or the officers or directors of the preneed dealer may be held
jointly and severally liable for any deficiencies in the preneed escrow
account.
10-14-8.
(a)
The
Secretary of State, by order, may prohibit
a person who is an employee, officer, independent contractor, or other agent
directly involved in the sale of burial rights, burial or funeral merchandise,
or burial or funeral services from employment or other association with a
registrant under this chapter if
the
Secretary of State finds that such is in
the public interest and that said person:
(1)
Has willfully made or caused to be made, in any documents filed with
the
Secretary of State under this chapter, or
in any hearings conducted
by the
Secretary of State, any statement which,
at the time and in the light of the circumstances under which it was made, was
false or misleading with respect to any material fact, or has willfully omitted
to state in any application any material fact which is required to be stated
therein or necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading;
(2)
Has willfully violated or willfully failed to comply with any provision of this
chapter or a predecessor law or any regulation or order promulgated or issued
under this chapter or any predecessor law;
(3)
Has been adjudicated, civilly or criminally, to have committed fraud or to have
violated any law of any state involving fair trade or business practices, has
been convicted of a misdemeanor of which fraud is an essential element or which
involves any aspect of the funeral or cemetery business, or has been convicted
of a felony;
(4)
Has engaged in any unethical or dishonest practices in the funeral or cemetery
business; or
(5)
Is permanently or temporarily enjoined, suspended, or barred by any court of
competent jurisdiction or by any state or other jurisdiction from engaging in or
continuing any conduct or practice involving any aspect of the funeral or
cemetery business.
(b)
Where the
Secretary
of State finds that there are grounds for
the prohibition from employment provided in this Code section, he or she may
issue an order prohibiting an employee, officer, independent contractor, or
other agent directly or indirectly involved in cemetery or preneed sales or any
person occupying a similar status or performing similar functions from
employment with a registered cemetery or preneed dealer. Such an order shall not
be effective until notice and opportunity for hearing are provided in accordance
with Code Section 10-14-23
and until
the Secretary of State shall issue a written order in accordance with Code
Section 10-14-23; but the Secretary of State may, if he or she finds that the
public safety or welfare requires emergency action, immediately issue an order
prohibiting such person from such employment. Such an order of immediate
prohibition will expire automatically if the Secretary of State fails to afford
notice and opportunity for hearing pursuant to Code Section
10-14-23.
10-14-9.
(a)
A registration application may be amended by filing with
the
Secretary of State an amended application
signed by the persons required to sign the original application under Code
Section 10-14-4 or 10-14-5.
(b)
Every applicant registered pursuant to Code Section 10-14-4 or 10-14-5 shall
agree to deliver in Georgia, on demand of the Secretary of State, all records
and documents concerning funds, accounts, transactions, and activities of said
applicant or said applicant shall agree to pay the expenses incurred in sending
an auditor approved by the Secretary of State to wherever such records and
documents are located for the purpose of conducting an audit pursuant to the
provisions of this chapter.
(c)
When any cemetery or preneed dealer registered under Code Section 10-14-4 is
sold or the ownership is otherwise transferred, or a controlling interest is
sold or transferred, the vendor or the transferor of such cemetery, preneed
dealer, or interest
shall
remain liable for any funds that should have been deposited prior to the date of
such sale or transfer in the perpetual care trust fund or the preneed escrow
account, or both.
(1)
Prior to such sale or transfer, the vendor or transferor shall notify
the
Secretary of State of the proposed
transfer and submit to
the
Secretary of State any document or record
the
Secretary
of State may require in order to
demonstrate that said vendor or transferor is not indebted to the perpetual care
trust fund or the preneed escrow account, or both. After the transfer of
ownership or control and the presentation of proof of currency of the perpetual
care trust fund or the preneed escrow account, or both, by the vendor or
transferor, the
Secretary
of State may require the presentation of
proof of the continued current status of the perpetual care trust fund or the
preneed escrow account, or both, by the vendee or transferee.
The
Secretary of State is authorized to
recover from such vendor, transferor, vendee, or transferee, for the benefit of
the perpetual care trust fund or the preneed escrow account, or both, all sums
which the vendor, transferor, vendee, or transferee has not properly accounted
for and paid into the trust fund.
(2)
When the vendee or transferee has complied with the provisions of this
subsection, he or she
shall
submit to the Secretary of State an
application for registration and appropriate fees pursuant to Code Section
10-14-4.
The
Secretary of State shall then issue a
certificate of registration to said vendee or transferee.
10-14-10.
(a)
Except as otherwise provided in subsections (b) and (c) of this Code section,
every cemetery initially registered according to the provisions of this chapter
on or after July 1, 2000, shall consist of not less than ten acres of
land.
(b)
The following cemeteries shall not be subject to the requirement of subsection
(a) of this Code section:
(1)
All cemeteries registered according to this chapter prior to August 1, 1986;
or
(2)
Cemeteries initially registered on or after August 1, 1986, but before July 1,
2000, which shall consist of not less than 25 acres of land, except for
cemeteries subject to a provision of previous law, which allowed cemeteries
consisting of not less than ten acres of land dedicated solely for burial
purposes and located in counties having a population of less than 10,000
according to the United States decennial census of 1990 or any future such
census.
(c)
The
Secretary of State may provide by rule or
regulation for a smaller minimum size for
a cemetery which consists solely of one or more columbaria.
10-14-11.
(a)
The
Secretary of State may issue a stop order denying effectiveness to, or
suspending or revoking the effectiveness of, any registration and shall give
notice of such issuance pursuant to Code Section 10-14-23 if he or she finds
that the order is in the public interest and that:
(1)
The registration as of its effective date, or as of any earlier date in the case
of an order denying effectiveness, contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(2)
The applicant has failed to file financial reports required by subsection (h) of
Code Section 10-14-12;
(3)
The applicant has failed to pay the filing fees required by Code Section
10-4-4;
(4)
The person or entity registered or sought to be registered or the individual
owner, corporate owner, or person who owns a controlling interest of the
corporate owner has been adjudicated, civilly or criminally, to have committed
fraud or to have violated any law of any state involving fair trade or business
practices, has been convicted of a misdemeanor of which fraud is an essential
element or which involves any aspect of the funeral or cemetery business, or has
been convicted of a felony;
(5)
The trustee for the perpetual care trust fund or the escrow agent for the
preneed escrow account has failed to file financial reports required by
subsection (h) of Code Section 10-14-6 or subsection (g) of Code Section
10-14-29;
(6)
The person or entity registered or seeking to be registered has become insolvent
or has filed a voluntary petition for protection from creditors; or
(7)
Any provision of this chapter or any rule, order, or condition lawfully imposed
under this chapter has been willfully violated by:
(A)
The person filing the registration application;
(B)
The
registrant́s
individual owner, corporate owner, or person who owns a controlling interest of
the corporate owner; or
(C)
The trustee or escrow agent of a trust fund or escrow account established and
maintained pursuant to the provisions of this chapter.
(b)
The
Secretary of State may deny registration
or refuse to grant renewal of registration if he or she finds that such refusal
or denial is in the public interest and that:
(1)
The registration application does not contain a current list of preneed sales
agents and accompanying information as required by Code Section
10-14-4;
(2)
The applicant has not paid filing fees or renewal fees as required by Code
Section 10-14-4; or
(3)
The applicant has not filed the financial reports required by Code Section
10-14-4 or subsection (h) of Code Section 10-14-12.
(c)
In addition to the actions authorized in subsections (a) and (b) of this Code
section,
the
Secretary of State shall be authorized to
impose a penalty fee not to exceed
$500.00
for the late filing of an application for a renewal registration or late filing
of financial reports required by this chapter, or both. However, the penalty fee
or fees imposed for the late filing of an application for renewal of
registration or financial reports
may be
waived by the Secretary of State upon a showing to the Secretary of the State
that such late filing was due to circumstances beyond the control of the
applicant or registrant despite the exercise by the applicant or registrant of
due diligence in the timely filing of the application or report.
(d)
The Secretary of State may by order summarily postpone or suspend the
effectiveness of the registration or refuse to register any applicant pending
final determination of any proceeding under this Code section. Upon the entry of
the order, the Secretary of State shall promptly notify the applicant or
registrant of the order and the reasons for the order and that, within 15 days
after the receipt of a written request, the matter will be heard. If no hearing
is requested and none is ordered by the Secretary of State, the order will
remain in effect until it is modified or vacated by the Secretary of State. If a
hearing is requested or ordered, the Secretary of State, after notice of an
opportunity for hearing to the persons affected, may modify or vacate the order
or extend it until final determination.
(e)
The Secretary of State may vacate or modify a stop order if he or she finds that
the conditions which prompted its entry have changed or that it is otherwise in
the public interest to do so.
(f)
No stop order issued under any part of this Code
section,
except the first sentence of subsection (d) of this Code section, shall become
effective until and unless the Secretary of State has complied with the
provisions of Code Section 10-14-23.
10-14-12.
(a)
Each registrant under paragraph (1) or (2) of subsection (b), or both, of Code
Section 10-14-4 shall establish and maintain a separate and distinct account for
the perpetual care trust fund for each cemetery and for the preneed escrow
account. There shall be no commingling, codeposits, or transfers of funds
between the accounts, except pursuant to court order and with the knowledge and
consent of the
Secretary
of State.
(b)
Each registrant shall keep and maintain separate books, records, accounts, and
documents regarding the transaction of its business. The books, records,
accounts, and documents related to the keeping of funds pursuant to the
provisions of this chapter and the rules and regulations promulgated under this
chapter shall be kept and maintained by the registrant separately from the other
books, records, accounts, and documents related to the transaction of
business.
(c)
A cemetery owner or an officer or director of a cemetery company may be a
trustee of the perpetual care trust fund of a cemetery which the individual or
cemetery company owns upon approval of the
Secretary
of State.
(d)
The
Secretary of State shall have the
authority to prescribe or approve the form of the perpetual care trust agreement
and shall have the authority to approve or disapprove any amendments to said
trust agreement as of July 1, 1983.
(e)
The
Secretary of State shall have the
authority to prescribe or approve the form of the preneed escrow account
agreement and shall have the authority to approve or disapprove any amendments
to said escrow account agreement as of July 1, 1983.
(f)
A trustee or escrow agent of a registrant may be removed pursuant to the
provisions of Code Section 10-14-19 or by other means provided by the laws of
this state.
(g)
Each perpetual care cemetery and preneed dealer shall file a report concerning
the perpetual care trust and the preneed escrow account annually with
the
Secretary of State, provided that, after
notice and a hearing,
the
Secretary of State may order more frequent
reports in the event any such report is not filed in a timely manner or if the
report filed contains errors and deficiencies.
The report
shall be on a form prescribed by the Secretary of State.
10-14-13.
For
the purposes of venue for any civil or criminal action under this chapter, any
violation of this chapter or of any rule, regulation, or order promulgated under
this chapter shall be considered to have been committed in any county in which
any act was performed in furtherance of the transaction which violated this
chapter, in the county of any
violatoŕs
principal place of business in this state, in the county of the
cemeterýs
or preneed
dealeŕs
or burial or funeral merchandise
dealeŕs
location or residence in this state, and in any county in which any violator had
control or possession of any proceeds of said violation or of any books,
records, documents, or other material or objects which were used in furtherance
of said violation.
10-14-14.
(a)
The
administration of the provisions of this chapter shall be vested in the
Secretary of State, who may delegate such
of his or her powers and duties under this chapter to a subordinate of the
office as he or she shall deem appropriate.
(b)
The
Secretary of State shall keep a record of
all proceedings related to his or her duties under this chapter and shall keep
records in which shall be entered the names of all cemeteries, preneed dealers,
preneed sales agents, and burial or funeral merchandise dealers to whom
certificates of registration are issued, which records shall be open at all
times for public inspection.
(c)
The
Secretary of State shall have the
authority to administer oaths in, and to prescribe forms for, all matters
arising under this chapter.
(d)
The Secretary of State shall have authority to employ examiners, clerks and
stenographers, and other employees as the administration of this law may
require. The Secretary of State shall also have authority to appoint and employ
investigators who shall have, in any case
in which there is a reason to believe a violation of this chapter has occurred
or is about to occur, the right and power to serve subpoenas and to swear out
and execute search warrants and arrest warrants.
(e)
The Secretary of State shall have the power to make such rules and regulations
from time to time as he or she may deem necessary and proper for the enforcement
of this chapter including, without limitation, rules
regarding the solicitation of burial or
funeral rights, merchandise, or services.
The
Secretary of State shall regulate such
solicitation to protect the public from solicitation which is intimidating,
overreaching, vexatious, fraudulent, or misleading; which utilizes undue
influence; or which takes undue advantage of a
persońs
ignorance or emotional vulnerability.
Such rules
and regulations shall be adopted, promulgated, and contested as provided in
Chapter 13 of Title 50.
10-14-15.
(a)
The
Secretary of State, at his or her discretion:
(1)
May make
such public
or private investigations or examinations
inside or outside this state as he or she deems necessary to determine whether
any person has violated or is about to violate any provision of this chapter or
any rule, regulation, or order under this chapter or to aid in the enforcement
of this chapter or in the prescribing of rules and regulations under this
chapter; and
(2)
May require or permit any person to file a statement in writing,
under oath
or otherwise as the Secretary of State
determines, as to all the facts and
circumstances concerning the matter to be investigated.
(b)
For the purpose of conducting any investigation as provided in this Code
section, the Secretary of State shall have the power to administer oaths, to
call any party to testify under oath at such investigations, to require the
attendance of witnesses and the production of books, records, and papers, and to
take the depositions of witnesses; and, for such purposes, the Secretary of
State is authorized to issue a subpoena for any witness or a subpoena for the
production of documentary evidence to compel the production of any books,
records, or papers. Said subpoenas may be served by certified mail or statutory
overnight delivery, return receipt requested, to the
addresseés
business mailing address or by investigators appointed by the Secretary of State
or shall be directed for service to the sheriff of the county where such witness
resides or is found or where such person in custody of any books, records, or
papers resides or is found. The fees and mileage of the sheriff, witness, or
person shall be paid from the funds in the state treasury for the use of the
Secretary of State in the same manner that other expenses of the Secretary of
State are paid.
(c)
In case of refusal to obey a subpoena issued under any Code section of this
chapter to any person, a superior court of appropriate jurisdiction, upon
application by the
Secretary
of State, may issue to the person an order
requiring him or her to appear before the court to show cause why he or she
should not be held in contempt for refusal to obey the subpoena. Failure to obey
a subpoena may be punished by the court as contempt of court.
(d)
The Secretary of State is authorized to hold investigative hearings with respect
to any matter under this chapter. A hearing as provided for in this Code section
may be conducted by any person designated by the Secretary of State for that
purpose. A transcript of the testimony and evidence resulting from such hearing
may, but need not, be transcribed by the Secretary of State. A report of the
investigative hearing shall be included in the investigative report prepared for
the Secretary of State. Any recommendations of the designated representative of
the Secretary of State shall be advisory only and shall not have the effect of
an order of the Secretary of State.
(e)
The
Secretary of State shall have the
authority to inspect and review or cause to be reviewed the books of each
registrant under this chapter. Said inspection or review may be conducted by the
Secretary
of State as frequently as the
Secretary
of State may deem
appropriate.
10-14-16.
(a)
The owner of every cemetery may make, adopt, and enforce rules and regulations
for the use, care, control, management, restriction, and protection of such
cemetery and of all parts and subdivisions thereof; for restricting, limiting,
and regulating the use of all property within such cemetery;
for
regulating and preventing the introduction and care of plants or shrubs within
such grounds; for regulating the conduct
of persons and preventing improper assemblages therein; and for all other
purposes deemed necessary by the owner of the cemetery for the proper conduct of
the business of the cemetery and the protection of safeguarding the premises and
the principles, plans, and ideas on which the cemetery was organized. From time
to time, the owner may amend, add to, revise, change, modify, or abolish such
rules and regulations. Such rules and regulations shall be plainly printed or
typewritten,
posted
conspicuously, and maintained, subject to
inspection and copy, at the usual place for transacting the regular business of
the cemetery; provided, however, that no cemetery to which the provisions of
this chapter are applicable shall have the power to adopt any rule or regulation
in conflict with any of the provisions of this chapter or in derogation of the
contract rights of lot owners or owners of burial rights. Upon request, the
registrant shall provide a copy of said rules and regulations to any person who
requests it.
(b)
The owner of every cemetery shall have the further right to establish reasonable
rules and regulations regarding the type material, design, composition, finish,
and specifications of any and all merchandise to be used or installed in the
cemetery. Subject to the provisions of this Code section and rules
of the
Secretary of State, reasonable rules may
further be adopted regarding the installing by the cemetery or others of all
merchandise to be installed in the cemetery. Such rules and regulations
shall be
posted conspicuously and maintained,
subject to inspection and copy, at the usual place for transacting the regular
business of the cemetery. Upon request, the registrant shall provide a copy of
said rules and regulations to any person requesting it. No cemetery owner shall
have the right to prevent the use of any merchandise purchased by a lot owner or
owner of a burial right, his or her representative, his or her agent, or his or
her heirs or assigns from any
source,
provided the merchandise meets all rules and regulations.
(c)
All registrants shall have a full and complete schedule of all charges for grave
lots, burial rights, burial or funeral merchandise, and burial or funeral
services provided by the registrant plainly printed or
typewritten,
posted conspicuously, and maintained, subject to inspection and copy, at the
usual place for transacting the regular business of the cemetery. Upon request,
the registrant shall provide a copy of said schedule of charges to any person
requesting it.
10-14-17.
(a)
It shall be unlawful for any person:
(1)
To sell or offer to sell any burial rights, burial or funeral services, or
burial or funeral merchandise by means of
any oral
or written untrue statement of a material
fact or any omission to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they are made,
not misleading, the buyer not knowing of the untruth or omission, if such person
shall not sustain the burden of proof that he did not know, and in the exercise
of reasonable care could not have known, of the untruth or
omission;
(2)
To sell or offer to sell any, burial rights, burial or funeral services, or
burial or funeral merchandise in violation of any provision of this chapter or
rule, regulation,
or order
promulgated or issued by the Secretary of State under any provision of this
chapter;
(3)
Except as otherwise provided in paragraph (4) of this subsection, in connection
with the sale of preneed merchandise or services requiring funds to be deposited
into a preneed escrow account, to fail to refund, within three business days of
the request of the purchaser or the
purchaseŕs
heirs or assigns, the sales prices
plus
applicable interest as determined according to rules promulgated by the
Secretary of State, provided that such request is made prior to the earlier
of:
(A)
The delivery of the merchandise or services; or
(B)
The death of the person for whose interment or inurnment the merchandise or
services are intended to be used.
Certain
solicitations during a
persońs
last illness relating to refunds shall be a violation of Part 2 of Article 15 of
Chapter 1 of this title, the 'Fair Business Practices Act of 1975,' as set out
in Code Section 10-1-393.7;
(4)
In connection with the sale of monuments or vaults, to fail to refund within
three business days of the request of the purchaser or the
purchaseŕs
heirs or assigns the full sales price, without interest, provided that such
request is made prior to the earlier of:
(A)
The delivery of the merchandise or services; or
(B)
The death of the person for whose interment or inurnment the monument or vault
is intended to be used.
Certain
solicitations during a
persońs
last illness relating to refunds shall be a violation of Part 2 of Article 15 of
Chapter 1 of this title, the 'Fair Business Practices Act of 1975,' as set out
in Code Section 10-1-393.7;
(5)
To misappropriate, convert, illegally withhold, or fail to account for any trust
funds, escrow funds, or other funds established or maintained pursuant to this
chapter;
(6)
Knowingly to cause to be made, in any document filed
with the
Secretary of State or in any proceeding
under this chapter, any statement which is, at the time it is made and in the
light of the circumstances under which it is made, false or misleading in any
material respect;
(7)
To sell, offer to sell, solicit offers to buy, or otherwise engage in the sale
of funeral services if such person is not a licensed funeral director;
or
(8)
To sell any grave space which has not been platted and pinned.
(b)
It shall be unlawful for any person in connection with the ownership, offer,
sale, or purchase of any burial rights, burial or funeral services, or burial or
funeral merchandise, directly or indirectly:
(1)
To employ any device, scheme, or artifice to defraud; or
(2)
To engage in any transaction, act, practice, or course of business which
operates or would operate as a fraud or deceit upon the purchaser or
seller.
(c)
In connection with the sale or installation of merchandise, it shall be unlawful
for a cemetery company to:
(1)
Impose any condition upon the installation of merchandise obtained from a third
party, other than to require installation by a registrant under this chapter
or as may
be otherwise permitted by the rules and regulations of the Secretary of
State;
(2)
Charge a fee for the installation of merchandise purchased or obtained from and
to be installed by a person or firm other than the cemetery company or its
agents, provided that the cemetery owner may charge a fee not to exceed
$50.00
to reimburse the cemetery owner for its actual costs incurred in assisting in
the siting of a monument on the lot on which it is to be installed, supervision
and inspection of the installation to ensure compliance with the rules and
regulations of the cemetery, and any administrative functions associated with
the installation; provided, further, any such fee is properly disclosed and
published as required by this chapter and charged regardless of whether the
installer is or is not the cemetery owner or affiliated therewith;
(3)
Refuse to mark the place on the grave where the merchandise is to be installed
and inspect the installation when completed to ensure compliance with cemetery
rules and regulations;
(4)
Require any person or firm that installs, places, or sets merchandise to pay any
fee other than any fee charged pursuant to paragraph (2) of this
subsection;
(5)
Tie the purchase of any grave space or burial right to the purchase of
merchandise from or through the seller or any other designated person or
corporation;
(6)
Refuse to
provide care or maintenance for any portion
of a grave site on which a monument has
been placed, provided that installation has been in accordance with lawful rules
and regulations of the cemetery;
(7)
Attempt to waive liability with respect to damage caused by cemetery employees
or agents to merchandise after installation, where merchandise or installation
service is not purchased from the cemetery company providing grave space or from
or through any other person or corporation designated by the person authorized
to sell grave space or the cemetery company providing grave space; provided,
however, that no cemetery company may be held liable for the improper
installation of merchandise where merchandise is not installed by the cemetery
company or its agents;
(8)
After the
promulgation of rules and regulations relating to the subject matter of this
subsection by the Secretary of State, to
require any person who installs, places, or sets merchandise to obtain any form
of insurance, bond, or surety or make any form of pledge, deposit, or monetary
guarantee as a condition of entry or access to cemetery property or the
installation of merchandise thereon, other than as may be in accordance with
said rules and regulations.
(d)
Other than the fees for the sale of burial rights, burial or funeral
merchandise, and burial or funeral services, no other fee may be directly or
indirectly charged, contracted for, or received by a cemetery company as a
condition for a customer to use any burial right, burial or funeral merchandise,
or burial or funeral service, except for:
(1)
Charges paid for opening and closing a grave and vault
installation;
(2)
Charges paid for transferring burial rights from one purchaser to another;
however, no such fee may exceed
$50.00
and such fee must have been disclosed in writing to the owner at the time of the
initial purchase of the burial right from the cemetery;
(3)
Charges for sales, documentary, excise, and other taxes actually and necessarily
paid to a public official, which charges must be supported in fact;
(4)
Charges for credit life and credit disability insurance, but only as requested
by the purchaser, and the premiums for which do not exceed the applicable
premium chargeable in accordance with the rates filed with the Insurance
Commissioner; or
(5)
Charges for interest on unpaid balances in accordance with applicable
law.
Nothing
herein shall prohibit a cemetery company from charging a reasonable fee for
services it provides in connection with a lawful disinterment, provided such
charges do not exceed the greater of the cemetery
companýs
normal and customary charges for interment or the actual costs incurred by the
cemetery directly attributable to such disinterment. Nothing herein shall
prohibit a cemetery from charging a reasonable fee for actual costs it incurs
due to the commencement of a funeral service at a time other than previously
agreed by the cemetery company, the funeral establishment, and the owner of the
burial rights, or his or her heirs and assigns, provided such charges are
calculated in a manner which is disclosed and published as required by this
chapter and that such charges are directly attributable to extra costs incurred
by the cemetery company due to such late commencement.
(e)
In connection with the sale of burial rights, burial or funeral merchandise, or
burial or funeral services, it shall be unlawful for any person to fail to
comply with the provisions of Article 1 of Chapter 1 of this title, 'The Georgia
Retail Installment and Home Solicitation Sales Act' or Part 2 of Article 15 of
Chapter 1 of this title, the 'Fair Business Practices Act of 1975.' For the
purposes of this subsection, burial rights, burial or funeral services, and
burial or funeral merchandise shall constitute goods as that term is used in
said article and said part.
(f)
In connection with the installation of a monument:
(1)
It shall be unlawful for any person installing said monument to fail to comply
with the lawful rules and regulations of the cemetery regarding monument
installation, provided that said rules and regulations are provided in writing
to the installer prior to the installation. In the event such installation is
not in conformity with said rules and regulations, the installer shall be liable
to the cemetery for the actual cost of correcting such installation so it will
be in conformity, provided that:
(A)
The cemetery has notified the installer by certified mail, return receipt
requested, of the reasons for the nonconformity not later than one year after
the date of the installation; and
(B)
The installer, provided it is registered under this chapter, shall have had not
less than 30 days from its receipt of such notice to correct such nonconformity;
and