06 HB910/SCSFA/3
SENATE
SUBSTITUTE TO HB 910
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 14 of Title 10 of the Official Code of Georgia Annotated, relating
to cemetery and funeral services, Code Section 36-72-2 of the Official Code of
Georgia Annotated, relating to definitions relating to abandoned cemeteries and
burial grounds, and Title 43 of the Official Code of Georgia Annotated, relating
to professions and businesses, so as to provide for definitions; to provide for
certain requirements for preneed dealers relating to escrow accounts; to provide
for powers under Chapter 14 of Title 10; to provide for certain license
requirements prior to selling burial rights or merchandise; to provide for
certain fees; to regulate the profession of cemeterians; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
14 of Title 10 of the Official Code of Georgia Annotated, relating to cemetery
and funeral services, is amended by striking paragraphs (2), (3), and (27) of
Code Section 10-14-3, relating to definitions, and inserting in their place new
paragraphs (2), (3) and (27) to read as follows:
"(2)
'Board' means the State Board of
Funeral
Service
Cemeterians
as described and authorized in Chapter
18
8B
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,
including without limitation a mausoleum, cremation urn, cremation bench,
cremation marker, or
cremorial."
"(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,
polypropolene,
sectional concrete enclosures,
and
crypts, and
wooden
enclosures."
SECTION
2.
Said
chapter is further amended in said Code Section 10-14-3, relating to
definitions, by inserting a new paragraph to be designated paragraph (32.1) to
read as follows:
"(32.1)
'Principal' means a sum set aside or escrowed exclusive of income or interest or
other return
thereon."
SECTION
2A.
Said
chapter is further amended by inserting following Code Section 10-14-3 a new
Code section to read as follows:
"10-14-3.1.
The
board shall have all administrative powers and other powers necessary to carry
out the provisions of this chapter, including the authority to promulgate rules
and regulations, and the Secretary of State shall delegate to the board all such
duties otherwise entrusted to the Secretary of State; provided, however, that
the Secretary of State shall have sole authority over matters relating to the
regulation of funds, trust funds, and escrow accounts and accounting and
investigations concerning such
matters."
SECTION
3.
Said
chapter is further amended by striking paragraph (1) of subsection (d) of Code
Section 10-14-7, relating to preneed escrow accounts, and inserting a new
paragraph (1) and a new subsection to be designated subsection (e.1) to read as
follows:
"(d)(1)
Funds
may
shall
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, not
exceeding the lesser of 30 days from receipt of application for release or the
time within which a preneed dealer is required by law to provide a refund to a
purchaser. 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."
"(e.1)
In the case of release of escrowed funds to a purchaser at the
purchaseŕs
request pursuant to paragraph (1) of subsection (d) of this Code section, a sum
not less than the lesser of 10 percent of the escrowed amount or one-half of the
interest earned upon such funds as of the date of release, as provided by the
Secretary of State by rule or regulation, may be retained by the preneed dealer
as administrative
costs."
SECTION
4.
Said
chapter is further amended by striking Code Section 10-14-10, relating to
minimum acreage for cemeteries and exceptions, and inserting in lieu thereof the
following:
"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
1998,
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
1998,
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."
SECTION
5.
Said
chapter is further amended by striking subsection (a) of Code Section 10-14-14,
relating to administration of chapter and rules and regulations, and inserting
in its place a new subsection (a) to read as follows:
"(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."
SECTION
6.
Said
chapter is further amended by adding a new subsection (j) and by striking
paragraph (7) of subsection (a), paragraph (2) of subsection (c), paragraph (2)
of subsection (d), and subsection (h) of Code Section 10-14-17, relating to
enumeration of prohibited acts, and inserting in their respective places the
following:
"(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
(7.1)
To sell, offer to sell, solicit offers to buy, or otherwise engage in the sale
of burial rights or burial merchandise if such person is not registered pursuant
to the provisions of this chapter;
or"
"(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
$125.00
to reimburse the cemetery owner for its
actual
reasonable
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;"
"(2)
Charges paid for transferring burial rights from one purchaser to another;
however, no such fee may exceed
$50.00
$75.00
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;"
"(h)
The contract rights of any purchaser of preneed merchandise shall be freely
transferable without fee
except as
provided in this
chapter."
"(j)
The fees set forth in this Code section shall be annually adjusted to 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 adjustments to the amount of said fees by
rule."
SECTION
7.
Code
Section 36-72-2 of the Official Code of Georgia Annotated, relating to
definitions relative to abandoned cemeteries and burial grounds, is amended by
striking in its entirety paragraph (5) and inserting in lieu thereof the
following:
"(5)
'Cemetery' or 'cemeteries' means any land or structure in this state dedicated
to and
used, or
intended to be used, for interment of
human remains. It may be either a burial park for earth interments or a
mausoleum for vault or crypt interments or a combination of one or more
thereof."
SECTION
8.
Title
43 of the Official Code of Georgia Annotated, relating to professions and
businesses, is amended by adding a new chapter to be designated Chapter 8B to
read as follows:
"CHAPTER
8B
43-8B-1.
This
chapter shall be known and may be cited as the 'Georgia Cemeterians Board
Act.'
43-8B-2.
As
used in this chapter, the term:
(1)
'Board' means the State Board of Cemeterians established by this
chapter.
(2)
'Cemeterian' means a person registered as a cemetery owner pursuant to Chapter
14 of Title 10 or a cemetery manager.
(3)
'Cemetery' means a cemetery as defined in Chapter 14 of Title 10.
43-8B-3.
The
practice of the profession of a cemeterian, as defined in this chapter, is
declared to be a business or profession affecting the public interest and
involving the health and safety of the public.
43-8B-4.
There
shall be established in the Office of the Secretary of State the State Board of
Cemeterians to be constituted as provided in this chapter with the powers,
duties, and authority vested in such board by this chapter.
43-8B-5.
(a)
The board shall consist of six members who shall be practicing cemeterians with
a minimum of five years of registration as such in this state immediately
preceding their appointment and one member who shall have no connection
whatsoever with the cemetery profession but who shall have a recognized interest
in consumer affairs and in consumer protection concerns.
(b)
The members of the board shall be appointed by the Governor for terms of office
of six years and all vacancies occurring on the board shall be filled by the
Governor. When an appointment is made to fill a vacancy caused by death or
resignation of a member, such appointment shall be for the remainder of the
unexpired term of the member whose death or resignation caused the vacancy so
filled.
(c)
A majority of the members of the board may remove any member who misses three or
more consecutive regular meetings of the board without a medical reason and may
declare that position on the board to be vacant. A member so removed shall not
be eligible for reappointment until the expiration of the term of office for
which such person was serving. The Governor shall have the power to remove from
office any member of the board for willful neglect of duty or for conviction of
a crime involving moral turpitude.
43-8B-6.
(a)
The board shall each year elect from its members a president whose term shall be
one year and who shall serve during the period for which elected and until a
successor shall be elected.
(b)
The board shall meet at least yearly and more often as the proper and efficient
discharge of its duties may require.
(c)
Each member of the board shall be reimbursed as provided for in subsection (f)
of Code Section 43-1-2.
(d)
No inspector shall own, operate, or be employed by any cemetery or perform any
services on behalf thereof.
43-8B-7.
For
the purpose of better protection of life and health the board is
authorized:
(1)
To fix and prescribe minimum standards of general appearance of
cemeteries;
(2)
To undertake such other duties and to exercise such other powers as may from
time to time be prescribed by law;
(3)
To adopt a common seal; and
(4)
To make and promulgate rules and regulations not inconsistent with the laws of
this state for the regulation of such board and pursuant to the provisions of
Chapter 14 of Title 10. All rules and regulations of the Secretary of State
promulgated pursuant to the authority of Chapter 14 of Title 10 and existing
immediately prior to July 1, 2006, which are not inconsistent with this chapter
shall continue in effect until repealed, amended, or otherwise changed by the
board."
SECTION
9.
All
laws and parts of laws in conflict with this Act are repealed.